Attractive Nuisances
The second packet of materials contained an excerpt from Fuller’s article on legal fictions that
discussed the attractive nuisance doctrine. Reread those pages (which are also included in this packet)
and the two cases which follow. To what extent is Fuller’s analysis supported by the cases?
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LEGAL FICTIONS
Without intending any disrespect by so flippant a comparison
it seems to me that the same thing may be true of a judge. A
judge may find himself forced to employ a fiction because of his
inability to state his result. in non-fictitious terms.
After all, the human mind is a machine subject to certain
limitations. Perhaps the greatest of these limitations consists in
the fact that human reason must always proceed by assimilating
that which is unfamiliar to that which is already known. The situations which may be presented to a judge for decision are infinite
in number; the intellectual equipment of rules, distinctions, concepts, and words, upon which the judge must rely in dealing with
these situations, is limited and finite. We are forced to deal with
new problems in terms of an existing conceptual apparatus which
in the nature of things can never be entirely adequate for the future.
"In order to understand, a certain degree of intellectual stability
is needful, and stability cannot be obtained except at the sacrifice
of truth. Truth is in a state of perpetual oscillation; its mobility,
its variety is disconcerting. We cannot grasp it without falsifying
it." 113 By "falsifying" reality I take it Tourtoulon means no more
than that we find ourselves compelled to force new situations, which
bob up out of the eternal flux of reality, into the confining framework of an existing intellectual apparatus.
It has already been shown how legal categories are constantly
being remade to fit new conditions. Words like "possession,"
"estate" and "delivery" have, in the course of legal history, undergone rather obvious expansion. In a less obvious way this is true
of all legal categories, and is going on constantly. Generally we do
not use the term "fiction" in describing this process, for the simple
reason that we are unaware of the process itself. This adaptation
is so inconspicuous and gradual that it does not impress itself on
our minds at all. It is only when a particular step in this process
of adaptation is unusually bold and cutting that we cry, "Fiction !"
Often the term "fiction" involves, not simply the consciousness that
a particular adaptation has taken place, but that it has taken place
in an ungraceful and inelegant manner; that whereas Category A
was rather roughly and violently stretched to cover the new situation,
Category B would have covered it much more neatly--and with only
a very little stretching. But the essential fact remains: The fiction
is often but a cruder outcropping of a process of intellectual adaptation which goes on constantly without attracting attention.
113. Tourtoulon "Philosophy in the Development of Law" (1922) 395.
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25 ILLIIJOIS LAW REVIEW
The last statement may arouse opposition. Let us test it by
considering as a concrete example what is probably the boldest
fiction to be found in modern law-the "attractive nuisance doctrine."' 1 4
A young girl, living in an industrial district, is injured while
playing with other children on a turntable maintained by a railway on an unfenced lot. A suit is brought on her behalf against
the railway. Is the railway legally responsible for the injury?
Let us attempt to follow the mental processes of the judge deciding
this case.
The existing rules on the liability of a landowner for the condition of his premises are: The landowner owes a duty of care
toward "invitees," toward those whom he has permitted, expressly
or impliedly, to come on his land.1 15 He owes no duty toward
trespassers. It is clear that this child was legally a "trespasser,"
and therefore on the basis of these principles the railway would
seem not to be liable. And yet, for some reason or other, the judge
feels that the case is more like that of the "invitee" than that of
the ordinary trespasser. Should he then base his opinion on that
ground? That would hardly do, because after all the child was
a trespasser"X6-- there seems no escape from that. Shall the judge
then say that the rule is different as to children? That would be
establishing a rather broad proposition. Who would be "children"
within the meaning of the suggested rule? And would the landowner be responsible in a case where the child was aware of the
danger ? 17 Perhaps another tack would be better. Can we say
that the distinguishing feature is the fact that the child was attracted to the land by the structure which resulted in her injury? 18
But again, where is the line to be drawn? People generally, and
114. This doctrine is discussed in Bohlen "The Duty of a Landowner
toward Those Entering His Premises of Their Own Right' (1921) 69
Penn. Law Rev. 340, 347, and Smith "Liability of Landowners to Children
Entering without Permission" (1898) 349 and 434.
The discussion of this doctrine in the text should not be construed as an
attempt to state what the proper rule is, nor as a justification for the fiction
often employed. It is a speculation concerning the possible mental processes
of a hypothetical judge.
115. The matter is not quite so simple as this, but we shall avoid complications which have no direct bearing on the problem discussed.
116. That is, she was a "trespasser" judged by the ordinary legal test;
her entry subjected her to a liability for at least nominal damages.
117. "There is a tendency . . . to deny recovery where it is obvious
that the injured child appreciated the danger and meddled with it in a spirit
of bravado." Bohlen op. cit. note 114 supra at page 350.
118. This is, of course, the notion embodied in the term "attractive
nuisance," but it is by no means clear that this is the determinative factor
in the decisions.
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LEGAL FICTIONS
527
children in particular, may be "attracted" by any number of things.
Perhaps at this point the judge's fancy wanders and the suggestion
half-forms itself in his mind that we should make the test, in conventional legal language, whether the plaintiff was "reasonably"
attracted, whether "as a child of reasonable and ordinary prudence
. "--but this line of thought is dismissed as absurd.""' Should
we strike-out boldly and say that the landowner owes a duty of
care toward all trespassers when he knows, or ought to know, of the
likelihood of their presence on his land? That, too, seems a rather
broad doctrine. In a sense every landowner who has not securely
fenced his property knows that trespassers may be on his land.
Should the judge simply say, "For reasons which are essentially inarticulate and not wholly understood even by myself, I decide for
the plaintiff ?" This is obviously asking a great deal.
Is it not possible that the judge in this dilemma may go back
to the point from which he started, namely, the feeling that, in
some way or other, this case is more like the case of an invitee
than that of the ordinary trespasser. Why not say that the defendant must be "deemed to have invited" the child on to the land?
This brings the case within the cover of existing doctrine and puts
an end to these troublesome attempts to state a new principle.
This case has not been selected as typical of the process now
under discussion, but rather because it is not typical. It is intended
merely to show this: Even in the case of the crudest and most obvious fictions it is possible that the fiction may proceed from purely
intellectual considerations. The judge, whose mental operations
have been outlined, was not thinking of fooling others, nor was he
carried away by an emotional desire to preserve existing doctrine.
Neither was he considering the "convenience" of preserving current
notions. Indeed, he may have been acutely aware that his own
fiction would introduce inconvenience and obscurity into the law.
He was simply seeking a solution for the case, which was intellectually satisfying to himself. And that solution turned out to
involve a forcing of the case into existing categories, instead of
the creation of a new doctrine.
Developing fields of the law, fields where new social and business practices are necessitating a reconstruction of legal doctrine,
119. Some of the distinctions actually developed by the courts seem only
slightly less fanciful than the notion which our judge rejects. The decision
in City of Pekin v. McMahon (1895) 154 Ill. 141, 150, seems to restrict liability to cases involving a device which, "when in motion," is "attractive to
children by reason of their love of motion 'by other means than their own
locomotion.'"
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25 ILLIYOIS LAW REVIEW
nearly always present "artificial constructions," and, in many
cases, outright fictions. 2 0 The doctrine of vicarious liability for
tort began with such notions as that the master should be "deemed
negligent" for hiring a careless servant.O 2' Fictions of this variety,
constructions "feeling the way" toward some principle, may with
justice be called "exploratory fictions." Demogue likens such fictions to the empirical formulas of practical trades. "It frequently
happens that we find the practical instrument for solving difficulties
presented, before we discover the theoretic principles for explaining the excellence of these instruments. . . . The formula
may be discovered before its raison d'etre, as industrial processes
may be known before their scientific explanation."1 2
120. It is interesting to note that the same thing is true in the physical
sciences. In the new physics we find gravitation described in the most
metaphoric, and, one is tempted to say, poetic terms. "Gravitation is due to a
warp in space" (Article "Ether" in the Encyclopedia Britannica 14th ed.);
"Gravitation simply represents a continual effort of the universe to straighten
itself out" (Dampier-Whetham "A History of Science," 1930, 427) ; "Gravitation, as explained by the general theory of relativity, is reduced to 'crinkles'
in space-time" (Russell "Philosophy" 1927, p. 278). We find the path of the
earth around the sun, previously explained as due to a "tug" or "pull" of
the sun, now described as an effort of the earth to take the shortest route
which the nature of surrounding space will permit. (Eddington "The Nature
of the Physical World," 1929, 148.)
Some will be inclined to say, "But these metaphors are merely expository.
They are intended to make concrete for the reader who does not understand
higher mathematics what could be more adequately and unmetaphorically
expressed in a mathematical formula." But we have it from a mathematician
of note that, "Physics is mathematical, not because we know so much about
the physical world, but because we know so little: it is only its mathematical
properties that we can discover." Russell op. cit. 157.
121. The action of case will lie against a master, "in effect, for employing a careless servant." Sharrod v. London etc.. Ry. Co. (1849) 4 Exch. 580.
Another fictitious construction which was employed in developing the doctrine
of vicarious liability for tort was that the master "impliedly commands"
whatever the servant does on his behalf. W~qinore "Responsibility for
Tortious Acts" (1894) 7 Harv. Law Rev. 315, 383.
It is interesting to note a similar development in Austrian law. "Section
1315 of the Austrian Civil Code limits the liability of employers for injuries
caused by employees . . . to negligence in selecting their employees."
(Wurzel "Juridical Thinking" in "The Science of Legal Method" [19171
286, 409.) Wurzel then poihts out how this section was gradually expanded,
in part by such arguments as that "the very circumstance of an employee
being negligent, proves that the employer was not careful in selecting him,"
until, in the case of corporations, we reach this culminating doctrine: "A
juridical person can act only by agents, therefore it is impossible to distinguish between the acts of a corporation and those of its employees; consequently the corporation must be liable for all acts of its agents, the act of
the agent is the act of the corporation." But the development did not stop
even there. On the basis of this section the Austrian courts finally succeeded in imposing an absolute liability on street railways, on the ground
that the mere operation of a street railway amounts to negligence!
(Op.
cit. 411.)
122. "Les notions fondamentales du droit priv" (1911) 242 and 246.
5
Patrick Keffee v Milwaukee & St. Paul Railway Co, 21 Minn. 207 (1875)
YOUNG, J.
In the elaborate opinion of the court below, which formed the basis of the argument for the defendant
in this court, the case is treated as if the plaintiff was a mere trespasser, whose tender years and childish
instincts were no excuse for the commission of the trespass, and who had no more right than any other
trespasser to require the defendant to exercise care to protect him from receiving injury while upon its
turn-table. But we are of opinion that, upon the facts stated in the complaint, the plaintiff occupied a
very different position from that of a mere voluntary trespasser upon the defendant's property, and it is
therefore unnecessary to consider whether the proposition advanced by the defendant's counsel, viz,
that a land-owner owes no duty of care to trespassers, is not too broad a statement of a rule which is
true in many instances.
To treat the plaintiff as a voluntary trespasser is to ignore the averments of the complaint, that the turntable, which was situate in a public (by which we understand an open, frequented) place, was, when left
unfastened, very attractive, and, when put in motion by them, was dangerous to young children, by
whom it could be easily put in motion, and many of whom were in the habit of going upon it to play. The
turn-table, being thus attractive, presented to the natural instincts of young children a strong
temptation; and such children, following, as they must be expected to follow, those natural instincts,
were thus allured into a danger whose nature and extent they, being without judgment or discretion,
could neither apprehend nor appreciate, and against which they could not protect themselves. The
difference between the plaintiff's position and that of a voluntary trespasser, capable of using care,
consists in this, that the plaintiff was induced to come upon the defendant's turn-table by the
defendant's own conduct, and that, as to him, the turn-table was a hidden danger, a trap.
While it is held that a mere licensee “must take the permission with its concomitant conditions, it may
be perils,” ( Hounsell v. Smith, 7 C. B. (N. S.) 731; Bolch v. Smith, 7 H. & N. 836,) yet even such licensee
has a right to require that the owner of the land shall not knowingly and carelessly put concealed
dangers in his way. Bolch v. Smith, per Channell and Wilde, B B.; Corby v. Hill, 4 C. B. (N. S.) 556, per
Willes, J.
And where one goes upon the land of another, not by mere license, but by invitation from the owner,
the latter owes him a larger duty. “The general rule or principle applicable to this class of cases is that an
owner or occupant is bound to keep his premises in a safe and suitable condition for those who come
upon and pass over them, using due care, if he has held out any inducement, invitation or allurement,
either express or implied, by which they have been led to enter thereon.” Per Bigelow, C. J., in Sweeny v.
Old Colony and Newport R. Co., 10 Allen, 368, reviewing many cases. And see Indermann v. Dawes, L. R.
1 C. P. 274; L. R. 2 C. P. 311.
Now, what an express invitation would be to an adult, the temptation of an attractive plaything is to a
child of tender years. If the defendant had left this turn-table unfastened for the purpose of attracting
young children to play upon it, knowing the danger into which it was thus alluring them, it certainly
would be no defence to an action by the plaintiff, who had been attracted upon the turn-table and
injured, to say that the plaintiff was a trespasser, and that his childish instincts were no excuse for his
trespass. In Townsend v. Wathen, 9 East, 277, it was held to be unlawful for a man to tempt even his
neighbor's dogs into danger, by setting traps on his own land, baited with strong-scented meat, by
which the dogs were allured to come upon his land and into his traps. In that case, Lord Ellenborough
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asks, “What is the difference between drawing the animal into the trap by his natural instinct, which he
cannot resist, and putting him there by manual force?” And Grose, J., says, “A man must not set traps of
this dangerous description in a situation to invite his neighbor's dogs, and, as it were, to compel them by
their instinct to come into the traps.”
It is true that the defendant did not leave the turn-table unfastened, for the purpose of injuring young
children; and if the defendant had no reason to believe that the unfastened turn-table was likely to
attract and to injure young children, then the defendant would not be bound to use care to protect from
injury the children that it had no good reason to suppose were in any danger. But the complaint states
that the defendant knew that the turn-table, when left unfastened, was easily revolved; that, when left
unfastened, it was very attractive, and when put in motion by them, dangerous, to young children: and
knew also that many children were in the habit of going upon it to play. The defendant therefore knew
that by leaving this turn-table unfastened and unguarded, it was not merely inviting young children to
come upon the turn-table, but was holding out an allurement, which, acting upon the natural instincts
by which such children are controlled, drew them by those instincts into a hidden danger; and having
thus knowingly allured them into a place of danger, without their fault, (for it cannot blame them for not
resisting the temptation it has set before them,) it was bound to use care to protect them from the
danger into which they were thus led, and from which they could not be expected to protect
themselves.
We agree with the defendant's counsel that a railroad company is not required to make its land a safe
play-ground for children. It has the same right to maintain and use its turn-table that any landowner has
to use his property. It is not an insurer of the lives or limbs of young children who play upon its
premises. We merely decide that when it sets before young children a temptation which it has reason to
believe will lead them into danger, it must use ordinary care to protect them from harm. What would be
proper care in any case must, in general, be a question for the jury, upon all the circumstances of the
case.
The position we have taken is fully sustained by the following cases, some of which go much farther in
imposing upon the owner of dangerous articles the duty of using care to protect from injury children
who may be tempted to play near or meddle with them, than it is necessary to go in this case. Lynch v.
Nurdin, 1 Q. B. 29; Birge v. Gardiner, 19 Conn. 507; Whirley v. Whiteman, 1 Head, 610.
It is true that, in the cases cited, the principal question discussed is not whether the defendant owed the
plaintiff the duty of care, but whether the defendant was absolved from liability for breach of duty, by
reason of the fact that the plaintiff was a trespasser, who, by his own act, contributed to the injury; and
the distinction is not sharply drawn between the effect of the plaintiff's trespass, as a bar to his right to
require care, and the plaintiff's contributory negligence, as a bar to his right to recover for the
defendant's failure to exercise such care as it was his duty to use. But as a young child, whom the
defendant knowingly tempts to come upon his land, if anything more than a technical trespasser, is led
into the commission of the trespass by the defendant himself, and thus occupies a position widely
different from that of an ordinary trespasser, the fact that the courts, in the cases referred to, assumed,
instead of proving, that the defendant owed to a young child, under such circumstances, a duty he
would not owe to an ordinary trespasser, for whose trespass he was not in any way responsible, does
not weaken the authority of those cases. And in Railroad Co. v. Stout, 17 Wall. 657, (a case in all
respects similar to the present,) the distinction insisted on by counsel is taken by Mr. Justice Hunt, and
the circumstance that the plaintiff was in some sense a trespasser is held not to exempt the defendant
from the duty of care. In the charge of the learned circuit judge at the trial of the last named case,
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(reported under the title of Stout v. Sioux City & Pacific R. Co., 2 Dillon, 294,) the elements which must
concur to render the defendant liable, in a case like the present, are clearly stated.
In Hughes v. Macfie, 2 Hurlst. & Coltm. 744, and Mangan v. Atterton, L. R. 1 Exch. 239, cited by
defendant's counsel, there was nothing to show that the defendants knew or had reason to apprehend
that the cellar lid in the one case, or the crushing machine in the other, would be likely to attract young
children into danger. It must be conceded that Hughes v. Macfie is not easily to be reconciled with Birge
v. Gardiner, and that Mangan v. Atterton seems to conflict with Lynch v. Nurdin; but whether correctly
decided or otherwise, they do not necessarily conflict with our decision in this case.
Much reliance is placed by defendant on Phila. & Reading R. Co. v. Hummell, 44 Penn. St. 375, and Gillis
v. Penn. R. Co., 59 Penn. St. 129. In the first of these cases, the plaintiff, a young child, was injured by
coming upon the track while the cars were in motion. The only negligence charged upon the defendant
was the omission to give any signal at or after the starting of the train. If the plaintiff had been crossing
the track, through one of the openings which the company had suffered the people in the neighborhood
to make in the train while standing on the track, and the cars had then been run together upon him,
without any warning, the case would more nearly resemble the present; but the facts, as they appear,
show that the company used abundant care, and that it had no reason to suppose that the plaintiff was
exposed to danger; and the decision is put upon the latter ground, although Strong, J., delivering the
opinion of the court, uses language which lends some support to the defendant's contention in this
case. Gillis v. Penn. R. Co. was properly decided, on the ground that the company did nothing to invite
the plaintiff upon the platform, by the fall of which he was injured, and that the platform was strong
enough to bear the weight of any crowd of people which the company might reasonably expect would
come upon it. Neither of these cases is an authority against, while a later case in the same court, ( Kay v.
Penn. R. Co., 65 Penn. St. 269,) tends strongly to support, the plaintiff's right of action in this case; and
the recent case of Pittsburg A. & M. Passenger R. Co. v. Caldwell, 74 Penn. St. 421, points in the same
direction.
It was not urged upon the argument that the plaintiff was guilty of contributory negligence, and we have
assumed that the plaintiff exercised, as he was bound to do, such reasonable care as a child of his age
and understanding was capable of using, and that there was no negligence on the part of his parents or
guardians, contributing to his injury.
Judgment reversed.
8
Barrett v Southern Pacific, 91 Cal. 296, 27 P. 666 (Cal. 1891)
300 DE HAVEN, J.
This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff
through the negligence of defendant. The plaintiff recovered a judgment for $8,500, and from this
judgment, and an order denying its motion for a new trial, the defendant appeals.
It was shown upon the trial that defendant maintained a railroad turn-table upon its own premises in
the town of Santa Ana. This table was about 150 yards from defendant's depot, and near its enginehouse, and distant 72 feet from a public street, and was not protected by any inclousure, nor did the
defendant employ any person whose special duty it was to guard it. It was provided with a latch and
slot, such as is in common use on such tables, to keep it from revolving. There were several families with
small children residing within a quarter of a mile from the place of its location, and previous to the time
when plaintiff was hurt children had frequently played around and upon it, but when observed by the
servants of defendant were never permitted to do so. At the date of plaintiff's injury he was eight years
of age, and on that day he, with his younger brother, saw other boys playing with the turn-table, and,
giving them some oranges for the privilege of a ride, got upon it, and while it was being revolved
plaintiff's leg was caught between the table and the rail upon the head blocks, and so severely injured
that it had to be amputated. The defendant moved for a nonsuit, which motion was denied. This ruling
of the court, and certain instructions given to the jury, present the questions which arise upon this
appeal.
The appellant contends that it was not guilty of negligence in thus maintaining upon its own premises,
for necessary use in conducting its business, the turn-table in question, and which was fastened in the
usual and customary manner of fastening such tables; that the plaintiff was wrongfully upon its
premises, and therefore a trespasser, to whom the defendant did not owe the duty of protection from
the injury received, and that the court should have so declared, and nonsuited the plaintiff. This view
seems to be fully sustained by the case of Frost v. Railroad Co., decided by the supreme court of New
Hampshire, 9 Atl. Rep. 790. But, in our judgment, the rule as broadly announced and applied in that case
cannot be maintained without a departure from well-settled principles. It is a maxim of the law that one
must so use and enjoy his property as to interfere with the comfort and safety of others as little as
possible consistently with its proper use. This rule, which only imposes a just restriction upon the owner
of property, seems not to have been given due consideration in the case referred to. But this principle,
as a standard of conduct, is of universal application, and the failure to observe it is, in respect to those
who have a right to invoke its protection, a breach of duty, and, in a legal sense, constitutes negligence.
Whether, in any given case, there has been such negligence upon the part of the owner of property, in
the maintenance thereon of dangerous machinery, is a question of fact dependent upon the situation of
the property and the attendant circumstances, because upon such facts will depend the degree of care
which prudence would suggest as reasonably necessary to guard others against injury therefrom; ‘for
negligence in a legal sense is no more than this: the failure to observe for the protection of the interests
of another person that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury.’ Cooley, Torts, 630. And the question of defendant's
negligence in this case was a matter to be decided by the jury in view of all the evidence, and with
reference to this general principle as to the duty of the defendant. If defendant ought reasonably to
have anticipated that, leaving this turn-table unguarded and exposed, an injury, such as plaintiff
suffered, was likely to occur, then it must be held to have anticipated it, and was guilty of negligence in
9
thus maintaining it in its exposed position. It is no answer to this to say that the child was a trespasser,
and if it had not intermeddled with defendant's property it would not have been hurt, and that the law
imposes no duty upon the defendant to make its premises a safe playing ground for children. In the
forum of law, as well as of common sense, a child of immature years is expected to exercise only such
care and self-restraint as belongs to childhood, and a reasonable man must be presumed to know this,
and the law requires him to govern his actions accordingly. It is a matter of common experience that
children of tender years are guided in their actions by childish instincts, and are lacking in that discretion
which, in those of more mature years, is ordinarily sufficient to enable them to appreciate and avoid
danger; and, in proportion to this lack of judgment on their part, the care which must be observed
towards them by others is increased; it has been held in numerous cases to be an act of negligence to
leave unguarded and exposed to the observation of little children dangerous and attractive machinery,
which they would naturally be tempted to go about or upon, and against the danger of which action
their immature judgment interposes no warning or defense. The following are some of the cases in
which this has been held: Railroad v. Stout, 17 Wall. 657; Hydraulic Works Co. v. Orr, 83 Pa. St. 335;
Powers v. Harlow, 53 Mich. 507, 19 N. W. Rep. 257; Nagle v. Railway Co., 75 Mo. 653; Koons v. Railway
Co., 65 Mo. 592; Railway Co. v. Fitzsimmons, 22 Kan. 686; O'Malley v. Railway Co., (Minn.) 45 N. W. Rep.
441; Whirley v. Whiteman, 1 Head. 610. These cases, we think, lay down the true rule. The fact that the
turn-table was latched in the way such tables are usually fastened, or according to the usual custom of
other railroads, although a matter which the jury had a right to consider in passing upon the question
whether defendant exercised ordinary care in the way it maintained the table, was not, of itself,
conclusive proof of the fact. Stout v. Railroad Co., 2 Dill. 294; O'Malley v. Railway Co., supra. Nor is the
liability of the defendant affected by the fact that the table was set in motion by the negligent act of
other boys. This is so held in some of the cases above cited, and the same principle was announced by
this court in Pastene v. Adams, 49 Cal. 87, in which case it was held that a person who had negligently
piled lumber, which had remained in that condition for a long time, was not exempt from damages
sustained by one on whom it self because the lumber was made to fall by the negligence of a stranger.
We see no error in the second instruction given at request of plaintiff. The portion to which exception
was taken is not very well expressed, but we think, taken as a whole, the instruction states the law
correctly. Judgment and order affirmed.
10
Legal Fictions and Modern Personal Jurisdiction Doctrine
In reading the influential article and case excerpted below, consider the role of legal fictions and the
critique of legal fictions in the development of modern personal jurisdiction doctrine.
Felix. Cohen, “Transcendental Nonsense and the Functional Approach,”35 Colum. L. Rev. 809 (1935)
1. The Heaven of Legal Concepts
Some fifty years ago a great German jurist had a curious dream. He dreamed that he had died
and was taken to a special heaven reserved for the theoreticians of the law. In this heaven one met,
face-to-face, the many concepts of jurisprudence in their absolute purity, freed from all entangling
alliances with human life.
[T]he question is raised, “How much of contemporary legal thought moves in the pure ether of
[the] heaven of legal concepts?” One turns to our leading legal textbooks and to the opinions of our
courts for answer. . . .
a. Where is a Corporation?
Let us begin our survey by observing an exceptionally able court as it deals with a typical
problem in legal procedure. In the case of Tauza v. Susquehanna Coal Company, 220 N.Y. 259 (1917), a
corporation which had been chartered by the State of Pennsylvania was sued in New York. Summons
and complaint were served upon an officer of the corporation in New York in the manner prescribed by
New York law. The corporation raised the objection that it could not be sued in New York. The New
York Court of Appeals disagreed with this contention and held that the corporation could be sued in that
state. What is of interest for our purposes is not the particular decision of the court but the mode of
reasoning by which this decision was reached.
The problem which the Court of Appeals faced was a thoroughly practical one. If a competent
legislature had considered the problem of when a corporation incorporated in another State should be
subject to suit, it would probably have made some factual inquiry into the practice of modern
corporations in choosing their sovereigns and into the actual significance of the relationship between a
corporation and the state of its incorporation. It might have considered the difficulties that injured
plaintiffs may encounter if they have to bring suit against corporate defendant in the state of
incorporation. It might have balanced, against such difficulties, the possible hardships to corporations
of having to defend actions in many states, considering the legal facilities available to corporate
defendants. On the basis of facts revealed by such an inquiry, and on the basis of certain political or
ethical value judgments as to the propriety of putting financial burdens upon corporations, a competent
legislature would have attempted to formulate some rule as to when a foreign corporation would be
subject to suit.
The Court of Appeals reached its decision without avowedly considering any of these matters. It
does not appear that scientific evidence on any of these issues was offered to the court. Instead of
addressing itself to such economic, sociological, political, or ethical questions as a competent legislature
might have faced, the court addressed itself to the question, “Where is a corporation?” Was this
corporation really in Pennsylvania or in New York, or could it be in two places at once?
Clearly the question of where a corporation is, when it incorporates in one state and has agents
transacting corporate business in another state, is not a question that can be answered by empirical
observation. Nor is it a question that demands for its solution any analysis of political considerations or
social ideals. It is, in fact, a question identical in metaphysical status with the question which scholastic
11
theologians are supposed to have argued at great lengths, “How many angels can stand on the point of
a needle?” Now it is extremely doubtful whether any of the scholastics ever actually discussed this
question. Yet the question has become, for us, a symbol of an age in which thought without roots in
reality was an object of high esteem.
Will future historians deal more charitably with such legal questions as “Where is a
corporation?” Nobody has ever seen a corporation. What right have we to believe in corporations if we
don’t believe in angels? To be sure, some of us have seen corporate funds, corporate transactions, etc.
(just as some of us have seen angelic deeds, angelic countenances, etc.). But this does not give us the
right to hypostatize, to “thingify,” the corporation, and to assume that it travels about from State to
State as mortal men travel. Surely we are qualifying as inmates of [the] heaven of legal concepts when
we approach a legal problem in these essentially supernatural terms.
Yet it is exactly in these terms of transcendental nonsense that the Court of Appeals approached
the question of whether Susquehanna Coal Company could be sued in New York State. “The essential
thing,” said Judge Cardozo, writing for a unanimous court, “is that the corporation shall have come into
the State.” Why this journey is essential, or how it is possible, we are not informed. The opinion notes
that the corporation has an office in the State, with eight salesmen and eleven desks, and concludes that
the corporation is really “in” New York State. From this inference it easily follows that since a person
who is in New York can be sued there, and since a corporation is a person, the Susquehanna Coal
Company is subject to suit in a New York Court.
The same manner of reasoning can be used by the same court to show that the Dodge Bros.
Motor corporation “cannot” be sued in New York because the corporation (as distinguished from its
corps of New York employees and dealers) is not “in” New York.
Of course, it would be captious to criticize courts for delivering their opinions in the language of
transcendental nonsense. Logicians sometimes talk as if the only function of language were to convey
ideas. But anthropologists know better and assure us that “language is primarily a pre-rational
function.” Certain words and phrases are useful for the purpose of releasing pent-up emotions, or
putting babies to sleep, or inducing certain emotions and attitudes in a political or a judicial audience.
The law is not a science but a practical activity, and myths may impress the imagination and memory
where more exact discourse would leave minds cold.
Valuable as is the language of transcendental nonsense for many practical legal purposes, it is
entirely useless when we come to study, describe, predict, and criticize legal phenomena. And although
judges and lawyers need not be legal scientists, it is of some practical importance that they should
recognize that the traditional language of argument and opinion neither explains nor justifies court
decisions. When the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons
for decisions, rather than poetical or mnemonic devices for formulating decisions reached on other
grounds, then the author, as well as the reader, of the opinion or argument, is apt to forget the social
forces which mold the law and the social ideals by which the law is to be judged. Thus it is that the most
intelligent judges in America can deal with a concrete practical problem of procedural law and corporate
responsibility without any appreciation of the economic, social, and ethical issues which it involves. . . .
2. The functional method
. . . [Functionalism] seeks to discover the significance of [a] fact through a determination of its
implications or consequences in a given mathematical, physical or social context. . . . [T]he functional
method is not a recent invention. . . [In the history of ideas, there have been many] significant attempts
to redefine supernatural concepts in natural terms, to wash ideas in cynical acid (to borrow Holmes’
suggestive phrase).
12
If functional analysis seems novel in the law, this is perhaps traceable to the general
backwardness of legal science, which is the product of social factors that cannot be exorcised by new
slogans.
With these caveats against the notion that the functional approach is a new intellectual
invention which will solve all the problems of law (or of anthropology, economics, or any other science),
we may turn to the significant question: “What are the new directions which the functional method will
give to our scientific research?”
b. The Nature of Legal Rules and Concepts
If the functionalists are correct, the meaning of a definition is found in its consequences. . . . The
consequence of defining law as a function of concrete judicial decisions is that we may proceed to
define such concepts as “contract,” “property,” “title,” “corporate personality,” “right,” and “duty,”
similarly as functions of concrete judicial decisions. . . .
Consider the elementary legal question: “Is there a contract?”
When the realist asks this question, he is concerned with the actual behavior of courts. For the
realist, the contractual relationship, like law in general, is a function of legal decisions. The question of
what courts ought to do is irrelevant here. Where there is a promise that will be legally enforced there
is a contract. So conceived, any answer to the question, “Is there a contract?” must be in the nature of
prophecy, based, like other prophecies, upon past and present facts. . . .
International Shoe Co. v. State of Wash., 326 U.S. 310 (1945)
Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto
power over the defendant's person. Hence his presence within the territorial jurisdiction of court was
prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24
L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or
other form of notice, due process requires only that in order to subject a defendant to a judgment in
personam, if he be not present within the territory of the forum, he have certain minimum contacts with
it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial
justice.’ Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 132 A.L.R. 1357. See
Holmes, J., in McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608, L.R.A.1917F, 458. Compare
Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 316, 319, 63 S.Ct. 602, 604, 606, 87 L.Ed. 777, 145 A.L.R.
1113. See Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375; Hess v. Pawloski, 274 U.S.
352, 47 S.Ct. 632, 71 L.Ed. 1091; Young v. Masci, 289 U.S. 253, 53 S.Ct. 599, 77 L.Ed. 1158, 88 A.L.R. 170.
Since the corporate personality is a fiction, although a fiction intended to be acted upon as though it
were a fact, Klein v. Board of Tax Supervisors, 282 U.S. 19, 24, 51 S.Ct. 15, 16, 75 L.Ed. 140, 73 A.L.R. 679,
it is clear that unlike an individual its ‘presence’ without, as well as within, the state of its origin can be
manifested only by activities carried on in its behalf by those who are authorized to act for it. To say that
the corporation is so far ‘present’ there as to satisfy due process requirements, for purposes of taxation
or the maintenance of suits against it in the courts of the state, is to beg the question to be decided. For
the terms ‘present’ or ‘presence’ are used merely to symbolize those activities of the corporation's
agent within the state which courts will deem to be sufficient to satisfy the demands of due process. L.
Hand, J., in Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139, 141. Those demands may be met by such
contacts of the corporation with the state of the forum as make it reasonable, in the context of our
13
federal system of government, to require the corporation to defend the particular suit which is brought
there. An ‘estimate of the inconveniences' which would result to the corporation from a trial away from
its ‘home’ or principal place of business is relevant in this connection. Hutchinson v. Chase & Gilbert,
supra, 45 F.2d 141.
‘Presence’ in the state in this sense has never been doubted when the activities of the corporation there
have not only been continuous and systematic, but also give rise to the liabilities sued on, even though
no consent to be sued or authorization to an agent to accept service of process has been given. St. Clair
v. Cox, 106 U.S. 350, 355, 1 S.Ct. 354, 359, 27 L.Ed. 222; Connecticut Mutual Life Ins. Co. v. Spratley, 172
U.S. 602, 610, 611, 19 S.Ct. 308, 311, 312, 43 L.Ed. 569; Pennsylvania Lumbermen's Mut. Fire Ins. Co. v.
Meyer, 197 U.S. 407, 414, 415, 25 S.Ct. 483, 484, 485, 49 L.Ed. 810; Commercial Mutual Accident Co. v.
Davis, 213 U.S. 245, 255, 256, 29 S.Ct. 445, 448, 53 L.Ed. 782; International Harvester Co. v. Kentucky,
supra; cf. St. Louis S.W.R. Co. v. Alexander, 227 U.S. 218, 33 S.Ct. 245, 57 L.Ed. 486, Ann.Cas.1915B, 77.
Conversely it has been generally recognized that the casual presence of the corporate agent or even his
conduct of single or isolated items of activities in a state in the corporation's behalf are not enough to
subject it to suit on causes of action unconnected with the activities there. St. Clair v. Cox, supra, 106
U.S. 359, 360, 1 S.Ct. 362, 363, 27 L.Ed. 222; Old Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8, 21, 27
S.Ct. 236, 240, 51 L.Ed. 345; Frene v. Louisville Cement Co., supra, 77 U.S.App.D.C. 133, 134 F.2d 515,
146 A.L.R. 926, and cases cited. To require the corporation in such circumstances to defend the suit
away from its home or other jurisdiction where it carries on more substantial activities has been thought
to lay too great and unreasonable a burden on the corporation to comport with due process.
While it has been held in cases on which appellant relies that continuous activity of some sorts within a
state is not enough to support the demand that the corporation be amenable to suits unrelated to that
activity, Old Wayne Mut. Life Ass'n v. McDonough, supra; Green v. Chicago, Burlington & Quincy R. Co.,
supra; Simon v. Southern R. Co., 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492; People's Tobacco Co. v.
American Tobacco Co., supra; cf. Davis v. Farmers' Co-operative Equity Co., 262 U.S. 312, 317, 43 S.Ct.
556, 558, 67 L.Ed. 996, there have been instances in which the continuous corporate operations within a
state were thought so substantial and of such a nature as to justify suit against it on causes of action
arising from dealings entirely distinct from those activities. See Missouri, K. & T.R. Co. v. Reynolds, 255
U.S. 565, 41 S.Ct. 446, 65 L.Ed. 788; Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915; cf. St.
Louis S.W.R. Co. v. Alexander, supra.
Finally, although the commission of some single or occasional acts of the corporate agent in a state
sufficient to impose an obligation or liability on the corporation has not been thought to confer upon
the state authority to enforce it, Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170,
67 L.Ed. 372, other such acts, because of their nature and quality and the circumstances of their
commission, may be deemed sufficient to render the corporation liable to suit. Cf. Kane v. New Jersey,
242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222; Hess v. Pawloski, supra; Young v. Masci, supra. True, some of the
decisions holding the corporation amenable to suit have been supported by resort to the legal fiction
that it has given its consent to service and suit, consent being implied from its presence in the state
through the acts of its authorized agents. Lafayette Insurance Co. v. French, 18 How. 404, 407, 15 L.Ed.
451; St. Clair v. Cox, supra, 106 U.S. 356, 1 S.Ct. 359, 27 L.Ed. 222; Commercial Mutual Accident Co. v.
Davis, supra, 213 U.S. 254, 29 S.Ct. 447, 53 L.Ed. 782; State of Washington v. Superior Court, 289 U.S.
361, 364, 365, 53 S.Ct. 624, 626, 627, 77 L.Ed. 1256, 89 A.L.R. 653. But more realistically it may be said
that those authorized acts were of such a nature as to justify the fiction. Smolik v. Philadelphia & R.C. &
14
I. Co., D.C., 222 F. 148, 151. Henderson, The Position of Foreign Corporations in American Constitutional
Law, 94, 95.
It is evident that the criteria by which we mark the boundary line between those activities which justify
the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or
quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the
corporation has seen fit to procure through its agents in another state, is a little more or a little less. St.
Louis S.W.R. Co. v. Alexander, supra, 227 U.S. 228, **160 33 S.Ct. 248, 57 L.Ed. 486, Ann.Cas.1915B, 77;
International Harvester Co. v. Kentucky, supra, 234 U.S. 587, 34 S.Ct. 946, 58 L.Ed. 1479. Whether due
process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair
and orderly administration of the laws which it was the purpose of the due process clause to insure.
That clause does not contemplate that a state may make binding a judgment in personam against an
individual or corporate defendant with which the state has no contacts, ties, or relations. Cf. Pennoyer v.
Neff, supra; Minnesota Commercial Men's Ass'n v. Benn, 261 U.S. 140, 43 S.Ct. 293, 67 L.Ed. 573.
But to the extent that a corporation exercises the privilege of conducting activities within a state, it
enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise
to obligations; and, so far as those obligations arise out of or are connected with the activities within the
state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in
most instances, hardly be said to be undue. Compare International Harvester Co. v. Kentucky, supra,
with Green v. Chicago, Burlington & Quincy R. Co., supra, and People's Tobacco Co. v. American Tobacco
Co., supra. Compare Connecticut Mutual Life Ins. Co. v. Spratley, supra, 172 U.S. 619, 620, 19 S.Ct. 314,
315, 43 L.Ed. 569, and Commercial Mutual Accident Co. v. Davis, supra, with Old Wayne Mut. Life Ass'n
v. McDonough, supra. See 29 Columbia Law Review, 187-195.
Applying these standards, the activities carried on in behalf of appellant in the State of Washington were
neither irregular nor casual. They were systematic and continuous throughout the years in question.
They resulted in a large volume of interstate business, in the course of which appellant received the
benefits and protection of the laws of the state, including the right to resort to the courts for the
enforcement of its rights. The obligation which is here sued upon arose out of those very activities. It is
evident that these operations establish sufficient contacts or ties with the state of the forum to make it
reasonable and just according to our traditional conception of fair play and substantial justice to permit
the state to enforce the obligations which appellant has incurred there. Hence we cannot say that the
maintenance of the present suit in the State of Washington involves an unreasonable or undue
procedure.
15
Fuller, "Legal Fictions" (Pt. II) (1930)
LEGAL FICTIONS
process differs from the ordinary fiction because the facts, as stated
by the court, are regarded as the real facts of the case; the fiction,
on the other hand, is an open and avowed pretense.
NoN-HsToRIcAl. FICTIo0Ns-A_BEViAToRY FiCTIONS
Not all fictions have served to introduce reforms into the law;
many of them have been invented for the purpose of expounding
legal doctrine already in existence. And, on the other hand, many
which once served a historical purpose have been retained for their
descriptive power.
These descriptive fictions are often likened to a "convenient
shorthand," and have been called "the algebra of the law."1 42 The
term "abbreviatory fictions" has been employed here with two distinct implications: first, as indicating that the purpose of the fiction is to avoid an inconvenient circumlocution, and secondly, as
indicating that it is possible to avoid the fiction by "spelling the thing
out," that the symbol can be expanded. Justice Holmes showed a
keen appreciation of the function of the abbreviatory fiction when
he said:
a ship is not a person. It cannot do a wrong or make
a contract. To say that a ship has committed a tort is merely a shorthand way of saying that you have decided to deal with it as if it had
committed one, because some man has committed one in fact . . . The
contrary view would indicate that you really believed the fiction that
a vessel had an independent personality as a fact behind the law." 48
The German Civil Code contains a great number of such fictions. 14 To avoid an inconvenient periphrasis it is frequently provided that for certain purposes Situation A shall be treated as if it
were Situation B. This avoids a lengthy repetition of the legal
consequences of Situation B. In Anglo-American law the number
of fictions which are purely expository is probably rather small.
"Corporate personality" (as it is understood today), "constructive
notice," and many of the doctrines of the "relation back" of title
revoke a gift. And yet, if we look to what our courts do, rather than what
they say, it is arguable that the principle receives considerable recognition in
this country. Frequently where the donee proves himself ungrateful, our
courts -are able to find that the gift was _made on the condition of a certain
line of conduct 'by the donee, or was induced by fraud.
142. Tourtoulon "Philosophy in the Development of Law" (1922) 385.
143. Tyler v. Judges of the Court of Registration (1900) 175 Mass.
71, 77. Cf. the dissenting opinion of Loring, p. 82.
144. These German statutory fictions are discussed in Bernh~ft "Zur
Lehre von den Fiktionen" (1907), and Kriickrnain "Warheit und Unwahrheit
im Recht" (1919) 1 Annalen der Philosophie 114.
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25 ILLINOIS LAW REVIEW
may fairly be called abbreviatory devices. Perhaps other fictions
could be enumerated here. But since so many of our fictions, even
when they serve an expository purpose, remain tinged with a persuasive element, or continue to be colored by their historical functions, an adequate discussion would require treatment of each fiction separately and would lead us too far astray from our main
purpose.
The utility of an abbreviatory fiction should be judged purely
in terms of its capacity to effect a felicitous description, by the
inquiry whether it strikes a convenient balance between an inaptly
periphrastic accuracy and a misleading vividness. "If it is very
good, it will outline concrete provisions of the law wonderfully
well; if it is bad, it will outline them very clumsily, and it will be
necessary to complement it with a great number of exceptions in
order to give it its correct value."' 4 5
Ihering applied to the kind of linguistio device now under
discussion the term "dogmatic fiction." His example has not been
followed here for two reasons. First, Ihering's own discussion tends
to indicate that he may be including under the term "dogmatic
fiction" two notions which have been separated here, i. e., the fiction produced historically by "intellectual conservatism" (the fiction
which makes a new situation "thinkable" by converting it into
4 6
While it must be
familiar terms), and the abbreviatory fiction.
47
closely related,
are
fiction
the
of
functions
admitted that the two
it seems convenient to separate off under the heading of "abbreviatory fictions" those cases where the fiction may be avoided if
one is willing to pay the price of a more lengthy and awkward
description. Secondly, the term "dogmatic" seems to imply that the
o
145. Tourtoulonr "Philosophy in the Development of Law" (1922) 391.
146. "Geist des r~mischen Rechts" III' 308. The only definition
the purpose of the "dogmatic fiction" given by him is: ". . . der
Zweck der Fiktion ist hier nicht Erleichterung der Ankniipfung eines neuen
Rechtssatzes an das bisherige Recht, sondern Erleichterung der juristischeis
Vorstellung." Loc. cit., italics mine.
147. The relation between the two may be made clearer by saying that
the abbreviatory fiction is produced by considerations of convenience in expression, while the historical fiction proceeding from intellectual conservatism
is produced by considerations of convenience in conception.
This suggests the question-: Are there fictions which facilitate conception, and not merely expression, but which are non-historical, which cannot
be said to have introduced any definite change in the law? I know of but
one, namely, the notion that in interpreting legislation a court must treat a
statute as if it were a message from someone, whether that "someone" be
called "the sovereign," "the state," "the Volksgeist," or, more prosaically,
simply "the legislator." A message from no one is an idea so foreign to
ordinary conceptions that we refuse to embrace it. See Kornfeld "Allgemeine
Rechtslehre und jurisprudenz" p. 8.
17
LEGAL FICTIONS
fiction has some force or power beyond that of mere description.
Gray thought that "dogmatic fictions, instead of being obstacles
to symmetrical classification, have been introduced and used as
aids to it."'48 With this it is difficult to agree. Any fiction, by
virtue of the fact that it is a fiction, i. e., an inadequate description
of the relations involved, is an obstacle to scientific classification.
The fiction has no mystic power to promote good classification.
The class formed by the corporation and the natural person may
be described without using the word "person," and the use of the
word "person," in so far as it tends to imply a complete equality
between the corporation and the "natural person," is "an obstacle
to symmetrical classification." The function of the abbreviatory
fiction is to make concrete and vivid a classification which might
be described more adequately in terms which would not be felt as
fictitious.
APOLOGETIC OR MERCIFUL FICTIONS
Are all non-historical fictions merely expository? That seems
to have been the assumption of Ihering. Yet there are some
fictions which cannot be identified as ever having introduced a reform into the law, and which, at the same time, are not merely
expository or descriptive. For example, what reform was accomplished by the fiction that "everyone is presumed to know the law?"
And is it a clearer exposition of the thought involved than to say
that ignorance of the law is juristically immaterial?
A fiction of this sort may be called an apologetic or merciful
fiction. It apologizes for the necessity in which the law finds
itself of attributing to the acts of parties legal consequences which
they could not even remotely have anticipated. Although, as understood by the lawyer, this "presumption" merely means that ignorance of the law is immaterial, its formulation as a presumption
of knowledge proceeds from the same tactful impulse which leads
a generous creditor to say, "Let us consider the debt paid," instead
of, "I release you from the debt." The administration of the law
would be a much more pleasant task if the legal consequences attributed to the acts of parties were such as the parties might have
foreseen. This fiction is a way of obscuring the unpleasant truth
that this cannot be the case.
"It is an essentially human tendency to refuse to believe sad events
and to invent happy ones. What the lawmaker sometimes tries to do
is precisely this,--to efface unfortunate realities as far as possible
148. "Nature and Sources of the Law" (1st ed. 1909) 35.
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25 ILLINOIS LAW REVIEW
and to evoke the shades of fortunate realities which have not been
achieved . . . While the fiction is a subtle instrument of juridical
technique, it is also clearly the expression of a desire inherent in human
nature, the desire to efface unpleasant realities and evoke imaginary
good fortune."' 49
The fiction that "the king can do no wrong" is probably of the
same type. By creating in the mind a state of vacillation between
the moral and legalistic ideas of "wrong" it secures for the latter
a persuasive force legitimately coming to the former. It is a way
of apologizing for the fact that the king enjoys a legal status different from that of his subjects 50
OTHER MOTIVES FOR THE FICTION-FANCIFUL AND HABITUAL
FICTIONS
Has our discussion exhausted the motives for the fiction? So
far, we have assumed always that the motive is a serious one. But
is this always the case? Hobbes regarded one of the "speciall uses
of Speech" as "to please and delight ourselves, and others, by playing with our words, for pleasure or ornament, innocently."' 51 Can
it be that courts have occasionally resorted to fiction for the mere
amusement afforded thereby? Tourtoulon suggests that at times
the fiction may be "but a way the jurist has of amusing himself,"
but adds in a palliative vein that it is "something in itself to lighten
the juridical burden."'152 Austin found that some fictions could only
be explained as attributable to the "active and sportive fancies of
their grave and venerable authors."' 58 When Blackstone states
that the king cannot be non-suited for failing to appear in a case
149. Tourtoulon "Philosophy in the Development of Law" (1922) 386.
Tourtoulon seems, however, to carry thig notion to extremes when he suggests that the fictio legis Corneliae had its origin in the disinclination of the
Romans to admit the unpleasant fact that a Roman soldier could be captuired.
(Loc. cit.)
Malinowski, in "The Problem of Meaning in Primitive Languages" (a
supplement to Ogden and Richards "The Meaning of Meaning" [2d ed.]
296, 314) suggests that one function of language is simply to say something,
to overcome the disagreeable tension which accompanies silence. "The modern
English expression, 'Nice day to-day' or the Melanesian phrase, 'Whence
comest thou?' are needed to get over the strange and unpleasant tension
which men feel when facing each othei in silence." (Loc. cit.) Perhaps
the presumption that everyone knows the law is attributable to a desire to
say something in answer to the reproach that the law attributes consequences
to the acts of individuals which the individuals concerned could not have foreseen.
150.
i, *246.
151.
152.
153.
But the fiction had other uses; see Blackstone "Commentaries"
"Leviathan" ch. IV.
Tourtoulon "Philosophy in the Development of Law" (1922) 385.
2 "Lectures on Jurisprudence" (3d ed.) 631.
19
LEGAL FICTIONS
because he has the legal quality of ubiquity, and that, "His majesty
in the eye of the law is always present in all his courts," 154 we
seem to detect a vein of unrestrained fancy not compatible with
entire seriousness. And yet fictions attributableto a mere desire for
amusement are probably very uncommon. The rather serious business of interfering in the lives of others, and the necessity of justifying that interference at every step, is enough to restrain whatever
tendencies toward fantasy the average judge may have.
On the other hand, is it safe to assume that there is a motive
of some sort behind every fiction? Have not many of our fictions
become so common and so much a matter of habit that they are
frequently repeated by the courts without any particular motive
at all? For example, although originally the maxim, "Everyone is
presumed to know the law," was but a perverted form of the doctrine that ignorance of the law is immaterial, the fictional method
of stating the rule has become so habitual that we are not at all
surprised to find a court reversing the thing and stating, "It is
axiomatic
.
.
.
that 'every man is presumed to know the
law' and of this 'ignorance of the law does not excuse' is but a
sequence." 5 5
The Statute of 13 Elizabeth c. 5 made voidable certain "fraudulent conveyances," i. e., conveyances made with the intent to defeat
the claims of creditors. The English courts, however, went considerably beyond the statute and held certain conveyances voidable
at the option of creditors where there was in fact no fraudulent
intent. The desirability of bringing these cases within the wording
of the act, however, led the courts to speak of "constructive fraud."
or a "fraud in contemplation of law."' 5 This kind of talk became
in time so common that the habit grew up of treating voidability
wherever possible as founded on "fraud, actual or constructive."
Indeed, this linguistic habit became so strong that it was carried
over into legislation, and we find recording statutes providing that
an unrecorded deed should be "deemed fraudulent" as to subsequent
bona fide purchasers. 57 Even a scientific piece of legislation like
744.
154. "Commentaries" i,*270.
155. Wolverton, J., in Scott v. Ford (1904) 45 Or. 531, 536, 78 Pac. 742,
156. Bigelow "Fraudulent Conveyances" (1911) sec. 6, p. 73.
157. Thus the statute of 7 Anne c. 20 (1708) provided that an unrecorded deed should be "adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration." The more common language of the American recording statutes speaks merely in terms of
voidability and says nothing of "fraud." But cf. Gen. Code of Ohio, sec.
8543, and Ill. Rev. Stat. ch. 59, sec. 6.
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25 ILLINOIS LAW REVIEW
the Uniform Fraudulent Conveyances Act makes a conveyance
without consideration by one who is insolvent "fraudulent," "without regard to his actual intent."''l 5 It would probably be a mistake to suppose that this language is due either to a desire to make
the meaning of the statute clear (since suiely the word "voidable"
would be better in that respect than "fraudulent'), or to any impulse other than that of mere habit and imitation.
GENERAL AND SPECIAL FICTIoNs
Dean Pound has taken a useful distinction between general
and special fictions.
if we look narrowly at the fictions by means of which the
law has grown in the past, we may divide them into general fictionsfictions under which a general course of procedure or general doctrines
have grown up; and particular or special fictions-fictions which have
enabled a new rule to grow up in particular cases.' 59
An example of a general fiction is the notion of an appeal to
"higher law" which accompanied the reforms effected by courts of
Chancery in England and by the praetor in Rome; the notion that
equity came not to destroy the law but rather to fulfil it.1 60
The general fiction of Anglo-American jurisprudence that courts
do not "make" law, but only "discover" or "declare" it, has been
the cause of innumerable special fictions designed to conceal the
process of legislation which actually goes on in the courts. It is interesting to note that a similar general fiction on the Continent,
that courts do not "make" law, but only "interpret" a statutory
system, has had precisely the opposite effect, i. e., it has dispensed
with the necessity for special or particular fictions. The courts "do
not utilize the device of the fiction to fill in a gap in the statute.
When such a necessity is imposed on them they have recourse to a
means which serves them in every situation: the argument from the
text.
.
.
.
The judges stop at no subtlety which will give the
text the desired sense."'
61
158. Sec. 5. The drafters of the act speak of the "awkward method"
which had been developed by the courts for dealing with cases of this sort.
The courts had spoken of "presumptions of fraud," or of "fraud in contemplation of the law." Under. the act all of this becomes obsolete; the act
of the insolvent is "fraudulent without regard to his actual intent." The
drafters have apparently acted on the example of Humpty Dumpty; they pay
their words extra and make them mean what they want them to mean.
159. "Spurious Interpretation" (1907) 7 Col. Law Rev. 379, 383; "Interpretations of Legal History" (1923) 131-136.
160. Maitland "Lectures on Equity" (1909) 18.
161. Lecocq "De la fiction comme proc~d6 juridique" (1914) 251.
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LEGAL FICTIONS
The tendency of the legal mind to treat legal results wherever
possible as dependent upon "the intent of the parties" may perhaps
This unexpressed intention
.
be called a general fiction. ".
which is not, for the greater part, present to the mind of the party
himself at the moment of concluding the contract" 1 2 plays an important r6le in modern law. What is the explanation for this persistent tendency to attribute legal dispositions to a non-existent
intent? What considerations are really actuating courts when they
purport to investigate the "intent of the parties" and perhaps believe
that they are doing no more? These questions have not received
the attention in legal studies that they deserve.
PROCEDURAL FICTIONS
The ordinary procedural pretense serves to facilitate an alteration in "substantive law." By permitting an allegation of "invitation" in the "attractive nuisance" cases the courts accomplished
a change in the substantive rules concerning the liability of a landowner. But procedure does not lack its own fictions, serving, as
it were, exclusively procedural ends. "Constructive service" is an
example of such a fiction. And perhaps it may be said that procedure has been dominated by one "general" fiction; the notioninherited from primitive law-that a trial is the submission of a
controversy by the consent of the parties. While this notion is
not openly avowed today and is patently inconsistent with modern
practice, it is possible to argue that it still influences procedural
162. Sohm "Institutes of Roman Law" (Ledlie's transl.) sec. 15, quoted
from Pound "Law as Developed in Juristic Thought" (1917) 30 Harv. Law
Rev. 201, 211, note 34.
How unreal the inquiry into "intent" may at times become is admirably
illustrated in the following passage from Wurzel: "A young girl in the
lower walks of life becomes engaged to a clerk In order to enable him to
establish a home she turns over to him her savings, and together they establish themselves in some business. They have no success in this, and as a
result the engagement is broken off. Now the girl sues her former fianc6
foi a return of the money and the answer is that it was lost in the partnership business.
"Now the judge will have to find whether the turning over of the money
was intended as a loan; or whether it was meant to be the advancement of a
marriage portion; or whether the business was to belong to the plaintiff with
the defendant as partner; or whether the money was invested as at limited
Lartnership fund, or whatever other possibilities may exist. The judge has
to answer all these questions, although perjhaps, nay in all probability, the
intention of the parties at the time when the money w.as turned over was
in no wise definitely fixed. What was in their minds was nothing more than
that they loved each other, had perfect mutual confidence, were going to
get married, and that it made no difference whatever in whose pocket the
money was kept. In short, the thinking and willing of the two young people
("Juridical
did not proceed according to the forms of the Roman Law."
Thinking" in "The Science of Legal Method" [1917] p. 399.)
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25 ILLINOIS LAW REVIEW
modes of speech, and in a kind of residuary and attenuated form
lives on out of the past.6 5
STATUTORY FICTIONS
In the debates preceding the adoption of the French Civil Code
the question was raised whether it was legitimate to employ fictions
in legislation. Toullier protested, "The fiction is unworthy of the
majesty of the legislator; he has no need to pretend, he commands."
To which Marcad6 responded, "It is precisely because the legislator
is all-powerful that he may create as many fictions as he wishes."16' 4
In accordance with the notion that the legislator "commands" or is
"all-powerful" it is often assumed that if fictions are found in legislation they are to be construed as expository devices-mere conveniences of expression. Soml6 likens the position of the legislator to a gentleman giving instructions to his servant. "If I have
given my servant permission to take Sundays off I can later annex
an exception expressly and openly, or I can clothe it in the form
that this or that work day shall be regarded as a Sunday, or that
this or that Sunday shall be deemed a work day." '
This illustration he regards as revealing the true character of legislative fictions. 166
163. A discussion of the influence on modern German procedure of the
notion involved in the Roman litis contestatio (as a pretended contract of
submission) will be found in Biilow "Civilprozessualische Fiktionen und
Wahrheiten" (1879) 62 Archiv ffirdie civilistische Praxis 1, espc. under
the heading "Die Fiktion der Litiscontestation und der Einlassung" at p. 11.
In early law, due to the influence of the idea mentioned above, the default
judgment was unknown. "One thing our law would not do; the obvious
thing. It would exhaust its terrors in the endeavor to make the defendant
appear, but it would not give judgment against him until he had appeared,
and, if he was obstinate enough to endure imprisonment or outlawry, he
could deprive the plaintiff of his remedy." (2 Pollock and Maitland "The
History of English Law" [2d ed.] 594.) We do the "obvious thing" now;
we do not hesitate to enter a default judgment against the non-appearing
defendant. But the old notion of "consent" lives ortin our conceptions of
"process." In 1923 a statute was passed in Massachusetts which provided
that the operation of a motor vehicle by a non-resident within the state
should "be deemed equivalent to an appointment . . . of the registrar"
of the state as agent to receive service of process. See Scott "Jurisdiction
over Non-resident Motorists" (1926) 39 Harv. Law Rev. 563.
An analytical discussion of the fictions of modern German procedural
law will be found in Baumhoer "Die Fiktion im Straf- und Prozessrecht"
(1930) Beiheft Nr. 24 to the Archiv fuir Rechts- und Wirtschaftsphilosophie.
Most of the( "fictions" discussed in this pamphlet are' fictions, ii the
Vaihingerian sense only; they are what most people would call "abstractions" or "concepts."
164. Lecocq "De la fiction comme procid6 juridique" (1914) 246.
165. "Juristische Grundlehre" (2d ed. 1927) 526.
166. And indeed, in his philosophy, of all legal fictions, since he defines
law as the command (or promise) of a sovereign. Op. cit., 105.
23
LEGAL FICTIONS
How realistic a picture does this give of the position of the
legislator? One of the oldest and most audacious of the fictions of
the Roman law was statutory, the fictio legis Corneliae. Was. this
fiction a mere convenience of expression ?267 The true explanation
would seem to be that given by Demogue. "The legislator himself
did not dare to touch the edifice of the ancient law."168 This "allpowerful" right of the legislator to "command" is usually more
apparent to others than to himself, and is often the figment of the
historian of a later epoch who ignores the realities of the political
life out of which the legislation arose.
In 1922 a statute regulating the leasing of dwellings was passed
in Germany. This act provided that the decisions of the tribunal
constituted to administer it should be deemed to form a part of
every contract of leasing entered into after the passage of the statute. This provision avoided doing open violence to the fiction, so
strenuously adhered to on the Continent, that courts do not make
law.16 9 English legal history is strewn with statutory reforms taking
cumbersome and artificial forms to conceal the fact that an alteration
of the law is taking place. An early English statute designed to
correct the inconveniences of the principle-so common in undeveloped systems of law-that no judgment may be had against a
defendant who does not appear in court, provided that where the
defendant failed to appear after service of process the plaintiff might
appear for him !170oThe Veteran's Bill, vetoed last June by President
167. See the remarks supra under the heading "The Motive of Con-
veniettwe."
168. "Les notions fondamentales du droit priv&" (1911) 239. As has
been pointed out previously, there is some doubt whether the fiction was
really a part of the statute. See Buckland "A Text-Book of Roman Law"
(1921) 288. And cf. Tourtoulon's rather fanciful explanation of this fiction,
supra note 149.
169. Hofacker "Fiktionen im Recht" (1925) 4 Annalen der Philosophie
475. The statute referred to is the Reichsmietengesetz vom 24 M/irz 1922,
sec. 15. Hofacker calls this "eine ganz wfiste Fiktion."
170. Se4 the statutes 5 George II c. 27, and 12 George I
connection mention should be made of the English statutes
powers of courts of equity. II George IV & I Will. IV.
George IV and I Will. IV c. 60. These statutes provided
c. 29. In this
enlarging the
c. 36, and II
that where a
defendant had been ordered to execute a conveyance and had refused, or
was unable to make the conveyance, the court might appoint a master to
make the conveyance for the defendant. The simpler thing would have been
to provide that the court might decree title to be in the plaintiff, without any
act by or for the defendant. But the statute preserved in form the notion
that a court of equity has no power to make a declaration of right, but acts
only "in personam," i. e. by coercing the party into exercising his own
legal powers. That this notion is not confined to Anglo-American law is
indicated in the following quotation from a treatise on German procedure:
"Where there is a decree ordering the exercise of a power (for example
directing the making of a conveyance, or the giving or cancellation of a
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25 ILLINOIS LAW REVIEW
Hoover, provided that in the case of veterans of the World War
afflicted with certain diseases between 1925 and 1930 a conclusive
presumption should be raised that these diseases originated in serviceY.171 These illustrations, taken from different epochs and from
widely separated regions, ought to dispel the notion that statutory
fictions are always merely expository.*
mortgage), no execution or performance [of the decree] takes place, but
through the legal force of the decree the fiction that the power has been
exercised [by the defendant) is assumed." Seoffert "Zivilprozessrecht"
(1906), in "Die Kultur der Gegenwart" 118 "Systematische Rechtswissenschaft," 162, 188.
171. In his message to Congress President Hoover stated that the presumption involved in the bill "constitutes a wholly false and fictitious basis
for legislation," and added, "The spectacle of the gQvernment practicing
subterfuge in order to say that what did not happen in the war did happen
in the war impairs the integrity of government, reduces the respect for government and undermines the morale of all the people." The New York
Times, June 27, 1930.
*To be concluded in a later issue of this Review.
25