Legal Fictions, Assumptions and Comparisons

Abstract

Pierre Olivier distinguishes between two radically different conceptions of legal fictions: on the one hand, the conception of legal fiction developed by the commentators of the Middle Ages, which culminates in Bartolus’s definition; on the other hand, the conception developed by the nineteenth century German scholar Gustav Demelius, who was followed, among others, by Joseph Esser. The main difference between the two approaches is individuated by Olivier in the fact that, while the former consider legal fictions as essentially implying an actual fictional element, the latter deny this. In other words, according to Demelius and those who follow him, the term “legal fiction” is a misnomer. In this article, I first provide an example of a legal fiction. In the second and third section, I rely on this example to analyze and assess the two competing accounts. Finally, in the fourth part, I advance a syncretistic account of legal fictions, which should thus point to a possible middle ground between the two competing positions. As it is often the case, there is probably some truth to both accounts; the problem – I will argue – is that both theories tell only a part and not the whole of the story. More precisely, it will be argued that legal fictions essentially involve the structure of “as if”-statements, and that the one-sidedness of the two competing accounts derives from the fact that one focuses too much on the “if”-component (the assumption), whereas the other focuses too much on the “as”-component (the comparison).