Legal historians have often observed that legal fictions, and other doctrinal mechanisms that create daylight between the common law’s formal apparatus and its substantive normative concerns, have played a significant role in the common law’s development.340 Medieval actions, such as ejectment and trover, protected property in chattels and land through fictions involving nonexistent lessors and imaginary findings of “lost” property.341 Until quite recently, the common law ordered reversals of mistaken payments by fictionally stipulating an implied promise by the recipient to reverse any such payment.342 Creative pleadings asserting injury in breach of the king’s peace — pleadings sometimes strained, sometimes outright false — progressively expanded the range of tort actions cognizable in the royal courts.343 And, concealed beneath the facially strict character of trespass (the central action in medieval tort law), it is likely that a substantive concern for fault-based moral responsibility was opaquely at work.344 In all of these ways and others, “the common law has [engaged] in the abuse of its elementary ideas”345 — manipulating, obscuring, and sometimes ignoring the doctrinal strictures ostensibly imposed by its basic forms — in order to “reach[] reasonable results behind institutions and procedures of quite unreasonable artificiality.”346
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