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Alegal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts[1] or found in legislation.
Legal fictions are different fromlegal presumptions which assume a certain state of facts until the opposite is proved, such as thepresumption of legitimacy.
The termlegal fiction is sometimes used in a pejorative way.Jeremy Bentham was a famous historical critic of legal fictions.[2][3] Proponents of legal fictions, particularly of their use historically, identify legal fictions as "scaffolding around abuilding underconstruction".[4]
Child adoption is a legal fiction in that the adoptive parents become the legal parents, notwithstanding the lack of a biological relationship.[5] 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.[citation needed]
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.[6] This is in order to safeguard the operation of certain general legal rules, e.g. ininheritance law, where the younger person will inherit the older, hence being able to pass on. If a parent dies alongside a child, who has a child of their own, the rule of the elder predeceasing the child will allow the grandchild (typically) to inherit both, the parent directly and grandparent indirectly, with the parent instantaneously inheriting and then bequeathing.
The doctrine of survival, although still existing in England, has been abolished in manyU.S. states by theUniform Simultaneous Death Act.
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Thecommon law had a procedure whereby title to land could be put in direct issue, called the "writ of right". The defendant could insist on trial by "wager of battle", that istrial by combat, a judicially sanctionedduel. To avoid theplaintiff staking life and limb, a tale was told in the pleadings about how oneJohn Doe leased land from the plaintiff but was ousted by Richard Roe, who claimed a contrary lease from thedefendant. Such events would lead to the "mixed action inejectment", a procedure to determine title viatrial byjury. This is the origin of the namesJohn Doe andRichard Roe foranonymous 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 inEngland until 1819.
In cases where the court must determine whether a standard has been reached, such as whether a defendant has beennegligent, the court frequently uses the legal fiction of the "reasonable person".[note 1] 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 theHouse of Lords' decision inDPP v Camplin 1978.[7][note 2]
InEngland, a legal fiction extended the jurisdiction of the Court of theExchequer to all types of cases involvingdebt. The Exchequer had a much lighter caseload than theKing'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.
TheBill of Middlesex was a legal fiction used by theCourt of King's Bench to gain jurisdiction over cases traditionally in the remit of theCourt of Common Pleas. Hinging on the King's Bench's retaining criminal jurisdiction over the county ofMiddlesex, 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.
In 1623, a rule was declared thatMembers of Parliament were given atrust 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 their independence might be compromised if they were in the monarch's pay.
The device was invented that the MP who wished to quit applied to the Crown 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 monarch's gift. The first MP to avail themself of the Chiltern Hundreds to leave Parliament wasJohn Pitt in 1751. The requirement for ministerial re-election has been abolished, but the "Chiltern Hundreds" mechanism remains to enable MPs to resign.
Some legal fictions have been invalidated due to increased historical knowledge and changes in social norms, as in theMabo case, where theHigh Court of Australia rejected previous authorities that held thatIndigenous Australians were too "low in the scale of social organization" at the time of British settlement to be capable of holding title to land.[8][9][10]
William Blackstone defended legal fictions, observing that legislation is never free from the iron law ofunintended consequences.[citation needed] Using the metaphor of an ancientcastle, Blackstone opined:
We inherit an old Gothic castle, erected in the days ofchivalry, but fitted up for a modern inhabitant. Themoatedramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless. The interior apartments, now converted into rooms of convenience, are cheerful and commodious, though their approaches are winding and difficult.
Henry Maine, on the other hand, argued that legal fictions seem an ornate outgrowth of the law that ought to be removed bylegislation.Jeremy Bentham sharply criticised the notion of legal fictions, saying that "fictions are to law what fraud is to trade."[2][3]
In the novelJoan and Peter (1918) byH. 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'swill determining Peter'slegal guardian. 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.[dubious –discuss]
In Act II, Scene 1 ofGilbert and Sullivan'sThe Gondoliers, 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."[11]
In the novelLud-in-the-Mist (1926) byHope Mirrlees, 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.
Legal fictions derive their legitimacy from tradition and precedent, rather than formal standing as a source of law. Historically, many legal fictions were created asad hoc 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 andcorporate 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:
Some legal fictions are codified in statutory or regulatory law. Aperson having ordinary skill in the art[12] is an example of such a legal fiction.
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Media related toLegal fictions at Wikimedia Commons
