Legal Fictions
![handle is hein.journals/illlr25 and id is 525 raw text is: LEGAL FICTIONS*
By L. L. FULLERt
INTRODUCTION
In the first installment of this series an attempt was made to
answer the question, what is a legal fiction? The next problem
to be addressed is, why does the legal fiction exist? What motives
lead courts and legal writers to employ the fiction?
This inquiry will, of necessity, lead us into a conjectural field.
One can scarcely conceive of a more complex and speculative prob-
lem than that of human motives. The motives which lead to a re-
sort to fiction are as complex, as remote, and as numerous as the
springs of human conduct generally. And yet in spite of the dif-
ficulties of the inquiry, it is submitted that no truly productive
classification of fictions can be made that is not based on motives.
Every attempt to classify fictions on the basis of mere logical or
grammatical form is doomed to sterility.90 A fiction becomes un-
derstandable only when we know why it exists, and we can know
that only when we know what actuated its author.
The ultimate end of our inquiry is to make possible an in-
telligent criticism of the worth of the fiction as a device of legal
thought and expression. From this point of view it is fairly obvious
that an examination of motives cannot be avoided. But even if we
renounce the privilege of criticism and are interested in the fiction
merely as a part of positive law, as an expression of law as it
is, still we cannot forego an inquiry into motives. It is essential
that we know why courts resort to fiction if we are to understand
what is meant by their fictions. One of the objections most com-
monly raised against the fiction is that it does not define its field
*Continued from the December, 1930, issue of this REvIEw.
tProfessor of Law, University of Illinois.
90. One can find all kinds of classifications in the literature of fictions.
Thus, there are fictions where the effect exceeds the cause, where the effect
is produced without a cause, and where the effect precedes the cause
(Lecocq De la fiction comme procd6 juridique [1914] 32) ; affirmative and
negative fictions (Best Presumptions of Law and Fact!' [1844] sec. 21);
restricted and unrestricted fictions (Bernh5ft Zur Lehre von den Fiktionen
[1907] 9); rhetorical, symbolic, classificatory, and analogical fictions (Mal-
lachow Rechtserkenntnistheorie und Fiktionslehre [1922]. 29). I have
attempted in this series to make no distinctions or classifications which are
not productive. To me it has seemed that the productive principle of classi-
fication is that of motives.
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