Legal and Literary Fictions

Abstract

Commentators on legal fictions often apply the term to doctrines that make the law’s image of the world seem distorted, bizarre, or fanciful. When doctrines such as corporate personhood and civil death are seen as fictional, this characterization depends on the starting point, but also on what flows from it. The fiction, it seems, holds the seed of a plot, and this latent narrative potential explains why legal fictions are sometimes likened to literary fictions. However, given that common-law judgments present themselves as rooted in precedent and are written in anticipation of their own use as precedents, this narrative potential is an ordinary feature of the law, not a distinctive quality of a few judgments or doctrines. Judgments, like Tribbles, are born pregnant, always capable of spawning. To single out, as fictions, a few that are wrapped in openly metaphorical language would imply that other doctrines, sparer of their means and more banal in their mode of expression, lack this quality. Thus to question the characterization of corporate personhood as a legal fiction is not to limit the scope of narratological inquiry in legal analysis, but to broaden that scope to include areas not usually considered to exhibit such self-consciously literary features as metaphor. As to legal fictions in particular, I argue that if they display a generative potential that invites analogy to literary fictions, that kinship owes more to the ways in which both fictional modes solicit a particular kind of attention, than to a shared ability to spin out narrative arrays. To develop these ideas, I consider the relation between patent misuse and copyright misuse; the question of whether steamboats are "floating inns"; the relation between legal fictions and what recent scholarship by literary critics has called "unnatural narrative"; and Duchamp's "Fountain" (1917).

Keywords: legal fictions