fact
A fact is a datum about one or more aspects of a circumstance, which, if accepted as true and proven true, allows a logical conclusion to be reached on a true–false evaluation. Standard reference works are often used to check facts. Scient ...
assumed or created by
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
s, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
jurisdictions, particularly in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
.
Development of the concept
A legal fiction typically allows the court to ignore a fact that would prevent it from exercising its jurisdiction by simply assuming that the fact is different. In cases where the court must determine whether a standard has been reached, such as whether a defendant has been negligent, the court frequently uses the legal fiction of the "
reasonable man
In law, a reasonable person, reasonable man, or the man on the Clapham omnibus, is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions.
Strictly according to the fiction, it is ...
". This is known as the "
objective test
Objective tests are measures in which responses maximize objectivity, in the sense that response options are structured such that examinees have only a limited set of options (e.g. Likert scale, true or false). Structuring a measure in this way is ...
", and is far more common than the "subjective test" where the court seeks the viewpoint of the parties (or "subjects"). Sometimes, the court may apply a "mixed test", as in the House of Lords' decision in ''
DPP v Camplin
''DPP v Camplin'' (1978) was an English criminal law appeal to the House of Lords in 1978. Its unanimous judgment helped to define the main limits of defence of provocation chiefly until Parliament replaced the defence with one of "loss of con ...
'' 1978.
Legal fictions are different from legal presumptions which assume a certain state of facts until the opposite is proved, such as the
presumption of legitimacy The "presumption of legitimacy" is a common law rule of evidence that states that a child born within the subsistence of a marriage is presumed to be the child of the husband.
Early history
Paternity is considered an important issue in determining ...
. A legal fiction, by contrast, can be seen in laws recognizing "virgin birth", i.e., that a child born to an unmarried mother has no biological, psychological, or sociological father. They are different from hypothetical examples, such as the 'reasonable person' which serve as tools for the court to express its reasoning. They are also different from legal principles which create a legal state of affairs that is different from the underlying facts, such as
corporate personhood
Corporate personhood or juridical personality is the legal notion that a juridical person such as a corporation, separately from its associated human beings (like owners, managers, or employees), has at least some of the legal rights and respons ...
although these are sometimes wrongly called legal fictions.
The term ''legal fiction'' is sometimes used in a pejorative way.
Jeremy Bentham
Jeremy Bentham (; 15 February 1748 Old_Style_and_New_Style_dates">O.S._4_February_1747.html" ;"title="Old_Style_and_New_Style_dates.html" ;"title="nowiki/>Old Style and New Style dates">O.S. 4 February 1747">Old_Style_and_New_Style_dates.htm ...
was a famous historical critic of legal fictions. Proponents of legal fictions, particularly their use historically (for example, before DNA evidence could give every child the ability to have both genetic parents determined), identify legal fictions as "scaffolding around a building under construction".
Examples
It is a legal fiction that the English courts do not "create" new law but merely "declare" the common law that has existed since
time immemorial
Time immemorial ( la, Ab immemorabili) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record". The phrase is used in legally significant contexts as well as ...
.
Adoption
Once an order or judgment of adoption is entered, the biological parents become legal strangers to the child, legally no longer related nor with any rights related to the child. Conversely, the adoptive parents are legally considered to be parents of the adopted child. A new birth certificate reflecting this is issued, which is a legal fiction.
Doctrine of survival
If two or more people die within a period of time or in a manner that renders it impossible to tell the order in which they died, the older of the two is considered to have died first.
Ejectment
The
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
had a procedure whereby title to land could be put in direct issue, called the "
writ
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
of right". The defendant could insist on trial by "wager of battle", that is
trial by combat
Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the ...
, a judicially sanctioned
duel
A duel is an arranged engagement in combat between two people, with matched weapons, in accordance with agreed-upon Code duello, rules.
During the 17th and 18th centuries (and earlier), duels were mostly single combats fought with swords (the r ...
. To avoid the
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
staking life and limb, a tale was told in the pleadings about how one
John Doe
John Doe (male) and Jane Doe (female) are multiple-use placeholder names that are used when the true name of a person is unknown or is being intentionally concealed. In the context of law enforcement in the United States, such names are often ...
leased land from the plaintiff but was ousted by Richard Roe, who claimed a contrary lease from the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
. Such events would lead to the "mixed action in
ejectment
Ejectment is a common law term for civil action to recover the possession of or title to land. It replaced the old real actions and the various possessory assizes (denoting county-based pleas to local sittings of the courts) where boundary disp ...
", a procedure to determine title via
trial
In law, a trial is a coming together of Party (law), parties to a :wikt:dispute, dispute, to present information (in the form of evidence (law), evidence) in a tribunal, a formal setting with the authority to Adjudication, adjudicate claims or d ...
by
jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...
. This is the origin of the names ''John Doe'' and ''Richard Roe'' for anonymous parties. The fiction of Doe, Roe, and the leases was not challenged by the parties unless they wished to stake their life on a trial by combat. Wager of battle fell into disuse by the end of the thirteenth century though it was not abolished in
England
England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
until 1819.
Jurisdiction of the Exchequer
In
England
England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
a legal fiction extended the jurisdiction of the Court of the
Exchequer
In the civil service of the United Kingdom, His Majesty’s Exchequer, or just the Exchequer, is the accounting process of central government and the government's ''current account'' (i.e., money held from taxation and other government reven ...
to all types of cases involving
debt
Debt is an obligation that requires one party, the debtor, to pay money or other agreed-upon value to another party, the creditor. Debt is a deferred payment, or series of payments, which differentiates it from an immediate purchase. The ...
. The Exchequer had a much lighter caseload than the King's Bench and other courts in England. Litigants would commence an action in the Exchequer Court by pleading that they owed money to the King, which they could not pay because their debtor had in turn wrongfully withheld payment to them. The debt owed to the King became a legal fiction in that the original debtor was not entitled to controvert this allegation in order to oust the Exchequer from jurisdiction.
Jurisdiction of the Court of King's Bench
The
Bill of Middlesex
The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas. Hinging on the King's Bench's remaining criminal jurisdiction over the county of ...
was a legal fiction used by the
Court of King's Bench
The King's Bench (), or, during the reign of a female monarch, the Queen's Bench ('), refers to several contemporary and historical courts in some Commonwealth jurisdictions.
* Court of King's Bench (England), a historic court court of common ...
to gain jurisdiction over cases traditionally in the remit of the
Court of Common Pleas
A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
. Hinging on the King's Bench's retaining criminal jurisdiction over the county of
Middlesex
Middlesex (; abbreviation: Middx) is a Historic counties of England, historic county in South East England, southeast England. Its area is almost entirely within the wider urbanised area of London and mostly within the Ceremonial counties of ...
, the Bill allowed it to take cases traditionally in the remit of other common law courts by claiming that the defendant had committed trespass in Middlesex. Once the defendant was in custody, the trespass complaint would be quietly dropped and other complaints (such as debt or detinue) would be substituted.
Resignation from Parliament
In 1623 a rule was declared that
Members of Parliament
A member of parliament (MP) is the representative in parliament of the people who live in their electoral district. In many countries with bicameral parliaments, this term refers only to members of the lower house since upper house members of ...
were given a
trust
Trust often refers to:
* Trust (social science), confidence in or dependence on a person or quality
It may also refer to:
Business and law
* Trust law, a body of law under which one person holds property for the benefit of another
* Trust (bus ...
to represent their constituencies and therefore were not at liberty to resign. However, an MP who accepted an "office of profit" from the Crown (including appointment as a minister) was obliged to leave the House and seek re-election, because it was thought his independence might be compromised if he were in the King's pay. The device was invented that the MP who wished to quit applied to the King for the post of " Steward of the Chiltern Hundreds" or "
Steward of the Manor of Northstead
The office of Crown Steward and Bailiff of the Manor of Northstead functions as a procedural device to allow a member of Parliament (MP) to resign from the House of Commons of the United Kingdom. As members of the House of Commons are forbidden ...
" with no duties or income, but legally an office of profit in the King's gift. The first MP to avail himself of the Chiltern Hundreds to leave Parliament was John Pitt in 1751. The requirement for ministerial re-election has been abolished, but the "Chiltern Hundreds" mechanism remains to enable MPs to resign.
Surviving fictions
The fiction about Doe left homeless by Roe has been abolished in every common law jurisdiction. The fiction of Doe and Roe being the guardians of undisclosed parties who wish to bring suit, or the names of parties unknown, remains in some jurisdictions although not in
England
England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
. The doctrine of survival, although still existing in England, has been abolished in many
U.S. state
In the United States, a state is a constituent political entity, of which there are 50. Bound together in a political union, each state holds governmental jurisdiction over a separate and defined geographic territory where it shares its sover ...
s by the
Uniform Simultaneous Death Act
The Uniform Simultaneous Death Act is a uniform act enacted in some U.S. states to alleviate the problem of simultaneous death in determining inheritance.
The Act specifies that, if two or more people die within 120 hours of one another, and no w ...
. Some legal fictions have been invalidated as contrary to
public policy
Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public p ...
, as in the
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
's rejection in the '' Mabo'' cases of the doctrine of ''
terra nullius
''Terra nullius'' (, plural ''terrae nullius'') is a Latin expression meaning " nobody's land".
It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.
:
:
...
'', the legal fiction that there were no property rights to land in
Australia
Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
before the time of European
colonization
Colonization, or colonisation, constitutes large-scale population movements wherein migrants maintain strong links with their, or their ancestors', former country – by such links, gain advantage over other inhabitants of the territory. When ...
United Kingdom Supreme Court
The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland. As the United ...
found that Prime Minister Boris Johnson's prorogation of parliament had been unlawful, it lacked the authority to order the recall of Parliament. Instead, the legal fiction was maintained that Parliament had never been prorogued; any references to prorogation were expunged from the record, and Parliament was instead recorded as being
adjourned
In parliamentary procedure, an adjournment ends a meeting. It could be done using a motion to adjourn.
A time for another meeting could be set using the motion to fix the time to which to adjourn. This motion establishes an adjourned meeting.
...
, enabling it to reassemble the next day.
Philosophical arguments
Henry Maine
Sir Henry James Sumner Maine, (15 August 1822 – 3 February 1888), was a British Whig comparative jurist and historian. He is famous for the thesis outlined in his book '' Ancient Law'' that law and society developed "from status to contract. ...
argued that legal fictions seem an ornate outgrowth of the law that ought to be removed by
legislation
Legislation is the process or result of enrolled bill, enrolling, enactment of a bill, enacting, or promulgation, promulgating laws by a legislature, parliament, or analogous Government, governing body. Before an item of legislation becomes law i ...
.
Jeremy Bentham
Jeremy Bentham (; 15 February 1748 Old_Style_and_New_Style_dates">O.S._4_February_1747.html" ;"title="Old_Style_and_New_Style_dates.html" ;"title="nowiki/>Old Style and New Style dates">O.S. 4 February 1747">Old_Style_and_New_Style_dates.htm ...
sharply criticised the notion of legal fictions, saying that "fictions are to law what fraud is to trade."
William Blackstone
Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family i ...
defended them, observing that legislation is never free from the iron law of
unintended consequence
In the social sciences, unintended consequences (sometimes unanticipated consequences or unforeseen consequences) are outcomes of a purposeful action that are not intended or foreseen. The term was popularised in the twentieth century by Ameri ...
s. Using the metaphor of an ancient
castle
A castle is a type of fortified structure built during the Middle Ages predominantly by the nobility or royalty and by military orders. Scholars debate the scope of the word ''castle'', but usually consider it to be the private fortified r ...
, Blackstone opined:
Use in fiction
In the novel ''
Joan and Peter
''Joan and Peter'', a 1918 novel by H. G. Wells, is at once a satirical portrait of late-Victorian era, Victorian and Edwardian era, Edwardian England, a critique of the English educational system on the eve of World War I, a study of the impact ...
will
Will may refer to:
Common meanings
* Will and testament, instructions for the disposition of one's property after death
* Will (philosophy), or willpower
* Will (sociology)
* Will, volition (psychology)
* Will, a modal verb - see Shall and will
...
determining Peter's
legal guardian
A legal guardian is a person who has been appointed by a court or otherwise has the legal authority (and the corresponding duty) to make decisions relevant to the personal and property interests of another person who is deemed incompetent, call ...
. Later in the novel a witness to the accident declares seeing the mother floundering some time after the father has disappeared, and so the legal fiction is overturned and the mother's will is followed, providing Peter with a new legal guardian. Wells was in error as to the English law, which actually presumes that the older person died first.
In Act II, Scene 1 of
Gilbert and Sullivan
Gilbert and Sullivan was a Victorian era, Victorian-era theatrical partnership of the dramatist W. S. Gilbert (1836–1911) and the composer Arthur Sullivan (1842–1900), who jointly created fourteen comic operas between 1871 and 1896, of which ...
's ''
The Gondoliers
''The Gondoliers; or, The King of Barataria'' is a Savoy Opera, with music by Arthur Sullivan and libretto by W. S. Gilbert. It premiered at the Savoy Theatre on 7 December 1889 and ran for a very successful 554 performances (at that time the ...
'', Giuseppe Palmieri (who serves jointly with his brother Marco as King of Barataria) requests that he and his brother be recognized individually, that they might receive individual portions of food as they have two independent appetites. He is turned down because the joint rule "... is a legal fiction, and legal fictions are solemn things."
In the novel ''
Lud-in-the-Mist
''Lud-in-the-Mist'' (1926) is the third and final novel by British writer Hope Mirrlees. It continues the author's exploration of the themes of Life and Art, by a method already described in the preface of her first novel, ''Madeleine: One of Lo ...
'' (1926) by
Hope Mirrlees
(Helen) Hope Mirrlees (8 April 1887 – 1 August 1978) was a British poet, novelist, and translator. She is best known for the 1926 ''Lud-in-the-Mist'', a fantasy novel and influential classic,David Langford and Mike Ashley,
"Mirrlees, Hope", i ...
, the concept of the legal fiction as a secular substitute for spiritual mysteries and magical illusions is a central theme. Legal fictions in the novel include referring to fairy fruit, mention of which is taboo, as woven silk fabric in order to allow the law to regulate it; and declaring members of the country's Senate "dead in the eyes of the law" in order to remove them from office, since the senators serve for life.
Limitations on their use
Legal fictions derive their legitimacy from tradition and precedent, rather than formal standing as a source of law. Historically, many legal fictions were created as
ad hoc
Ad hoc is a Latin phrase meaning literally 'to this'. In English, it typically signifies a solution for a specific purpose, problem, or task rather than a generalized solution adaptable to collateral instances. (Compare with ''a priori''.)
Com ...
remedies forged to meet a harsh or an unforeseen situation. Conventions and practices over the centuries have imparted a degree of stability both to the institution of legal fictions and to specific legal fictions (such as adoptions and corporate personhood) that have been repeatedly invoked in judicial precedents. While judiciaries retain discretion in the use of legal fictions, some general propositions regarding the appropriateness of using legal fictions might be expressed as follows:
* A legal fiction should not be employed to defeat law or result in illegality: it has been always stressed that a legal fiction should not be employed where it would result in the violation of any legal rule or moral injunction. In ''Sinclair v. Brougham'' 1914 AC 378 the House of Lords refused to extend the juridical basis of a quasi-contract to a case of an borrowing by a limited company, since it would sanction the evasion of the rules of public policy forbidding an borrowing by a company. In general, if it appears that a legal fiction is being used to circumvent an existing rule, the courts are entitled to disregard that fiction and look at the real facts. The doctrine of "
piercing the corporate veil
Piercing the corporate veil or lifting the corporate veil is a legal decision to treat the rights or duties of a corporation as the rights or liabilities of its shareholders. Usually a corporation is treated as a separate legal person, which is so ...
" is applied under those circumstances.
* Legal fiction should operate for the purpose for which it was created and should not be extended beyond its legitimate field.
* Legal fiction should not be extended so as to lead to unjust results. For example, the fiction that the wife's personality is merged in that of the husband should not be extended to deny to the wife of a disqualified man the right to an inheritance when it opens. The wife of a murderer can succeed to the estate of the murdered man in her own right and will not be affected by the husband's disqualification.
* There cannot be a fiction upon a fiction. For example, in
Hindu law
Hindu law, as a historical term, refers to the code of laws applied to Hindus, Buddhists, Jains and Sikhs in British India. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nat ...
, where a married person is given in adoption, and such person has a son at the time of adoption, the son does not pass into his father's adoptive family along with his father. He does not lose his gotra and right of inheritance in the family of his birth. The second example would be that the adopted son would by a fiction be a real son of the adoptive father and his wife associated with the adoption. But to say that he will be the real son of all the wives of the adoptive father is a fiction upon fiction.
In religion
* In
Judaism
Judaism ( he, ''Yahăḏūṯ'') is an Abrahamic, monotheistic, and ethnic religion comprising the collective religious, cultural, and legal tradition and civilization of the Jewish people. It has its roots as an organized religion in the ...
, it is forbidden to own any ''
chametz
''Chametz'' (also ''chometz'', ', ''ḥameṣ'', ''ḥameç'' and other spellings transliterated from he, חָמֵץ / חמץ; ) are foods with leavening agents that are forbidden on the Jewish holiday of Passover. According to halakha, Jews ma ...
'' (leavened food) during
Passover
Passover, also called Pesach (; ), is a major Jewish holidays, Jewish holiday that celebrates the The Exodus, Biblical story of the Israelites escape from slavery in Ancient Egypt, Egypt, which occurs on the 15th day of the Hebrew calendar, He ...
, and any such products must be burned before the holiday. However, in practice, most Jews will sell all their ''chametz'' to a non-Jew before Passover for a nominal sum, typically through a rabbi acting as an agent on their behalf, then buy it back after the holiday ends, eliminating the need to destroy or give away large amounts of food.Laws of Selling Chametz Aish.com
See also
* ''
Ad hoc
Ad hoc is a Latin phrase meaning literally 'to this'. In English, it typically signifies a solution for a specific purpose, problem, or task rather than a generalized solution adaptable to collateral instances. (Compare with ''a priori''.)
Com ...
''
*
Copyright traps
Fictitious or fake entries are deliberately incorrect entries in reference works such as dictionaries, encyclopedias (including Wikipedia), maps, and directories. There are more specific terms for particular kinds of fictitious entry, such as Moun ...
* ''
De jure
In law and government, ''de jure'' ( ; , "by law") describes practices that are legally recognized, regardless of whether the practice exists in reality. In contrast, ("in fact") describes situations that exist in reality, even if not legally ...
''
*
Fiction
Fiction is any creative work, chiefly any narrative work, portraying individuals, events, or places that are imaginary, or in ways that are imaginary. Fictional portrayals are thus inconsistent with history, fact, or plausibility. In a traditi ...