The Unborn Child: A Fiction in Law

Another guest by Dr. Christine Y Albrecht


The unborn child is considered to be born, and the Mediterranean island is no longer an island: the law operates with fantasies and assumptions. Christine Y Albrecht He examined what constitutes it and why we need it.

The unborn child who is considered to be born under certain conditions, or the island of Menorca, which suddenly became a city of London. We should not forget such characters as the wise man, the good family man (head of the family) or the common consumer.

Law works in many places with fantasies and assumptions. But is there fiction in every assumption or are they just two completely different things?

Fantasies in law are disturbing at first sight

A feature of fairy tales is their undeniability. Stories are blind to real relationships. Therefore, refutable assumptions cannot be fanciful. With indisputable assumptions, such as the failure of the marriage after three years of separation according to Article 1566 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), things get interesting: here comes the role of the second feature of fiction for me: its character or irony. Fantasies in the law are disturbing at first glance. However, not every assumption that cannot be refuted is artificial – it depends on whether what is assumed deviates significantly from the expected course of things on a regular basis.

Fantasies in the law have repeatedly drawn vehement disapproval in the past. Even the author of the Austrian constitution, Hans Kielsen, wrote in 1911 in the preface to the main problems of constitutional law that one of the aims of his work was to eliminate fantasies.

At first glance, fantasy seems like a sleight of hand or, to some, just a lie. According to the English legal philosopher Jeremy Bentham, criticism has escalated to the point of “syphilis in law”. When it comes to legal fantasies, things get extraordinarily hot for a legal discussion. Legal scholars often fought against fantasies because they were seen as a symbol of hiding real problems. As if the legislature was too shy to say what they really wanted to say. In law, these fantasies are usually found in law books, such as the example of the unborn child in §1923 BGB.

“A fetus is considered a newborn” – too literary for the law

But there are also narratives created by the judicial development of law, which, however, can only be found in American English (and in ancient Roman law). An example is the attractive nuisance principle: if a child is injured by a dangerous object on their property, the property owner is treated as if they invited the child into the property. In these cases, it is about developing the law for the purpose of fairness. This is very different from the fairy tales in law books. You only find this kind of fantasy in Anglo-American law, as judges there have more freedom to develop the law.

First of all, narrations in legal texts also have flaws, for example making the referral technique more complex. If what is being referred to has changed, the legislature must also improve the imagination. This is of course error prone. But also in terms of language, the sign is sometimes more complex than it needs to be. Instead of writing the phrase “Exceptionally, unborn children have rights under the following conditions,” the legislators wrote: “Under the following circumstances, unborn children are considered born.” This is not bad at first, because most laws are not written for ordinary, legal people. However, formulas such as “consider the fetus being born” simply seem too literary for the law; These are foreign language bodies.

Imagination offers a huge advantage. In addition to the reference, the legislator can convey a second message: it shows that the highest legal principle, penetrating imagination, is very important for him. In the case of an unborn child (cf. §1923 para. 2 BGB) this is the rule: “Human legal capacity begins with the completion of birth.” (Article 1 BGB). With “fit as” the legislature does not directly recognize the breach at the linguistic level.

The difference is of a legal nature: if lawmakers write an exception directly into the law, that opens the door a bit more for more exceptions. Imagination is just a shade more conservative. However, since I personally prefer clarity and elegance in legal texts, I will remove these fantasies by paraphrasing. Then you will have to add “in principle” to Article 1 BGB and § 1923 Paragraph 2 BGB which will read: “Anyone who was not alive at the time of the inheritance, but has already been conceived, can also be an heir”.

How close is legal fiction to literary fiction?

Fiqh is a normative science. The purpose of the literary novel is quite different from the legal one. But there are also obvious similarities: when we meet the goddess Athena, the literary alter ego of American writer Charles Bukowski Hank Chinasky or Sherlock Holmes in Greek mythology, we find the head of the household, the sane man or the common consumer in law. But I find the comparison particularly fruitful when it comes to the question of whether fantasies are lies.

Literary novels face the same questions as legal novels: How can we say, for example, that it is true that Sherlock Holmes lives at 221B Baker Street in London? In both modern and historical London, no one has ever lived there with that name. Statements in literary texts, like grammar, are only indirectly accessible to the truth. It is therefore not surprising that legal fantasies, which are only indirectly accessible to the truth due to their literary and normative form, have often been referred to in the past as institutional lies.

So when in 1773 English judges declared Menorca a county of London (to seize the judiciary), it at first seemed like a lie. However, in the world of law, it is not – in fiction, the provocation lies precisely in that multifaceted game of references to the world of law and our social reality.

Anyone wishing to learn more can now order or have access to “Fiktionen im Recht” (Nomos 2020).

Dr. Kristen J Dress. Albrecht Law at the University of Heidelberg and is currently a Senior Scholar at the University of Salzburg.

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