Legal fiction

“ And on the subject of fiction, and legal absurdity, it is certainly too late at this day for our Courts of Justice to be very fastidious, on a consideration which has been so thoroughly set at nought, by the action of ejectment, fine and recovery, and sundry other, matters of the kind ”

“ This conflict between belief or theory and notorious fact is at first sight extremely perplexing; but what it really illustrates is the efficiency with which Legal Fictions do their work in the infancy of society. The earliest and most extensively employed of legal fictions was that which permitted family relations to be created artificially, and there is none to which I conceive mankind to be more deeply indebted. ”

“ A great part is played in English law by what are called legal fictions. Lawyers have been able in many most important cases to alter the law by ingenious devices for applying to one case rules primarily and ostensibly intended for others. ”

“ Not only does this outgrown conception violate the fundamental laws of matter; it often borders upon a breach of honor, integrity and good faith. Legal fictions are fast giving place to the law of common sense. ”

“ But the notice is itself a mere fiction.p The United States had no persona standi in that Court; and if they had, it would have been impossible to assert it, as the libel, condemnation, sale, and arrival of the prize in this country, were nearly cotemporaneous. It is the nature of fictions to work justice, not palpable injustice: this Court, therefore, will not suffer itself to be ousted of its rights by a forced application of such a fiction. ”

“ While the statutes have for most practical purposes reduced the personal liability of the collector to a fiction, the course of the legislation indicates clearly enough that it is a fiction intended to be acted upon to the extent that the right to maintain the suit and its incidents, until judgment rendered, are to be left undisturbed. ”

“ This concept, however, is a fiction of the law "'and it is now well settled, as a general principle, that the fiction should be disregarded when it is urged with an intent not within its reason and purpose, and in such a way that its retention would produce injustices or inequitable consequences.'" Laya v. ”

“ It is remarkable that a book which has done more for law reform than any other before or since should have been written by a man who was not a lawyer by profession, who was totally unversed in legal practice, and who was only twenty-six when he attacked a system of law which had on its side all authority, living and dead. ”

“ And when words or terms of art are used in the description, that have a technical meaning at common law, these should be followed, being the only terms to express in apt and legal language the nature and character of the crime. ”

“ The spectacle of the legal procedure showed how a literate practice ended up convoluting justice. In fact, literate law is not meant to serve justice. Its purpose is to use the law to acquit a client. ”

“ Courts often reduce this inquiry to the question of whether the work is factual or fictional, as “ [t] he law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy.” ”

“ There are many reasons why this should be the case; the courts of law are free, and a sight that can be seen for nothing is of itself attractive, since we are, at all events, not losing our time and money too. Again, the most popular drama, the most popular novel, are those to which the dénouements can not easily be guessed; and in the court-house we see drama and novel realized with the verdict of the jury and the sentence of the judge—a matter of anxious speculation to the very last. ”

“ Lungy Addison committed grand larceny in getting away with the Mortal Cinch mine is one that, falling from the mouth, as it does, of a person not learned in the law and its beauties, must be true. Nobody but a lawyer could have invented it—and I assure you that lawyers are too busy with the strange phases of truth to monkey—if I may use a term not yet laundered by the philologists—with fiction. The law is the perfection of human wisdom. Our courts are the God-ordained instruments by which these perfections are made manifest to the eyes of mere human beings. ”

“ Would not that indefinite expression, the liberty of the press, extend to the justification of every possible publication? Yes, gentlemen, you know, that under such a general license, a man who should publish a treatise to prove his Maker a knave, must be screened from legal punishment. ”

“ These theories are without doubt unsustainable, not excluding the last, which has the appearance of being moderate; because the so-called judicial fiction is intrinsic to the law and exists even when we think that it is not present, for it is always a fiction to place a concrete case in an abstract category. ”

“ It is the duty and delight of lawyers to find out everything—and such is the depravity of the legal heart, it is especially their duty and delight to ferret out what the opposite party desires to conceal. It is not what a man wishes and means to say, but everything which he can be made to say, that a lawyer wants. His hand can put aside the proffered “books,” and grab the books which are withheld.265 He does not permit the opposite parties to select and exclude witnesses, but goes out into the highways and hedges and compels to come in whom he wants. ”

“ Nor is this legal strain to be traced only in his personal aspect and bearing; it asserts itself as unmistakably and often with considerable effectiveness throughout his novels and plays. He has the lawyer’s respect for fact and detail; he must have the truth, the whole truth and nothing but the truth; and this gives his stories a certain aridity; a hardness as well as clearness of outline. The ways of the impressionist are not his ways; he omits nothing, but is as precise, as exact in developing plot and character as a lawyer is in getting up a case. ”

“ The reluctance of courts to expand the coverage of criminal statutes is particularly important where, as here, the statute results in censorship. According to dictionary definitions, 'matter' undeniably includes phonograph records and the substances of which they are made. Indeed, dictionaries tell us that 'matter' encompasses all tangibles and many intangibles, including material treated or to be treated in a book, speech, legal action or the like ”

“ The statute is as follows: 'Every person who shall wilfully print, publish, edit, issue, or knowingly circulate, sell, distribute or display any book, paper, document, or written or printed matter, in any form, advocating, encouraging or inciting, or having a tendency to encourage or incite the commission of any crime, breach of the peace, or act of violence, or which shall tend to encourage or advocate disrespect for law or for any court or courts of justice, shall be guilty of a gross misdemeanor;' Rem. ”

“ We are asked here, however, to transplant this ancient salt-water admiralty fiction into the dry-land context of forum non conveniens, where its usefulness and possibilities for good are questionable at best. In fact, the fiction appears to have no relevance whatever in a District Court's determination of where a case can most conveniently be tried. A fiction born to provide convenient forums should not be transferred into a weapon to defeat that very purpose. ”

“ As manifested in the plays, this legal knowledge and learning had therefore a special character which places it on a wholly different footing from the rest of the multifarious knowledge which is exhibited in page after page of the plays. At every turn and point at which the author required a metaphor, simile, or illustration, his mind ever turned first to the law. He seems almost to have thought in legal phrases, the commonest of legal expressions were ever at the end of his pen in description or illustration. ”

“ If such a principle be incorporated into the body of the law through the instrumentality of a court of equity, the attempts to logically apply the principle will necessarily result, not only in a vast amount of litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of the publication of a likeness, but must necessarily embrace as well the publication of a word-picture, a comment upon one’s looks, conduct, domestic relations, or habits. ”

“ And certain penalties are affixed to a violation of the right, with a proviso, that the act shall not be construed to extend in favour, or for the benefit of any author, or subject of any other of the United States, until the state of which such author is a subject, shall have passed similar laws for securing to authors the exclusive right and benefit of publishing their literary productions. ”

“ If the defendant altered or changed the true facts so that the article as published was a fictionalized version, this, in my judgment, was a knowing or reckless falsity. 'Alteration' or 'change' denotes a positive act-not a negligent or inadvertent happening. 'Fictionalization' and 'fiction' to the ordinary mind mean so departing from fact and reality as to be deliberately divorced from the fact-not merely in detail but in general and pervasive impact. ”

“ The section provides:
'It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. ”

“ Fictions which appear in the form of principles are not so easily dealt with by legislation. To expel them formally from the system would require the re-enactment of vast portions of law. A change in legal modes of speech and thought would be more effective. The legal mind instinctively seizes upon concrete aids to abstract reasoning. Many hard and revolting fictions must have begun their career as metaphors. ”

“ The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterly without redeeming social value. ”

“ We demand the legal prosecution of all tendencies in art or literature of a kind likely to disintegrate our life as a nation and the suppression of institutions which might militate against the above requirements. ”

“ In dealing with writings alleged to be obscene, the court and jury have to consider the effect of the whole work and not merely the particular extract challenged as improper; and in practice it is difficult to induce juries to convict the publishers of well-known and old-established works of real literary quality on the ground that they contain passages offensive to modern notions of propriety. ”

“ Law was to him a dead and dried collection of classified statutes, printed in old books, in a formal jargon as repellent as the scientific names on a museum of beetles. Life as a lawyer would be life in a musty library with a continual droning of court arguments coming to him through green baise doors, and all the sunlight and freedom of love and happiness beating on the closed windows that shut him in. ”

“ In the law-courts one finds an art-form, as surely as in the theatre. What is drama? Its theme is the actions of certain opposed persons, historical or imagined, within a certain period of time; and these actions, these characters, must be shown to us in a succinct manner, must be so arranged that we know just what in them is essential to our understanding of them. Very similar is the art-form practised in the law-courts. The theme of a law-suit is the actions of certain actual opposed persons within a certain period of time ”

“ The right of an author, irrespective of statute, to his own productions and to a control of their publication, seems to have been recognized by the common law, but to have been so ill defined that from an early period legislation was adopted to regulate and limit such right. ”

“ If, in ordinary life, words represent impressions and ideas, in legal instruments they are things; they dispose of property, liberty, and life; they express the will of the lawgiver, and become the masters of our social being. Yet so carelessly are they used by lawyers and legislators, that half the money spent in litigation goes to determine the meanings of words and phrases. ”

“ Legal humor is an ancient institution; it is the agency which humanizes the bloodless operations of the legal machine. Even the Olympian gods indulged their levities, and did not narrow themselves to councils of lightnings and thunderbolts. ”

“ That every publication, either by writing, printing, or pictures, which charges upon or imputes to any person that which renders him liable to punishment, or which is calculated to make him infamous, or odious, or ridiculous, is prima facie a libel, and implies malice in the author and publisher towards the person concerning whom such publication is made. ”

“ To the critical student of the philosophy and history of poetic invention it is not uninstructive to observe how completely the novelist has appropriated and brought within the compass of one fiction, in defiance of all those lower probabilities which the lawyer who pleaded before a jury court would be compelled to respect, almost every interesting scene and object in both the Shetland and Orkney islands. ”