I would like to begin our blog series for this module with some reflections on the legal fiction writings, not only because they deal with a topic that is interesting in its own right but because they also exemplify the value of a humanities approach to law.
Having studied corporate governance I cannot help but be aware of the long running scholarly debate on what is possibly the most cited example of a legal fiction: the issue of separate legal corporate personality. Whether the company ‘really is’ legally separable from its members is to a certain extent still contested, with scholars on both sides adducing evidence in support of their views and entire theories of corporate governance built on the foundations of legal personality as a fiction.
What the standard corporate governance literature fails to consider, and humanities can help us to answer, is precisely why the debate exists at all. As Fuller states, maybe the issue is one of terminology only (p12). The debate as to the ‘reality’ of separate corporate legal personality could then be characterised as a dispute over the appropriateness of using the word ‘person’ in a particular context. The choice of a certain six letter word may therefore be at the foundation of a decades long scholarly argument. It is fascinating to consider how different legal history may have been if another word or phrase had been chosen: ‘entity’, perhaps, or the somewhat less elegant ‘right and duty bearing unit’ (p14).
Law and humanities here offers an alternative perspective that goes unnoticed by the standard scholarship, much of which is law and economics-based. This perspective is both unsettling (in that so much may be contingent on just one word) and refreshing.
One of the points I found particularly interesting in relation to the debate about personhood was Vaihinger’s example of the historical employment of the legal fiction that held women should be ‘treated as if they were minors’. It could be argued that such a statement is wrong from the perspective of human rights or on the basis of egalitarianism but that does not quite account for the particular harm that is attributable to the form the statement takes. The definition of a legal fiction is a false statement that is made with a certain utility or a statement made with a conscious awareness of its falsity. The problem then with legal fictions is that their continual use often obscures the underlying falsity of the statement. The more that terms are used, the more they become detached from their false character meaning that they become common parlance without a consciousness that they are taken up in recognition of their expedience.
As mentioned above, not only does the legal system contain legal fictions but the claim can be made that the legal system is by nature fictious. By this it is meant that the law creates subjects in order to regulate them. According to Butler, this is achieved by the performance of speech acts which require a continual repetition of discourse. As Umphrey has noted, the performative aspect of law is highlighted in the conduct of trials in which conceptions of subjectivity are reinvoked and reinstated in a chain of events rather than being singular and discrete moments. This in part develops a sense of agency because the recognition that the law requires repetition to enforce action diffuses its authority. As Butler has argued, this is achieved on the basis that the repetition may come to be reinvoked against the law and the subjectivity it seeks to invoke becomes resignified. Importantly, the recognition that law is a regulatory fiction that creates its own subjects leads to the recognition that there is some sort of gap between the normative conceptions law seeks to invoke and the individual that is interpellated by law. Whilst fictions are everywhere and may become obscured over time so that their falsity becomes obsfucated, the recognition that the individual is distinct from the subject that is invoked by law is an important element of agency.
The dualism in the case of corporate legal personality of language and legal fiction is fascinating. The question surely is whether this parallel can be extrapolated into other forms of established legal fiction. The one that always fascinates me, as I have made clear on the course is that of the Lost Modern Grant (LMG). The LMG is the jewel in the crown of judicial legal fiction, and facilities the functioning of prescription doctrine, allowing the court to presume in land law cases that meet the long use criteria and the test of nec vi, nec clam, nec precario that a property grant that favours the claimant exists, and has simply been lost in some ancient administrative reorganisation.
I would contend that the LMG does not hinge as much on its determinative language as legal personality. Few legal academics debate the meaning of the term ‘grant’, though it is unlikely to be less important to the legal sphere then ‘personality’. The difference in the levels of term based discourse might stem from the controversial nature of the legal person, with the corporate veil protecting individuals from the negative retributive effects of bad dealing, something that naturally riles those seeking legal retribution (normatively financial bodies who gave money to businesses, or individuals who have suffered a loss).
Our inability to apply the same test to the two different legal fictions demonstrates two things, firstly that legal fictions can have substantially different natures, something which in part explains the removal of some from the legal spectrum whilst others remain. Second, and most pertinently, it demonstrates that there is no one way to understand the concept of the legal fiction, and likely no single argument that can be used to encompass them all. Each one must be deal with individually if one seeks to explore anything but the broadest and most all encompassing levels of the legal fictions nature.
I agree that legal fictions demonstrate the value of looking at law from a humanities perspective, and I think this was extremely evident throughout the articles for Legal Fictions 2. Language has a way of creating subjects. Without recognizing this, those subjects will continue to be reframed under the same linguistic patterns, and will continue to make subjects. The problem with these subjects is that they rely on norms which are created by dominant social contexts, and they work against any subjects who fall outside of these ideas. Law and humanities opens up the idea that law is simply a language and can allow us to use this knowledge to our advantage; to understand an explain the ‘stock story’ element of law and choose to reject it, or to use it to our advantage.