Halakhic and Legal Fictions – Classification and Justification

The Rabbi’s Opening Post

Halakhic and Legal Fictions – Classification and Justification

Posted on 23/10/2006

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Halakhic and legal fictions – classification and justification

The subject of legal fictions is very interesting, both in the halakhic context and in the legal context. There are several types of halakhic fictions. For example: 1. lavud, gud asik, an eruv, and the like, where it is as though there is a partition when in reality there is none. 2. The doctrine that present-day judges act as the agents of earlier authorities. It is as though an appointment of agency had been made, but in practice it is quite clear that it was not, and also could not have been (because such agency is not valid under ordinary halakhah, from several different aspects, and this is not the place to elaborate). 3. ho’il and mitokh, when it is clear that no guests will come. 4. migo, not in the sense of the law of evidence, but rather migo in the sense that since something serves as a wall for Sabbath purposes it serves as a wall for a sukkah as well, and others like it. Is this a fiction? 5. Various legal stratagems (the sale of leaven; the sale dispensation). Are these fictions? 6. Already sworn and standing from Mount Sinai. An oath that supposedly took place at Mount Sinai, as the basis for obligation in the commandments. 7. Presumptions of implicit agreement. Or matters that are in his heart and in the heart of every person.

In each of these one must discuss whether it is a fiction, and of what type. But there is a sense that these are laws whose halakhic foundation is rather shaky, and that in effect we are turning the desirable into the actual. What ought to have been is treated as though it actually was. Therefore, the main problem I see in the concept of fiction is precisely what the halakhic justification for it is. After all, the desirable was not actual. There was no appointment of agency for the judges of our time. There is no likelihood that guests will come on a festival. There was no oath at Mount Sinai. And so forth. How does one turn the desirable into the actual? If so, can one not shape the whole Torah as we wish? Some of the things listed may perhaps have a source, such as the rules of lavud and the like, which some say are laws transmitted to Moses at Sinai. But my sense is that this is said as an ad hoc solution to the problematic nature of fiction, and not on the basis of evidence that something like this was actually given at Sinai.

So much for fiction in halakhah. Fictions also exist in other legal systems. I do not know whether they exist in all of them. For example, Rousseau’s social contract is a legal-philosophical fiction. A few years ago I was surprised to discover that jurists use this fiction to justify judgments or legal claims. They do not use it merely as a metaphor for commitment to social values, but use it as though such a contract had really existed historically, and discuss matters on the basis of the binding force of agreements (and this has various practical consequences).

Another example was brought here some time ago by Muadib (I kept it אצלי, but I do not remember the thread in which it was brought). This is his wording:

According to ancient Roman law, a will was defined as the expression of the last will of a Roman citizen. If it was found that at the time he expressed his last will the testator was not a Roman citizen, then he could not make a valid will according to law. Under ancient Roman law, a citizen who fell into captivity was not recognized as a citizen for as long as he remained in captivity.

It followed from this that any will of a Roman citizen who died in captivity was not valid. The needs of life demanded that the situation be changed. Public opinion could not tolerate a situation in which an honorable Roman citizen went out to war on Rome’s mission, fell into captivity, and died in captivity – and his descendants, his heirs, would be disinherited from his estate because his will was not the will of a Roman citizen as required by law.

To correct this situation, the Roman legislator enacted a law known as Corneliae Lex, and established a legal fiction – Fictio Legis Corneliae. According to this legal fiction, the captive is considered as though he died at the moment he was captured, and from this it follows that he was a Roman citizen at the time of his death, his will is valid, and so forth.

My sense is that halakhah does not relate to fictions in a natural way. The commentators tend to find interpretations that justify the fiction (a law transmitted to Moses at Sinai, or some interpretive justification), and I do not think that any of them would openly admit that there is a fiction here. Usually they hide this behind ad hoc explanations. In the legal world this is openly acknowledged, and there it is legitimate to create additional fictions. It seems to me that in ordinary legal systems that are not based on data from Sinai, that is, on ‘legal facts,’ fictions are treated more casually. In halakhah there is supposed to be a substantive explanation for every halakhic detail, and even if something is desirable they do not so quickly turn it into something actual. This last point is very important, but it opens an entirely new branch of the discussion, concerning the similarities and differences between halakhah as a legal system and other legal systems, and to that, God willing, we will devote another thread.

My questions for the audience: 1. Are there more fictions to add to the list?

2. Is the definition of the term fiction really the turning of the desirable into the actual? Does this cover all the cases?

3. What are the different types of fictions? What is common to them, and what is different?

4. What is the justification for these fictions? If my definition is correct, one may ask it this way: what is the justification for turning the desirable into the actual?

5. Why not turn every desirable thing into something actual? In other words: what is the criterion that defines such a transformation as legitimate or illegitimate?

6. Is there a difference between halakhah’s treatment and the treatment of other legal systems regarding fictions, in all the respects above (and in connection with my remark above, just before the questions)?

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Source (the ‘Stop Here, We Think’ forum): http://www.bhol.co.il/forums/topic.asp?topic_id=2066979&forum_id=1364