Legal fictions
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A legal fiction is a
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 and false, true–false evaluation. Standard reference works are often used to Fact- ...
assumed or created by
court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of justice in Civil law (common law), civil, C ...
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 omnipres ...
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 Engli ...
.


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", 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'' 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. 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 A juridical person is a non-human legal person that is not a Natural person, single natural person but an organization recognized by law as a fictitious ...
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 ld Style and New Style dates, O.S. 4 February 1747– 6 June 1832) was an English philosopher, jurist, and social reformer regarded as the founder of modern utilitarianism. Bentham defined as the "fundam ...
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, Recorded history, record, or tradition, wikt:indefinitely, indefinitely ancient, "ancient beyond memory or record". The phrase is used in legal ...
.


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 omnipres ...
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. Warrant (legal), Warrants, prerogative wri ...
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 (pi (letter), Π in List of legal abbreviations, 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 co ...
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 Law enforcement ...
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 Legal personality, person or object who is the Party (law), party either accused of committing a crime in Criminal procedure, criminal prosecution or against whom some type of civil relief is being sought in ...
. Such events would lead to the "mixed action in ejectment", 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 Countries of the United Kingdom, 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 separa ...
until 1819.


Jurisdiction of the Exchequer

In
England England is a Countries of the United Kingdom, 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 separa ...
a legal fiction extended the jurisdiction of the Court of the
Exchequer In the civil service of the United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, co ...
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 de ...
. 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 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 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 Bicameralism, bicameral parliaments, this term refers only to members of the lower house since upper house ...
were given a trust 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" 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 Countries of the United Kingdom, 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 separa ...
. The doctrine of survival, although still existing in England, has been abolished in many
U.S. state In the United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, ...
s by the Uniform Simultaneous Death Act. 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 ...
, 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 Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Ti ...
'', the legal fiction that there were no property rights to land in
Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
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 ...
. The 2019 UK prorogation controversy was resolved through the use of legal fiction. Although the
United Kingdom Supreme Court The Supreme Court of the United Kingdom (initialism: UKSC or the acronym: SCOTUK) is the Supreme court, final court of appeal in the United Kingdom for all civil cases, and for criminal cases originating in England, Wales and Northern Ireland ...
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 (parliamentary procedure), meeting. It could be done using a Motion (parliamentary procedure), motion to adjourn. A time for another meeting could be set using the motion to fix the time ...
, enabling it to reassemble the next day.


Philosophical arguments

Henry Maine 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 enrolling, enacting, or promulgating laws by a legislature A legislature is an deliberative assembly, assembly with the authority to make laws for a Polity, political entity such as a Sovereign st ...
.
Jeremy Bentham Jeremy Bentham (; 15 February 1748 ld Style and New Style dates, O.S. 4 February 1747– 6 June 1832) was an English philosopher, jurist, and social reformer regarded as the founder of modern utilitarianism. Bentham defined as the "fundam ...
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 (British political party), Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Bo ...
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 In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the Post-classical, ...
, Blackstone opined:


Use in fiction

In the novel '' Joan and Peter'' (1918) by H. G. Wells, Peter's parents die in a sailing accident. As it is not known which parent dies first, a legal fiction is applied maintaining that the husband, being a man and therefore stronger, lived longer which results in the father's
will Will may refer to: Common meanings * Will and testament A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate (law), estate) is to be distributed after their death and as to which ...
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, calle ...
. 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'' (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 (writer), Mike Ashley ...
, 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 List of Latin phrases, Latin phrase meaning literally 'to this'. In English, it typically signifies a solution for a specific purpose, problem, or task rather than a Generalization, generalized solution adaptable to collateral instan ...
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 Corporate personhood, separate leg ...
" 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, 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 In Hindu culture, the term gotra (Sanskrit: गोत्र) is considered to be equivalent to Lineage (anthropology), lineage. It broadly refers to people who are descendants in an unbroken male line from a common male ancestor or patriline. ...
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 religions, Abrahamic, monotheism, monotheistic, and ethnic religion comprising the collective religious, cultural, and legal tradition and civilization of the Jewish people. It has its roots ...
, it is forbidden to own any ''
chametz ''Chametz'' (also ''chometz'', ', ''ḥameṣ'', ''ḥameç'' and other spellings Transliteration, transliterated from he, חָמֵץ / חמץ; ) are foods with leavening agents that are forbidden on the Jewish holiday of Passover. According to ...
'' (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 List of Latin phrases, Latin phrase meaning literally 'to this'. In English, it typically signifies a solution for a specific purpose, problem, or task rather than a Generalization, generalized solution adaptable to collateral instan ...
'' * Copyright traps * ''
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 character (arts), individuals, events, or setting (narrative), places that are imagination, imaginary, or in ways that are imaginary. Fictional portrayals are thus inconsistent ...


Notes


References


External links

* {{DEFAULTSORT:Legal Fiction *