Twenty-five years ago, I was a law student interviewing for a position at a firm after a decade of serving as a shul rav. I met for lunch with the firm’s lead named partner – a completely secular Jew – and he began by challenging my Orthodoxy.
“How,” he asked me, “could Orthodox Jews justify constructing a religion around legal fictions?” He mentioned eruvin and mechirat chametz.
I began my reply by asking him if he realized how much of the secular civil law he practices is based on legal fictions – complete fabrications that the law adopts to foster smooth legal procedures. He asked me for specific examples, so I began:
When someone is served with (i.e., given) a complaint – a document that begins a legal action – he may file a motion to quash service if he believes it was given to him improperly. The premise of the motion is that, since the service was improper, no notice of the action was given.
Of course, the whole notion is absurd. If he truly had no notice of the action, how could he file a motion that includes the name of the case and the case number? And how would he know in which court and before which judge to file it?
In California, where I practice and teach law, a defendant may respond to a complaint by submitting a “general denial.” In that one-sentence denial, the defendant states that he or she denies the truth of each and every fact stated in the complaint. Typically, the complaint states the defendant’s name among other facts. Is the person making the general denial really claiming his name is wrong too? Of course not.
Rather, it is understood that the “general denial” disputes certain alleged facts plus other facts that are incontrovertibly true. But this general denial is not regarded as perjury; it is regarded as a “procedural formality” – in other words, a legal fiction.
And so it goes. The law in California assumes that postal mail within the state takes five days to arrive; if it arrives sooner, it is still treated as if it came five days after it was mailed.
Here’s another example: Statutes of limitation assume that after a certain amount of time, memories fade, evidence disappears, and witnesses vanish. Although the basic premise is sound, is it really logical to say that one minute after the statute of limitations expires, all evidence and witnesses are suddenly gone and nothing can be accurately remembered?
One more example: In California’s law of defamation, there is a quirk called the “single publication rule.” Under it, a person has just one year to sue after a defamatory statement has been published. In a case before the California Supreme Court, a person who had been terribly defamed in an oral history sought damages, but the defendant argued successfully that a year had already passed since one copy each of the oral history had been placed in a dozen university libraries.
The plaintiff retorted that, since the oral history had not been published as a book and had only been placed in a dozen university library archives completely hidden from public access, it was impossible for him to have known about the defamation. Indeed, he had only become aware of it after a scholar chanced upon it one day while doing research in some isolated stacks and notified the defamed person. The court held, however, that the oral history has been “published,” thus placing the plaintiff on notice and triggering the one-year statute of limitations.
Legal fictions exist throughout secular civil law. Sometimes they can be even more confounding than “legal technicalities.” However, law systems are built on them. Society determines that, for sanity and order, certain assumptions will be deemed to be true – even if they patently are not.
Ironically, as I explained at that interview lunch, eruvin and mechirat chametz are not actually legal “fictions.” They are profoundly real. An entire tractate of Talmud is devoted to the myriad specifics of constructing an eruv. Similarly, mechirat chametz is not a game. The non-Jew to whom the chametz is sold has the right to possess the chametz. The bill of sale must be dated correctly, and proper emendations must be made for those intending to be in different time zones.
The non-Jewish buyer needs to know what is going on and typically engages in several different transactions at the time of sale, ranging from paying money in negotiable precious-metal currency (like silver dollars) to providing the seller with a form of clothing that he must put on and wear, to shaking hands on the deal – all in the presence of proper witnesses.
It was an interesting lunch. I turned down his offer.