A Legal Fiction

Image: Flickr

Sometimes it’s easier to reach a just legal result by reconceiving facts than by rewriting a rule. A classic example is Mostyn v. Fabrigas, decided by the King’s Bench Court in 1774. Fabrigas was a resident of Minorca, a Mediterranean island which was then occupied and controlled by England. He was imprisoned by Mostyn, the governor of the island. Fabrigas wanted to sue him, but no suit could be brought against Mostyn in Minorca without the approval of the governor. So Fabrigas sued him instead in the Court of Common Pleas in London for trespass and false imprisonment, winning a jury verdict of £3,000. Mostyn appealed, claiming correctly that the trial court had jurisdiction only in cases brought by residents of London, and Lord Mansfield, resoundingly, declared that Minorca was part of London for purposes of this action. The assault had occurred “at Minorca, to wit at London, in the parish of St. Mary-le-Bow, in the Ward of Cheap.”

That’s from University of Virginia scholar Frederick Schauer’s “Legal Fictions Revisited,” in Maksymilian Del Mar and William Twining’s Legal Fictions in Theory and Practice (2015). He adds this wonderful footnote:

There is a story, probably apocryphal, that, in 1939, the renowned and beloved deer which graze on the grounds of Magdalen College, Oxford, were at risk of being requisitioned during the wartime food shortage by the Ministry of Food. In order to prevent such an occurrence, it is said, influential Magdalen graduates in the government arranged to have the deer reclassified as vegetables and thus be spared from the slaughterhouse. More recently, it is reported that Magdalen’s noisy swinging door has been informally classified as a musical instrument in order to bring it within the prohibition on playing musical instruments at certain hours.

Supply and Demand

It is interesting to note that there are considerable manufactures of things the direct desire for which seldom or never asserts itself at all. There are immense tracts and Bibles produced, for instance, which are paid for by persons who do not desire to use them but to give them away to other persons whose desire for them is not in any way an effective factor in the proceeding. And there are numbers of expensive things made expressly to be bought for ‘presents,’ and which no sane person is ever expected to buy for himself.

— Philip H. Wicksteed, The Alphabet of Economic Science, 1888

The Trust Game


University of Iowa economist Joyce Berg devised this test of social expectation. Two players are each given $10. The two are anonymous to one another and may not communicate. The first player, known as the trustor, is given the option to transfer any part of her $10 to the second player, who is known as the trustee. Whatever she sends will be tripled; if she sends $5 the trustee will receive $15. The trustee then has the option to return any portion of what she’s received. The game is played only once, so the two players have no opportunity to communicate through repeated play.

What should they do? If the two trust one another perfectly, then both stand to double their money — the trustor will give all $10 to the trustee, who now has $40. If she returns half of that, then each player has $20.

The trouble is that rational players, who seek to maximize their personal gains, won’t behave this way. If the trustor gives the trustee $10, she can just keep all of it, walking away with $40 and leaving the trustor with nothing. Realizing this, the trustor should send nothing at all, keeping at least the $10 she was given. This is the rational expectation.

But in actual experiment, Berg found that fully 30 of 32 trustors sent money, and they sent an average of $5.16. This is surprising. “From a rational choice perspective,” she wrote, “subjects who sent money must have believed their expected return would be positive; but given the noncooperative prediction, why would they believe this?”

(Joyce Berg, John Dickhaut, and Kevin McCabe, “Trust, Reciprocity, and Social History,” Games and Economic Behavior 10 [1995], 122-142.)

The Silent Trade

The 15th-century Venetian navigator Alvise Cadamosto describes a curious convention by which the Mauritanian Azanaghi traded salt with the merchants of Mali:

All those who have the salt pile it in rows, each marking his own. Having made these piles, the whole caravan retires half a day’s journey. Then there comes another race of blacks who do not wish to be seen or to speak. They arrive in large boats, from which it appears that they come from islands, and disembark. Seeing the salt, they place a large quantity of gold opposite each pile, and then turn back, leaving salt and gold. When they have gone, the Negroes who own the salt return: if they are satisfied with the quantity of gold, they leave the salt and retire with the gold. Then the blacks of the gold return, and remove those piles which are without gold. By the other piles of salt they place more gold, if it pleases them, or else they leave the salt. In this way, by long and ancient custom, they carry on their trade without seeing or speaking to each other.

In this way different cultures can trade safely without speaking the same language. It’s called the “silent trade”; Herodotus describes a similar practice between Carthage and West Africa, and it’s been reported also in Siberia, Lapland, Timor, Sumatra, India, Sri Lanka, and New Guinea.

Why didn’t the Malians simply take the salt? Presumably because trade was more valuable to them in the long run. I wonder how such a custom gets started in the first place, though.



Letters to the Sydney Morning Herald during the planning of the Sydney Opera House:

“Faced with the nightmare illustrated in your columns, some 25th century Bluebeard’s lair, its ominous vanes pointed skywards apparently only for the purpose of discharging guided missiles or some latter-day nuclear Evil Eye, words fail.”

— W.H. Peters, Sydney, Jan. 31, 1957

“To me, the winning design suggests some gargantuan monster which may have wandered over the land millions of years ago. It certainly is right out of place beside the dignity of the Harbour Bridge.”

— M. Rathbone, Kensington, Jan. 31, 1957

“This whale of a monument to the clever ugliness of ‘modern’ art will be a constant eyesore. Its over-finished roof with many curved surfaces all covered with white tiles will be a glaring monstrosity. Could not the suffering which it will cause be more equitably distributed by constructing the fins in such a way that they will act as giant megaphones and thus keep residents on the north supplied with the dying screams of melodramatic sopranos?”

— J.R.L. Johnstone Beecroft, Feb. 1, 1957

“With all respects to so-called modern art, I feel that the design is completely unbefitting our foreshores. Perhaps the judges had in mind the installation of a Big Dipper on the peak of the roof to help the opera company balance its budget.”

— Jack Zuber, Kingsgrove, Feb. 1, 1957

In 2003 Danish architect Jørn Utzon received the Pritzker Architecture Prize, architecture’s highest honour. The citation read, “There is no doubt that the Sydney Opera House is his masterpiece. It is one of the great iconic buildings of the 20th century, an image of great beauty that has become known throughout the world — a symbol for not only a city, but a whole country and continent.”

Youth and Genius

Mathematician Norbert Wiener entered university at age 11 and earned a doctorate at 17, but he was 7 years old before he learned that Santa Claus does not exist. From his 1953 memoir Ex-Prodigy:

“At that time I was already reading books of more than slight difficulty, and it seemed to my parents that a child who was doing this should have no difficulty in discarding what to them was obviously a sentimental fiction. What they did not realize was the fragmentariness of the child’s world.”

In his 1909 autobiography Memories of My Life, Francis Galton remembers a boarding school to which he was sent at age 8:

“In that room was a wardrobe full of schoolbooks ready for issue. It is some measure of the then naïveté of my mind that I wondered for long how the books could have been kept so fresh and clean for nearly two thousand years, thinking that the copies of Caesar’s Commentaries were contemporary with Caesar himself.”

In Fragments of Genius, his 1989 survey of the feats of idiots savants, Michael Howe notes that a study of 8-year-olds who were exceptional chess players showed that they were perfectly normal in other spheres. “And the transcripts of interviews in which highly gifted young adults talk about their childhoods, supplemented by interviews with their parents, are full of testimonies to the extreme ordinariness of the individuals, outside their particular area of special talent.”


The following story is true. There was a little boy, and his father said, ‘Do try to be like other people. Don’t frown.’ And he tried and tried, but could not. So his father beat him with a strap; and then he was eaten up by lions.

Reader, if young, take warning by his sad life and death. For though it may be an honour to be different from other people, if Carlyle’s dictum about the 30 millions be still true, yet other people do not like it. So, if you are different, you had better hide it, and pretend to be solemn and wooden-headed. Until you make your fortune. For most wooden-headed people worship money; and, really, I do not see what else they can do. In particular, if you are going to write a book, remember the wooden-headed. So be rigorous; that will cover a multitude of sins. And do not frown.

— Oliver Heaviside, “Electromagnetic Theory,” in The Electrician, Feb. 23, 1900

(When asked the population of England, Thomas Carlyle had said, “Thirty million, mostly fools.”)

The Case of the Speluncean Explorers

Image: Wikimedia Commons

In the year 4299, five cave explorers are trapped by a landslide. To stay alive they decide to engage in cannibalism, choosing the victim by throwing dice. When the four survivors are rescued, they’re convicted of murder and face a mandatory sentence of death. After a public outcry, the “Supreme Court of Newgarth” takes up the case. Its five judges subscribe to five different legal philosophies, with the result that two vote to affirm the convictions, two vote to overturn them, and one recuses himself. As this is a tie, the original conviction is upheld and the four explorers face death.

Harvard philosopher Lon L. Fuller presented this story in 1949 to contrast various legal philosophies prevailing in the 20th century, primarily natural law and legal positivism.

But in the ensuing years, dozens of further hypothetical judgments have been offered by writers from perspectives ranging from historical contextualism to process theory. Frank Easterbrook wrote in 1999 that Fuller’s essay combines “a timely consideration of contemporaneous debates with a timeless quality that continues to entice students and scholars to think and write about [it] some half a century later — and will doubtless engage our successors well into the next millennium.”

Fuller had written, “The case was constructed for the sole purpose of bringing into a common focus certain divergent philosophies of law and government. These philosophies presented men with live questions of choice in the days of Plato and Aristotle. Perhaps they will continue to do so when our era has had its say about them. If there is any element of prediction in the case, it does not go beyond a suggestion that the questions involved are among the permanent problems of the human race.”

(Lon L. Fuller, “The Case of the Speluncean Explorers,” Harvard Law Review 62:4 [February 1949], 616–645.)

Podcast Episode 355: The Auckland Islands Castaways


In 1864, two ships’ crews were cast away at the same time on the same remote island in the Southern Ocean. But the two groups would undergo strikingly different experiences. In this week’s episode of the Futility Closet podcast we’ll tell the story of the Auckland Islands castaways and reflect on its implications for the wider world.

We’ll also consider some fateful illnesses and puzzle over a street fighter’s clothing.

See full show notes …

The Paradox of the Just Law

How can a just law have a claim on our obedience? Murder is wrong, regardless of what the law says about it; we expect people to refrain from murder because it’s wrong, not because it’s prohibited or punished. I’d be offended if someone suggested that it’s only respect for the law that’s restraining me from committing murder. But this suggests that we don’t have an obligation to obey laws that prohibit murder — a morally conscientious person should never find himself obliged to submit to them.

“The more just and valuable the law is … the more reason one has to conform to it, and the less to obey it,” writes legal philosopher Joseph Raz. “Since it is just, those considerations which establish its justice should be one’s reasons for conforming with it, i.e., for acting as it requires. But in acting for these reasons one would not be obeying the law, one would not be conforming because that is what the law requires.”

(Note, though, that Raz says the paradox is only apparent — see his full paper here.)

(Scott Hershovitz, “The Authority of Law,” in Andrei Marmor, ed., The Routledge Companion to Philosophy of Law, 2012.)