The most interesting thing about legal fictions is the way in which ethics, and utility help shape a reality by agreement imposed on an entire community of believers. Lon Fuller expressed the truth of this situation in an often quoted explanation of legal fictions as "either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility." Lon L. Fuller, Legal Fictions 9 (Stanford 1967). For the most part, legal fictions have been an extraordinarily useful device for modifying the Common Law in light of changing customs. Wikipedia provides a fairly typical definition of legal fiction as understood in the Western common law tradition. It is worth quoting:
"In the common law tradition, legal fictions are suppositions of fact taken to be true by the courts of law, but which are not necessarily true. They typically are done to evade archaic rules of procedure or to extend the jurisdiction of the courts in ways that were considered useful, but not strictly authorized by the old rule. Another way of understanding a legal fiction is to say that it is a technique somebody uses in order to benefit from a legal rule which wasn't necessarily designed to be used in that way. For example, the UK Parliament's rules state that a person cannot resign from office, but they also state that a Member of Parliament cannot be in a paid office of the crown. The second rule is used to circumvent the first."
Legal fictions remain as important today as they have ever been in molding the domestic law of any legal system. In the United States, for example, it has been useful in molding rules to fit new situations. This is particularly important, for example, in the field of cyberlaw (Daniel Benoliel, ¨Law, Geography and Cyberspace: The Case of On-Line Territorial Privacy, Cardozo Law Review 23:125 (2005)). Legal fictions may be equally important where rules must be recrafted to produce a particular result that furthers the desires, habits, understandings or desires of a legal community. This was the case, for example, from earliest times in the area of products liability law (Frank J. Vandall, ¨Constructing Products Liability: Reforms in Theory and Procedure, Villanova Law Review 48:843, 845-48 (2003)).
The techniques of legal fiction are, of course, older than the Common law. Roman law is replete with legal fictions, as are the normative frameworks within which each of the so-called Abrahamic religions—Judaism, Christianity and Islam—have functioned for millennia. Henry Maine famously explained, the elaboration of legal fictions under the legal traditions of Roman law. "The fact is in both cases that the law has been wholly changed; the fiction is that it remains what it always was" (Henry Maine, “Ancient Law,” in The Problem of Jurisprudence 370 (L. Fuller ed., 1946) (1861).
Legal fictions have also been fundamental to international law, especially the law with respect to the recognition of states, the source of authority within states. An interesting discussion in that regard was recently published in the University of Chicago Law Review (Rosa Ehrenreich Brooks, Failed States or the State as Failure,¨ University of Chicago Law Review 72:1159 (2005)). And, indeed, the several decades old internationalization of the law of human and humanitarian rights, has, in its essential transnational character, made it increasingly necessary to substitute transnational for national fictions.
In each of these cases, the tension between formalism and functionalism, between the unalterable rule as written or previously expressed in case law, and the reality of the desires of the community in which a rule is to be applied, has produced a rich set of techniques of manipulation that are at once both subversive and necessary for the preservation of the forms of a system, though its spirit may be much altered in the process. Of course, at its limit, the system, though formally unchanged, may well become unrecognizable, and eventually, something completely different. The transition of Roman Law from its Republican and Common Law like roots, to the imperial model preserved by the Imperial machinery of Justinian in the 6th century, provides a vivid case in point. The great transition in the Common Law from the 17th century when Coke could suggest to James I that Kingly (or Parliamentary) supremacy was inimical to the “higher law” of the Common Law to the current period when Parliamentary supremacy is thought of as an ageless concept and the Common Law mere judicial musing subject to a legislative imperium is a case in point. Americans, in particular, forget that underlying much of the anger against England in the 18th century had as its source the perception among the colonists of a usurpation of power by Parliament. The American Revolution was, in part, a response to innovations in English constitutional law from out of which Parliament’s supremacy was institutionalized in the English system; it was a rebellion against the newfangled concept of Parliamentary Supremacy in derogation of the Higher Law of “rights of all English subjects” represented in the Common Law and a number f critical charters given from the time of Magna Carta (Edward S. Corwin, The “Higher Law” Background of American Constitutional Law, Ithaca, NY: Cornell University Press, 1955). Indeed, the concept of the state itself owes much to the deployment of legal fictions in its construction between 1648 and 1945.
I was thinking especially about the important role played by the creation and embrace of fiction when communities seek to impose a particular result without appearing to deviate much from the form of its rule structures when stories started appearing about the very clever ways in which pictures were fictionalized and deployed quite successfully in the context of the recent global orchestration of a end to the hostilities in the Israel-Hezbollah War (I use that description because I am not sure whether Lebanon is not itself a fiction, a necessary one no doubt, to cover the reality of a state better known as Hezbollah in the territory attributed to Lebanon). Though I have written about the way in which the international community, particularly in the West, has now developed a great normative structure for the management of conflict (Larry Catá Backer, “The Devil’s Advocate: The West, the Invincible Guerilla, the Value of Violence and the Rise of a Management Model of War”, Law at the End of the Day, Aug. 7, 2006), I had not thought about the way that photo fictions were critical in creating the framework within which the rules of international law could be deployed to produce a particular result that furthered the desires, habits, understandings or desires of the international community, in the form of the U.N. ceasefire resolution and the to be produced resolution of the underlying political issues leading to war.
Upon the adoption of the U.N. ceasefire resolution, reports began to circulate that the media, including but not limited to the Western media (and among them the New York Times and other print media) had published sets of pictures depicting the horrors of the Israeli military campaign in the Hezbollah territories that had been partially or entirely works of fiction, or were otherwise embellished. The falsifications in the photographs could be divided into three broad categories. The first category can be described as posing fabrications. In these photographs the same extremely visually appealing grandmother figure wails in front of what is described as her home. The second category can be described as art shot fabrications. These include the placing of a brand new adorable cuddly plushy toy, for example a Minnie Mouse stuffed animal, amid the rubble of a bombed building. The suggestion, of course, is not only to the horror of war, but to the wanton destruction of the precious homes of the most innocent of civilians—the children. The third category consist of insertion fabrications. These include placing people in scenes that suggest suffering and appalling effects of bombing and fighting. Sometimes these appear posed, and sometimes they might be inserted after the picture is taken. The last category includes visual enhancements. These include photographs of great destruction or of bombing and other acts of violence, significantly enhanced to suggest a greater level of destruction.
The doctored photographs were prominently displayed in the global media, and instrumental in forming the public opinion necessary to create the cover of public approval required to support the U.N.’s actions. The perhaps unconscious cynicism is nicely evidenced in an analysis of the effects of photographic depictions in turning public opinion in so-called secular Muslim majority states like Azerbaijan. Fariz Ismailzade reports for the Eurasia Daily Monitor, an organ of the Jamestown Foundation of the difficulties faced by Azerbaijan, a nation with traditionally strong ties to Israel, or resisting pressure to join the ranks of other Muslim majority states in adopting a unified Muslim stance in the Israel Hezbollah War. In that context, photographic depictions, and the realities they privilege, play a paramount role:
“Instead of loud diplomatic statements and openly taking sides, Azerbaijan has so far preferred to send humanitarian assistance to the suffering people of Lebanon. With images of victims, especially children, broadcast on television daily, the people of Azerbaijan are not likely to remain indifferent. Yet the more pragmatic analysts in Azerbaijan believe that Israel is more important to secular Azerbaijan than is Lebanon.” Fariz Ismailzade, Azerbaijanis Take Sides in the Israeli-Lebanese War, Eurasia Daily Monitor (August 14, 2006).
The photographs thus are deployed to evoke a world of expectation. Where cultures, or states, are in conflict, the battle for space for the pictorial depiction of the realities of It served up a reality we were craving. It framed the emotive borders of a legal justification. The pictures suggested what we knew must have been happening. It suggested a literature of war, the gesture of violence. It gave visual expression to poetry of horror. The eye focuses on what it wants to see. A consciousness of a discrete larger reality seeks to connect discrete images. Images of the effects of bombing on children—violence causing sudden injury or death produces a mass rage that is usefully deployed by elites in political communities. That it feeds on hypocrisy is of no moment. The same masses moved to rage by images of bombings injuring or killing old women and children are the same masses who accept from their own regimes a routinized state of grinding exploitation, and exploitation leading to lifelong suffering, exploitation, disease, violence and death, to the same set of individuals. Yet that is the very nature of images, to privilege an image, and by that privileging, to obscure the rest.
In this context, reality loses its objective character. As evocations of larger realities, their staging appeals less reprehensible to those who believe in service to a variety of sets of higher realities. The photos might have been faked, but they expressed a sense of the reality of the events fictionalized in each discrete photograph. And, in any case, what has objectivity to do with the deployment of images. Every image, staged or unstaged, itself represents a choice, a privileging, of a particular view to evoke a particular reaction, memory or connection, on the part of the viewer. Evocation is always artifice. The selection of image for broadcast is inherently political. Faked photographs merely conflate the political choice of selection with the privileging of a particular set of evocations. And a choice was made by elite media in the course of the Israel Hezbollah War to privilege the image evocation agenda of one of the combatants over the other. The faked photographs served that purpose well. And perhaps for those reasons, the world shrugged when the fictionalization was revealed. Even if the specific images were enhanced, or posed, or framed, each reflected a reality within the larger context of the conflict as understood by those for whose erudition the pictures were taken. And that reality was critical as a foundation for the construction of the legal reality of the UN resolutions meant to halt the violent phase of the conflict between Israel and Hezbollah.
Ironically, the UN Security Council cease fire resolution, like the pictures, represent a necessary fictionalization of sorts. The UN Resolution evokes a picture of peace, of the cessation of violence and the embrace of dialogue. It is framed by the fiction of a state--Lebanon--a singular political community in control of a well defined territory. It is directed to a state--Israel--that remains a fiction among many members of the community of nations. It seeks action by a community able to project power within a well defined territory--Hezbollah--whose reality is also felt but about which nothing could be said. The photo fictions were mimicked in the juxtaposition, the wonderfully perverse dialogue, between the representatives of Israel and Lebanon before the UN Security Council in the days before the UN Resolution was adopted. Rhetorical fictions, evocations of irreconcilable realities, augmented by the realities of photography, provided the world community with the fictionalized space within which it could reach the "right" result, fully justified.
Perhaps a student writer got it right in a note that argued for the utility of fictions in law, mathematics, poetry, and literature (Note, “Lessons From Abroad: Mathematical, Poetic, And Literary Fictions In The Law,” Harvard Law Review 115:2228 (2002))
“The debate over the legal fiction has been sporadic and contentious and never entirely hospitable to the idea of fiction in the law. Nevertheless, the law's use of fiction has expanded in both scope and form. What began as the simple pleading of false facts for procedural purposes developed into fictions rooted in substantive legal doctrines. Fictions have more recently been identified in the narratives told throughout the legal process and today are regularly employed by lawyers, judges, and legislatures in their arguments, opinions, and statutes. Legal fictions have become so commonplace that they are often overlooked; however, a closer inspection is in order so that the legal fiction in its varied forms can be appreciated or heeded as appropriate.” Note, supra at 2228.
The Note author reminds us of the great distinction made between fiction and lies, suggesting its utility in using consciously false ideas to reach a correct conclusion. Note, supra, at 2244. It may well be wise for us to remember the way in which Lon Fuller distinguished “a fiction from a lie in that a fiction is not meant to deceive and from an erroneous conclusion in that a fiction is consciously false. [Lon L. Fuller, Legal Fictions 6-10 (1967)];” and that Jerome Frank also distinguished between legal lies, myths, and fictions. Jerome Frank, Law and the Modern Mind 340-41 (Anchor Books 1963) (1930). Note, supra, at 2229 and note 7.
The case of the faked photographs reminds us that legal fictions may require false images to sustain privileged ideas and communal desires. It suggests that false reality can be constructed to support the deployment of legal rules to obtain a desired result made easier by a collective deployment of fake images of reality embraced as true. It seems that a global community with a sufficient will to have its preferred outcomes memorialized as law, is willing to indulge in those photographic fictions that can serve it in creating the legal fictions necessary for conflict management. The case of the doctored photographs provides an excellent example of the modern modus operandi of this new communal world order. It suggests that fictions have moved beyond techniques of logic to respect the form of law while reorienting its application. A global community willing to suspend reinvent belief in order to support a pre conceived result, is one that requires very careful monitoring and against which the old tools of fairness and justice, of right, may now have to be redeployed in more effective form. But it is also a global community working true to form. Faithfulness to form is never a guarantee that substance will follow. And fictions can sometimes reveal the shape of strongly held truths. In the great and very old style Common Law tradition, right follows common belief, and fictions are sometimes necessary to reveal the truth of the commonality of a belief in the courts of the community of nations.