LEGAL FICTIONS by Judge H. Cohen

A legal fiction is a sort of white lie,  meant not to cheat or mislead but rather to help and assist. It is a type of technique that assumes the existence of  imaginary facts or situations , the aim being to obtain a desired legal  outcome. Fictions have been likened to crutches upon which legislators and judges may lean as they proceed to justice ; better, they say,  to rely on artificial crutches than to slip, falter or  fail.   When a legislator utilises fiction, it is normative or dogmatic: endorsing what is in  fact a lie, he turns it into  truth.
One of the main differences between such fictions and myths, superstitions and assorted visions, is that legislators know that the fiction they use is a lie, even if portrayed as truth; whereas believers in myths believe in their truth, or fear that they may be true.
Sometimes a legislator will explicit reveal the normative fiction, as when something is seen as something else(for example, an adopted child may be seen as the natural child of the adopter).Or the fiction, as such, may not be explicit but hidden in legal language- and it is to this type we turn. When we say that in Israel laws are made by the Knesset, implicit is a normative fiction,  in  that a Knesset majority is deemed to be the entire House. The legal directive that one follows the majority does not reveal the fiction, nor is this necessary, when the normative directive of the legislator is plainly clear. There are then those who aver that a normative fiction loses its identity and character as a fiction upon its coming into law, becoming merely a legislated fiction- but even they agree that the idea of fiction in the abstract remains the original substructure of the legislated norm.

The "democratic" fiction empowering a majority as a totality answers a vital legal need arising from the fact that people do not generally all agree about everything. Better to lie- and enable reasonable and orderly procedures of decision-making and legislation.
I mention the fiction of the majority in connection with democratic legislation - but it has existed, as we know, for many other needs ever since ancient legislation. We are dealing with the law, and it would appear that the democratic fiction is not the first fiction upon which legislation is based. Absolute rulers, for example, legislating as they saw fit without recourse to the people, all or a majority,  felt the need  to cloak their legislation with fictions, whether to endow their laws with prestige and authority, or to claim supernatural inspiration, or yet channel anger at their decrees to some uncontrollable Supreme Being. In recent generations the prevalent fiction has been the parliamentary, with dictators bringing their fiats for ratification by their loyal parliamentarians, members of their sole party, for whom to disobey is to suffer.
This parliamentary fiction was used by totalitarian communism, by fascist Germany, Italy and France, and by monarchies in which the king was sovereign and parliamentary approval merely a ritual based on fear  and awe. Another fiction was the personification of the  nation in its ruler, as expressed by Louis XIV :"L'etat c'est moi".
The most famous fiction- relevant to our discussion- is the monarch who claims to be the instrument of God.There is reason to assume that the Christian theory of the divine election of the monarch is founded on the Bible. Melchizedek King of Shalem, a contemporary of Abraham, is called "Priest of the Supreme God" (even though he was not a Hebrew like Abraham). Saul, David , Zedekiah and Josiah were "anointed of the Lord", as if the oil used to anoint royalty somehow conferred on them the status of being chosen by God, and the anointing vested them with a divine spirit. 
Just as the future  Messiah (literally:"the anointed one") would be sent by God, so was the past Messiah. In this way, mediaeval Christian kings saw themselves as ruling by divine right. The common folk saw them as representing God on earth, and to disobey them  was to sin against God.(It is told that an early Pope, Hildebrand, angry at  trespassing kings,  declared them  sent by the devil).It was held that if  kings ruled, decreed and used power, it was by the will of God. To obey was to serve God.
The New Testament says:
"Everyone must submit himself to the governing authorities for there is no authority except that which God has established.  The authorities that exist have been established by God. Consequently he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgement on themselves" (Romans 13: 1-2).
If this is true for any authority, how much more so for a king.
But the aim of the fiction of divine guidance was not just to ensure compliance: the masses never refrained from sinning, confessing their sins, and making some small penance to be cleansed and free of  sin. Rulers on their part had military and police forces that were neither restrained nor inhibited at all in enforcing compliance. Obviously they had other, perhaps more important aims.
The first was to perpetuate law. The law of God being held as eternal since creation, many legislators were tempted to claim to be authoritative spokesmen of the divine.
Psychologically any legislator (and, for that, any author too)hopes that his creation will stand the test of time, never to be forgotten or rescinded; it is not surprising then that arrogant rulers and legislators saw themselves as messengers of God upon whom rested the spirit of the Lord. Some were aware of their inner need for perpetuity and were driven to satisfy it. Others were possessed of the need to become eternal without being aware.
Beyond subjective desires for eternity there is an objective legislative policy .Ever since early times, there has been a tendency to ensure legal stability, generally through a specific injunction that the law was immutable. Stability was not merely in the interest of those under the law; it was the key to the smooth functioning of legal or religious systems. In theory and practice, governmental stability depended on firm legal and religious foundations, of which they were justly proud.
In terms of mass  psychology, stability was  more  important even than for legislators. Belief in divine order, omnipotence and omniscience meant belief in the laws of God that guaranteed order, as well as in supreme justice and pure truth.
Elevated on the pedestal of faith, law, as religion, became the object of adoration.
These were qualities of God-given law. In the absence of further revelation, the masses transferred their belief to the laws of those who claimed to legislate in the name of God.
The fiction of attributing the personality or status of the law-giver to God was a development of the previous fiction, which held that one or more gods handed down the law. This is a very ancient fiction found in all old legal systems.  The Sumerians said their laws came from the gods Hani and Nisba. Hammurabi ascribed his laws to the sun-god. The Etruscans thought the god Tages gave them their laws. The Cretans looked to Jupiter, the Spartans- to Apollo, the Greeks to Zeus and the Romans to their goddess Agria, and so on. It is a precept of Islam that every word in the Koran was said by  the angel Gabriel who in turn transmitted the holy message to the prophet Mohammed. Only the Christians admit that their holy laws are man-made.
The Islamic tradition  was inspired by the Jewish one. It is a Jewish tenet that Moss received the entire Law from God:
“He who says that the Law is not from God, even one letter, if he says Moses gave it, he is a blasphemer against the Law and its interpreters” (Maimonides) “Its interpreters” refers to the scholars of the Talmud. Belief in the God of Israel equals belief in his Law. So that divine legislation is a manifestation of divine glory. Take away the Law and we know nothing of God.
All the surrounding nations received laws from their gods.So did the people of Israel, but there was no other God like him (Exodus 15,11) and none of their laws matched his  for justice  (Deuteronomy 4,8)..The difference was not that we had a law-giving god and they did not. The difference lay in the nature and greatness of the God of Israel and his legislation, seen as superior to the others. Even more so when those gods were idols, made by man, and clearly incapable of legislation. Naturally ascribing legislative abilities to those divinities was a fiction and today few would dispute that. But there is no doubt that those idol-worshippers believed their laws were given by their gods, and that fiction was vital to ensure compliance.
As for the laws of the one God, in whose name Moses led the Israelites out of  Egypt, perhaps here too we must see that  we are dealing with a  like fiction.It was meant not just to inspire fear of the law but to present to the people its God, a God of truth, justice and law.We do not need this perception because so many do believe in the divinity of the law. Such people will not be convinced anyway, and we do not argue with them.
The perception is required to silence those who say that only a lack of belief in God can explain the assertion of this fiction. The copyright for this perception belongs to Spinoza, who did believe in God-although not in the biblical God of Israel.But the basic assumption for his idea that the law was not of divine origin was his belief that an omnipotent, omniscient God indeed ruled the universe.  Furthermore, God also legislates:  is this not the divine natural law that is part of creation and is manifest in the regularity of nature. There is too a divine law that is revealed not in nature but in the hearts of men, that inner law that causes mankind to know and love God:”And they may call it the precepts of God, because they presumably were given to us by God insofar as he exists in our spirit” (Theological-political Tractate, ch,4).
The main thing about natural divine law is that like all laws of the cosmos it must apply to all humanity- none are exempt, none may disobey, the law stands valid whether we like it or not. But if humans can flout the law, it cannot be divine.
Spinoza notes three criteria for  natural divine law: First, it is not in need of historical proof,by attribution to miraculous or divine origins, or heavenly inspiration. Second, it does not require ceremony and is not in need of any ritual.Third, obeying the law brings no reward, its flouting-no punishment.” The only reward is knowledge of  the law itself, that is God, and loving him freely and with a contented spirit.
Yet not all that claims to be or is presented as divine law is worthy of the name.
To be divine it should exhibit the highest justice, honesty, wisdom, insight, goodness and beneficence.  Law does not become just by describing  it as divine.Only if truly just can it be divine.A law, claiming divine origin, that is in any way unjust or immoral -loses its divinity.Precepts attributed biblically to God as “the word of God”, directly or through prophets speaking in his name, can be recognised as authentically divine law only by their content: there being no “divine” content except grace, justice,honesty and duty(Spinoza, ch 12). These are the true values, even when humanly assessed, there being no difference between human and divine justice-for the ground assumption is that God wishes man to be good, not wicked. Although these laws are eternal , for God’s will cannot be finite, they are different than natural divine laws in that man can disobey them and be wicked instead of good.(Political tractate 2,22)
All other laws attributed to God are in fact human in origin, including laws of religious content such as the laws of ritual and sacrifice or the laws of studying Torah.All laws were made by man for practical reasons, whether to make life safer or more comfortable or to answer religious needs.
Spinoza notes three characteristics for man-made law: first, that rewards for compliance and punishments for contravention be palpable, unlike the spiritual rewards or punishments related to divine law. Second, that the aims and purposes g legislation are social and functional  and not just moral.Third, the law emphasises provable deeds or misdeeds, not beliefs, opinions or thoughts. Palpable rewards include honour, wealth, health, the meeting of cultural and religious needs etc. whereas spiritual recompense is but happiness and tranquillity.  Palpable punishment includes death, imprisonment, fine or corporal punishment, and spiritual punishment is no more than remorse.
We find the bible full of man-made law presented as divine. Why was this done if not to impress upon  otherwise recalcitrant masses that laws had to be obeyed. To ensure compliance, laws had to be ascribed to the inspiration or pronunciation of a supreme authority, whose biblical annals proved his might and ability to strike down those who disobeyed.On the other hand, in order to encourage and not terrify the  masses, Moses
brought religion into the State and made many promises of divine blessings (Theological-political tractate, ch. 4).
As noted: the divinity of law is no longer part of theology, but is  another legal fiction. 
If Law is said to be divine, it is to attain  a given legal aim. Authentic divine law- pertaining to abstract grace, justice and honesty, is not legally valid, and  cannot be viewed as “law”(jus)., except by virtue of domestic legislation: “ Justice cannot have the force of law unless so decided by those in authority,and God has no special powers over men except through those in power”(op.cit., ch.19)In other words, divine law is not binding unless so legislated by flesh and blood; failing which it is no more than  religious precept subject to faith and conscience.No wonder that Spinoza's teachings caused consternation and disgust among the rabbis, and non-Jewish theologians also rejected it. For it negates the possibility or at least the likelihood of  accepting divine law as truth,  and exposes that divinity as the presumption of a human legislator. To me it is difficult if not impossible to contradict Spinoza.
For how can the God of mercy and justice tolerate the division of mankind into masters and servants? or the cruelty shown towards idolaters who were also-presumably-created in his image? (cf:" thou shalt not suffer a soul to live..."), or discrimination between men and women, both allegedly created in his image, or the terrible curses and atrocities (plagues) ascribed to him, etc. But the human legislator wanted to portray to the masses a most terrible God to be feared and respected.This was a God of the type known according to prevailing custom, whose inhumanity or injustice was unimportant. However this could not be the God who is manifest in the glory of creation and whose natural law is perfect.
Maimonides too was concerned with the theoretical question of differentiating between divine and man-made law.At one point he gives a simple solution, noting that the human legislator confesses his laws are not divine- which may have been true in his time and under Moslem sovereigns, but  did not apply to legislators who claimed to  act in the name of God- and where there is confession,  there is no need of proof. Maimonides, though, does not  stop at this straightforward answer, and in another place offers a practical test. He writes:
"Any law aimed at, and designed by its creator for...the proper running of a state and its condition, with the prevention of injustice and violence on its part (without entering into theory or ideas, whether right or wrong)  ensuring that  relations between people shall be orderly...so that they may attain some happiness according to the ideas of that lawgiver- such legislation is man-made.Whereas a law meant to examine matters spiritual as well as temporal, stressing what is the right concept of God and his messengers,in an effort to teach man to understand, to perceive reality in its truth,- know then.. that such law is divine.(The Guide of the Perplexed,2,40) In other words: a mortal lawgiver does not define belief and faith, and does not interfere in people's thoughts. He lays down only the arrangements needed to his mind to ensure the smooth working of society.On the other hand the divine lawgiver goes further to add precepts that are meant to prompt and compel man  to adhere to given beliefs and ideas. Another further distinction is rejected by Maimonides: one should not say that whereas man-made law is open to scrutiny and rational challenge, divine law is above examination.The unwillingness to attempt rational study of divine law is, according to him "a disease found in the souls of the weak-willed",and he proves from the Bible that each precept comes" to give a correct view or remove an incorrect one, or to define a just law, or remove injustice, or to educate to good deeds , or warn against misdeeds"(op.cit 3,31). These aims and contents may be revealed by study, this is not only permitted but very desirable, to investigate the reasons underlying precepts, so that faith may be strengthened in divine wisdom and justice. Not that Maimonides himself was able to discover the reasons for all (Jewish) precepts: some  of them, he admits, "are of hidden reason, and their value unclear to me"(op.cit.3,49).
It follows that the divinity of law is not, according to Maimonides, just a matter of faith- even though he includes this divinity in his Articles of Faith. He needs the rational viewpoint in addition to, or perhaps in spite of, his faith, not just to prove the wisdom and justice of divine law but also to differentiate between secular and divine law.I fear that his method is not helpful: nothing can stop a mortal lawgiver from including in his laws also moral and religious precepts, and not a few lawgivers have done so.
The fact that the law instructs man to love and worship one or more gods, and obey the precepts, to pray and make sacrifice- proves nothing. On the contrary, it is logical that the human lawgiver should instruct that God be loved and worshipped, rather than that God -or the gods- should seek man and impose love upon him. To take sacrifices for example, it is hardly plausible that God himself fixes the menu of delicacies to be offered to him, or that he needs the blood of oxen, sheep and goats, or myrrh and frankincense with oil, or that he deems as grace(!) a  "sin-offering" to assuage his appetite.  Pagans indeed thought that the gods needed to eat and drink, and that sacrifice would feed them. This was true of  Babylonians, Egyptians, Canaanites, Greeks and Romans who feared that if the gods were not properly fed they would become angry, vengeful, and unpardoning.
This was, as Maimonides says:
"...the most famous custom around the world at that time, the general form of worship being the sacrifice of sundry animals in temples where images stood to which they would bow and offer incense"(op.cit. 3,32)
Maimonides further notes that " in His wisdom and clear guidance to all creation, God did not instruct us to cease such worship, as people were used to it". The lawgiver was well aware the the generation of the  Exodus, largely uncouth, would reject a God who could not taste or smell, and rejected their sacrifices.Therefore he ordered that a tabernacle  be constructed for God, a Temple within which he would receive sacrifices of all sorts.Maimonides says this was of course the divine lawgiver whose purpose was to fight idolatry and focus worship upon himself alone.But that aim could have been attained simply by forbidding all sacrifice to God, just as non-Jewish worship was banned. In fact sacrifices persisted in honour of other deities for hundreds of years in Israel and Judea. One may discern too in the words of the prophets who attested to  a divine disgust with sacrifice, more than  a hint that a human lawgiver was responsible for sacrifice. Certainly rejection of sacrifice. was more in keeping with a merciful deity who felt compassion for all his creatures, including animals, than gluttony.If  Maimonides was right in saying that sacrifice answered a popular need, to obtain satisfaction in  compliance with an ancient tradition that also resembled the customs of their neighbours, then this was no more than legislation for the common good- and within the realm of the human legislator.
A sub-fiction be be detected in the laws of sacrifice, one that assumed divine satisfaction with sacrifice.Such fictions are found throughout the Bible: one is instructed to see God as if he created the universe, in six days, resting on the seventh; as if he brought the children of Israel out of Egypt, and performed miracles, as if he appeared on Mount Sinai and spoke in thunder- all these fictions add up to one comprehensive normative fiction, one that asks us  to see the Torah as if given to Moses by the mouth of God, and that we are expected to believe in him as if he exists.
All these fictions are subsumed in the Bible, and as in the sake of legal fictions that are assimilated into the body of law, one is expected to keep the law as spelled out.
One must love God- this is the law, even if he does not exist.One must keep Biblical precepts-even if they are not sent from heaven. 
The fiction remains, and is to the lawgiver almost irrelevant, having achieved its aim. But to the recipient, or the outside observer, the fiction maintains its relevance by stressing the origin of law, the authority of the lawgiver and one's attitude to both.
As noted,  legal fictions are supposed to help in achieving  desired goals, be they to spread justice or make peace, or  help lighten their burdens or simplify and develop procedures of law and administration. The divine fiction, with attendant or ensuing theocracy, was created to reach these goals and it has attained some. On the one hand, unlike other legal fictions, it has led directly or otherwise to religious fanaticism, bloodshed, torture, persecution and many  forms of evil- although this was not its aim. One may assume that Moses, Lawgiver of the Torah, never imagined that these might be the results of his legislation in God’s name. I think that any rational and sensible person will not but stand in awe of such a lawgiver of genius, who had the audacity to invent such a divine fiction to construct a magnificent structure of  law and religion. There has never been in Israel such a lawgiver like Moses, who knew God, the product of his imagination, and knew him well, and I tend to think that ultimately Moses quite sincerely came to believe in him.
I am reminded in this context of a stanza by Nietzsche, from his ”Joyful Science:
"God loves us as he created us
Man created God you will say..
But cannot man not love his own creation?
And what he has created, can he deny it exists?
And with a wry smile the poet added:  “the very  work of the devil,- and a weak argument...."