Legal fiction
Encyclopedia
A legal fiction is a fact assumed or created by court
s which is then used in order to apply a legal rule which was not necessarily designed to be used in that way. For example, the rules of the United Kingdom
Houses of Parliament specify that a Member of Parliament
cannot resign from office
, but since the law also states that a Member of Parliament who is appointed to a paid office of the Crown must either step down or stand for re-election, the effect of a resignation can be accomplished by appointment to such an office
. The second rule is used to circumvent the first rule.
Legal fictions may be counterintuitive in the sense that one might not normally view a certain fact or idea as established in the course of everyday life, but they are preserved to advance public policy and preserve the rights of certain individuals and institutions. A common example of a legal fiction is a corporation
, which is regarded in many jurisdictions as a 'person' that has many of the same legal rights and responsibilities as a natural person.
Legal fictions are mostly encountered under common law
systems.
The term "legal fiction" is not usually used in a pejorative way, and has been likened to scaffolding around a building under construction.
. Once an Order or Judgment of Adoption (or similar decree from a court) is entered, one or both biological (or natural) parents becomes a legal stranger to the child, legally no longer related to the child and with no rights related to it. Conversely, the adoptive parent(s) are legally considered to be the parent(s) of the adopted child; a new birth certificate reflecting this is issued. The new birth certificate is a legal fiction.
). In the common law tradition, only a natural person could sue or be sued. This was not a problem in the era before the Industrial Revolution
, when the typical business venture was either a sole proprietorship
or partnership
; the owners were simply liable for the debts of the business. A feature of the corporation, however, is that the owners or shareholders enjoy limited liability
: they are not liable for the debts of the company. In early lawsuits for breach of contract
, the corporate defendants argued that they could not be sued as they were not persons; if this argument were to be accepted, the plaintiffs would be without recourse, since by statute the shareholders were not liable for the debts of the corporation. To resolve the issue, courts created an elegant solution: a corporation is a person, and could therefore sue and be sued, and thus held accountable for its debts. This ensured that creditors would be able to seek relief in the courts should the corporation default on its obligations, encouraging banks to extend credit
to the corporation. This simple fiction enabled corporations to acquire wealth, expand, and become the preferred organizational form for businesses of all sizes. Corporate personhood has come under criticism recently, as courts have extended other rights to the corporation beyond those necessary to ensure their liability for debts. Other commentators argue that corporate personhood is not a fiction anymore; it simply means that for some legal purposes, "person" has now a wider meaning than it had before and it still has in non-legal uses.
In jurisdictions using this fiction, it is important that the legal draftsman distinguishes between a person and a natural person (or individual).
The central idea of this test is called the "brain theory" of the corporation. The other test involves primarily the “locus” of one or a number of activities of the corporation. This is the “locus theory”. Modern corporate jurisprudence takes into consideration six factors in determining the nationality of a corporation:
A company incorporated under a particular national statute may acquire a foreign residence so as to be liable to be sued in a foreign country.
The place of registration of a company, like the birthplace of an individual, is not conclusive on the question of residence. Section 6 (3) of the Indian Income Tax Act, 1961 provides an alternative easy test for determination of residence of a company: "A company is said to be resident in India in any previous year, if it is an Indian Company or during that year, the control and management of its affairs is situated wholly in India." Whether a company fits this description is a pure question of fact.
Similarly, in North American broadcasting, a radio or television station has a legal city of license
which does not necessarily correspond to the location of its studios or the market that the station's programming is intended to serve.
, many jurisdictions have abolished the doctrine of survival by statute; see Uniform Simultaneous Death Act
.
action of ejectment
by which title to real property
was tried. The common law
had a procedure whereby title to land could be put in direct issue, called the writ
of right. One inconvenience of this procedure, though, was that the defendant at his option could insist on trial by wager of battle, that is trial by combat
, a judicially sanctioned duel
. Most plaintiff
s were unwilling to stake life and limb on the hazard of the battle, so the procedure fell into disuse. Rather, an elaborate tale was told in the pleadings, about how one John Doe
leased land from the plaintiff, but was ousted by Richard Roe, who claimed a contrary lease from the defendant
. These events, if true, led to the assize of novel disseisin, later called the mixed action in ejectment
, a procedure in which title could ultimately be determined, but which led instead to trial
by jury
. This is the origin of the names John Doe, Richard Roe, and so forth, for anonymous
parties. The fiction of Doe, Roe, and the leases was not challenged by the parties unless they wished to stake their life and safety on a trial by combat. Wager of battle was in fact not abolished in England
until 1819, though it fell into disuse by the end of the thirteenth century.
a simple legal fiction extended the jurisdiction of the Court of the Exchequer
to all types of cases involving debt
. The Exchequer was originally a court that had a specialized jurisdiction involving tax
es and other obligations to The Crown
. The Court had only slight jurisdiction in regards to private matters between litigants. The Exchequer therefore had a much lighter caseload than the King's Bench
and other courts in England. Litigants who commenced an action in the Exchequer Court on a debt, therefore, had to plead that they owed money to the King
, which they could not pay because their debtor had in turn wrongfully withheld payment to them. It came to pass that 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. The litigant, by using this artifice against the debtor, could bring his case into a court with a substantially lesser caseload.
in the United Kingdom
. In 1623 a rule was declared that said that Members of Parliament
were given a trust
to represent their constituencies, and therefore were not at liberty to resign them. In those days, Parliament was relatively weak in comparison to the 21st century, and service was sometimes considered a resented duty rather than a position of power and honour. 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, it being feared that his independence was compromised if he were in the King's pay. Therefore, 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 nonetheless. 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 has been retained to enable MPs to resign.
or by reforms in civil procedure
in every common law jurisdiction. The business about 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
). The doctrine of survival, although still existing in England, has been abolished in many U.S. state
s by the Uniform Simultaneous Death Act
. Also, legal fictions have been invalidated as being contrary to public policy
, as, for example, in the High Court of Australia
's rejection in the Mabo
cases of the doctrine of terra nullius
, the legal fiction that there were no property rights in land in Australia
before the time of European colonization
.
argued that legal fictions seem an ornate outgrowth of the law that ought to be removed by legislation
. This idea occurs to many who first encounter the notion that the law entertains fictions. Jeremy Bentham
sharply criticised the notion of legal fictions, saying that "fictions are to law what fraud is to trade."
In their defence, most legal fictions were harmless vestiges of history
whose traces may be worth preserving for their own sake. William Blackstone
defended them, observing that legislation is never free from the iron law of unintended consequence
s. Using the metaphor of an ancient castle
, Blackstone opined:
, 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. This decision results in the father's will
determining Peter's legal guardian
. However, 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 fact in error as to the English law, which presumes that the older person died first; the core plot would remain unchanged if Peter's father was younger than his mother.
In Gilbert and Sullivan
's The Gondoliers
, Giuseppe Palmieri (who jointly serves as King of Barataria with his brother Marco) requests that he and his brother be recognized individually. He is, however, turned down by the Council because the joint rule is a legal fiction.
Legal fiction has never been regarded as a source of law. Basically it was an ad hoc remedy forged to meet a harsh or an unforeseen situation. But conventions and practices over the centuries have imparted a degree of stability to the institution. It is now possible to express its ambit and sweep through some formulated propositions.
Court
A court is a form of tribunal, often a governmental 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 with the rule of law...
s which is then used in order to apply a legal rule which was not necessarily designed to be used in that way. For example, the rules of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
Houses of Parliament specify that a Member of Parliament
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
cannot resign from office
Resignation from the British House of Commons
Members of Parliament sitting in the House of Commons in the United Kingdom are technically forbidden to resign. To circumvent this prohibition, a legal fiction is used...
, but since the law also states that a Member of Parliament who is appointed to a paid office of the Crown must either step down or stand for re-election, the effect of a resignation can be accomplished by appointment to such an office
Chiltern Hundreds
Appointment to the office of Crown Steward and Bailiff of the three Chiltern Hundreds of Stoke, Desborough and Burnham is a sinecure appointment which is used as a device allowing a Member of the United Kingdom Parliament to resign his or her seat...
. The second rule is used to circumvent the first rule.
Legal fictions may be counterintuitive in the sense that one might not normally view a certain fact or idea as established in the course of everyday life, but they are preserved to advance public policy and preserve the rights of certain individuals and institutions. A common example of a legal fiction is a corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
, which is regarded in many jurisdictions as a 'person' that has many of the same legal rights and responsibilities as a natural person.
Legal fictions are mostly encountered under common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
systems.
The term "legal fiction" is not usually used in a pejorative way, and has been likened to scaffolding around a building under construction.
Adoption
One example of a legal fiction occurs in adoptionAdoption
Adoption is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents...
. Once an Order or Judgment of Adoption (or similar decree from a court) is entered, one or both biological (or natural) parents becomes a legal stranger to the child, legally no longer related to the child and with no rights related to it. Conversely, the adoptive parent(s) are legally considered to be the parent(s) of the adopted child; a new birth certificate reflecting this is issued. The new birth certificate is a legal fiction.
Corporate personhood
A rather significant legal fiction that is still in use today is corporate personhood (see corporationCorporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
). In the common law tradition, only a natural person could sue or be sued. This was not a problem in the era before the Industrial Revolution
Industrial Revolution
The Industrial Revolution was a period from the 18th to the 19th century where major changes in agriculture, manufacturing, mining, transportation, and technology had a profound effect on the social, economic and cultural conditions of the times...
, when the typical business venture was either a sole proprietorship
Sole proprietorship
A sole proprietorship, also known as the sole trader or simply a proprietorship, is a type of business entity that is owned and run by one individual and in which there is no legal distinction between the owner and the business. The owner receives all profits and has unlimited responsibility for...
or partnership
Partnership
A partnership is an arrangement where parties agree to cooperate to advance their mutual interests.Since humans are social beings, partnerships between individuals, businesses, interest-based organizations, schools, governments, and varied combinations thereof, have always been and remain commonplace...
; the owners were simply liable for the debts of the business. A feature of the corporation, however, is that the owners or shareholders enjoy limited liability
Limited liability
Limited liability is a concept where by a person's financial liability is limited to a fixed sum, most commonly the value of a person's investment in a company or partnership with limited liability. If a company with limited liability is sued, then the plaintiffs are suing the company, not its...
: they are not liable for the debts of the company. In early lawsuits for breach of contract
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
, the corporate defendants argued that they could not be sued as they were not persons; if this argument were to be accepted, the plaintiffs would be without recourse, since by statute the shareholders were not liable for the debts of the corporation. To resolve the issue, courts created an elegant solution: a corporation is a person, and could therefore sue and be sued, and thus held accountable for its debts. This ensured that creditors would be able to seek relief in the courts should the corporation default on its obligations, encouraging banks to extend credit
Credit (finance)
Credit is the trust which allows one party to provide resources to another party where that second party does not reimburse the first party immediately , but instead arranges either to repay or return those resources at a later date. The resources provided may be financial Credit is the trust...
to the corporation. This simple fiction enabled corporations to acquire wealth, expand, and become the preferred organizational form for businesses of all sizes. Corporate personhood has come under criticism recently, as courts have extended other rights to the corporation beyond those necessary to ensure their liability for debts. Other commentators argue that corporate personhood is not a fiction anymore; it simply means that for some legal purposes, "person" has now a wider meaning than it had before and it still has in non-legal uses.
In jurisdictions using this fiction, it is important that the legal draftsman distinguishes between a person and a natural person (or individual).
Enemy character of the corporation
The corporation is itself incapable of loyalty or enmity. In Daimler Co. v. Continental Tyre and Rubber Co. it was observed: "I know not from what human beings that the character should be derived if resort is not had to the predominant character of its shareholders." However, it is not the shareholders that are always the decisive factor. Sometimes the human beings from whom the character of enmity is to be inferred are to be found in the members of another corporation holding all or practically all the shares of that corporation; sometimes the dominating persons are outsiders controlling the company by nominees.Nationality of corporation
The test of nationality of a corporation is dictated by practical needs. Neither the nationality of the shareholders nor the country in which the corporation was incorporated determines its nationality. A corporation incorporated in India can assume "enemy character" if the persons in de facto control of its affairs are "alien enemies" or are residing in enemy territory or, wherever residing, are acting under the control of enemies.The central idea of this test is called the "brain theory" of the corporation. The other test involves primarily the “locus” of one or a number of activities of the corporation. This is the “locus theory”. Modern corporate jurisprudence takes into consideration six factors in determining the nationality of a corporation:
- the state of incorporation
- the principal seat of business
- nationality of the shareholders
- the nationality of overall investment
- the nationality of the management
- the persons controlling the business of corporation
A company incorporated under a particular national statute may acquire a foreign residence so as to be liable to be sued in a foreign country.
Residence
It is juristically difficult to reconcile to the notion of a company with different domiciles in different countries. Although generally a company is said to reside at the place of incorporation or at the place of its registered office, that does not rule out residence elsewhere. Therefore, going by this logic, the company may have multiple residence. Having an office or property in a country does not necessarily constitute residence in that country.The place of registration of a company, like the birthplace of an individual, is not conclusive on the question of residence. Section 6 (3) of the Indian Income Tax Act, 1961 provides an alternative easy test for determination of residence of a company: "A company is said to be resident in India in any previous year, if it is an Indian Company or during that year, the control and management of its affairs is situated wholly in India." Whether a company fits this description is a pure question of fact.
Similarly, in North American broadcasting, a radio or television station has a legal city of license
City of license
A city of license or community of license, in American and Canadian broadcasting, is the community that a radio station or television station is officially licensed to serve by that country's broadcast regulator....
which does not necessarily correspond to the location of its studios or the market that the station's programming is intended to serve.
Doctrine of survival
The doctrine of survival is also an example of legal fiction. If two people die at the same time or in a manner that renders it impossible to tell who had died first, the older of the two is considered to have died first, subject to rebuttal by evidence demonstrating the actual order of death. In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, many jurisdictions have abolished the doctrine of survival by statute; see Uniform Simultaneous Death Act
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....
.
Ejectment
A similar albeit more complicated legal fiction involved pleadings in the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
action of ejectment
Ejectment
Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
by which title to real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
was tried. The common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
had a procedure whereby title to land could be put in direct issue, called the writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
of right. One inconvenience of this procedure, though, was that the defendant at his option could insist on trial by wager of battle, that is trial by combat
Trial by combat
Trial by combat 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 fight was proclaimed to be right. In essence, it is a judicially sanctioned duel...
, a judicially sanctioned duel
Duel
A duel is an arranged engagement in combat between two individuals, with matched weapons in accordance with agreed-upon rules.Duels in this form were chiefly practised in Early Modern Europe, with precedents in the medieval code of chivalry, and continued into the modern period especially among...
. Most plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
s were unwilling to stake life and limb on the hazard of the battle, so the procedure fell into disuse. Rather, an elaborate tale was told in the pleadings, about how one John Doe
John Doe
The name "John Doe" is used as a placeholder name in a legal action, case or discussion for a male party, whose true identity is unknown or must be withheld for legal reasons. The name is also used to refer to a male corpse or hospital patient whose identity is unknown...
leased land from the plaintiff, but was ousted by Richard Roe, who claimed a contrary lease from the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
. These events, if true, led to the assize of novel disseisin, later called the mixed action in ejectment
Ejectment
Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
, a procedure in which title could ultimately be determined, but which led instead to trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
by jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
. This is the origin of the names John Doe, Richard Roe, and so forth, for anonymous
Anonymity
Anonymity is derived from the Greek word ἀνωνυμία, anonymia, meaning "without a name" or "namelessness". In colloquial use, anonymity typically refers to the state of an individual's personal identity, or personally identifiable information, being publicly unknown.There are many reasons why a...
parties. The fiction of Doe, Roe, and the leases was not challenged by the parties unless they wished to stake their life and safety on a trial by combat. Wager of battle was in fact not abolished in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
until 1819, though it fell into disuse by the end of the thirteenth century.
Jurisdiction of the Exchequer
In EnglandEngland
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
a simple legal fiction extended the jurisdiction of the Court of the Exchequer
Exchequer of pleas
The Exchequer of Pleas or Court of Exchequer was a court that followed equity, a set of legal principles based on natural law, and common law, in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia during the 1190s, to sit as an...
to all types of cases involving debt
Debt
A debt is an obligation owed by one party to a second party, the creditor; usually this refers to assets granted by the creditor to the debtor, but the term can also be used metaphorically to cover moral obligations and other interactions not based on economic value.A debt is created when a...
. The Exchequer was originally a court that had a specialized jurisdiction involving tax
Tax
To tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
es and other obligations to The Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
. The Court had only slight jurisdiction in regards to private matters between litigants. The Exchequer therefore had a much lighter caseload than the King's Bench
King's Bench
The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...
and other courts in England. Litigants who commenced an action in the Exchequer Court on a debt, therefore, had to plead that they owed money to the King
Monarch
A monarch is the person who heads a monarchy. This is a form of government in which a state or polity is ruled or controlled by an individual who typically inherits the throne by birth and occasionally rules for life or until abdication...
, which they could not pay because their debtor had in turn wrongfully withheld payment to them. It came to pass that 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. The litigant, by using this artifice against the debtor, could bring his case into a court with a substantially lesser caseload.
Resignation from Parliament
Another legal fiction involves resignation from ParliamentParliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. In 1623 a rule was declared that said that Members of Parliament
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
were given a trust
Trust (sociology)
In a social context, trust has several connotations. Definitions of trust typically refer to a situation characterised by the following aspects: One party is willing to rely on the actions of another party ; the situation is directed to the future. In addition, the trustor abandons control over...
to represent their constituencies, and therefore were not at liberty to resign them. In those days, Parliament was relatively weak in comparison to the 21st century, and service was sometimes considered a resented duty rather than a position of power and honour. 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, it being feared that his independence was compromised if he were in the King's pay. Therefore, the device was invented that the MP who wished to quit applied to the King for the post of "steward of the Chiltern Hundreds
Chiltern Hundreds
Appointment to the office of Crown Steward and Bailiff of the three Chiltern Hundreds of Stoke, Desborough and Burnham is a sinecure appointment which is used as a device allowing a Member of the United Kingdom Parliament to resign his or her seat...
" or "Steward of the Manor of Northstead
Manor of Northstead
The Manor of Northstead was once a collection of fields and farms in the parish of Scalby in the North Riding of Yorkshire in England. By 1600, the manor house had fallen into disrepair and was occupied only by a shepherd. At present the Manor is part of the Barrowcliff area of the town of...
" with no duties or income, but legally an office of profit in the King's gift nonetheless. 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 has been retained to enable MPs to resign.
The dying out of fictions
Legal fictions are fewer than they once were. The elaborate fiction about poor Doe left homeless by Roe has been abolished by statuteStatute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
or by reforms in civil procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
in every common law jurisdiction. The business about Doe and Roe
John Doe
The name "John Doe" is used as a placeholder name in a legal action, case or discussion for a male party, whose true identity is unknown or must be withheld for legal reasons. The name is also used to refer to a male corpse or hospital patient whose identity is unknown...
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
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
). The doctrine of survival, although still existing in England, has been abolished in many U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
s by the Uniform Simultaneous Death Act
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....
. Also, legal fictions have been invalidated as being contrary to public policy
Public policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
, as, for example, in the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
's rejection in the Mabo
Mabo v Queensland
Mabo v Queensland was a landmark High Court of Australia decision recognising native title in Australia for the first time...
cases of the doctrine of terra nullius
Terra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
, the legal fiction that there were no property rights in land in Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
before the time of European colonization
Colonialism
Colonialism is the establishment, maintenance, acquisition and expansion of colonies in one territory by people from another territory. It is a process whereby the metropole claims sovereignty over the colony and the social structure, government, and economics of the colony are changed by...
.
Philosophical arguments
Henry MaineHenry James Sumner Maine
Sir Henry James Sumner Maine, KCSI , was an English comparative jurist and historian. He is famous for the thesis outlined in Ancient Law that law and society developed "from status to contract." According to the thesis, in the ancient world individuals were tightly bound by status to traditional...
argued that legal fictions seem an ornate outgrowth of the law that ought to be removed by legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
. This idea occurs to many who first encounter the notion that the law entertains fictions. Jeremy Bentham
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
sharply criticised the notion of legal fictions, saying that "fictions are to law what fraud is to trade."
In their defence, most legal fictions were harmless vestiges of history
History
History is the discovery, collection, organization, and presentation of information about past events. History can also mean the period of time after writing was invented. Scholars who write about history are called historians...
whose traces may be worth preserving for their own sake. William Blackstone
William Blackstone
Sir William Blackstone KC SL 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 in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
defended them, observing that legislation is never free from the iron law of unintended consequence
Unintended consequence
In the social sciences, unintended consequences are outcomes that are not the outcomes intended by a purposeful action. The concept has long existed but was named and popularised in the 20th century by American sociologist Robert K. Merton...
s. Using the metaphor of an ancient castle
Castle
A castle is a type of fortified structure built in Europe and the Middle East during the Middle Ages by European nobility. Scholars debate the scope of the word castle, but usually consider it to be the private fortified residence of a lord or noble...
, Blackstone opined:
Legal fictions used in fiction
In the novel Joan and Peter (1918) by H. G. WellsH. G. Wells
Herbert George Wells was an English author, now best known for his work in the science fiction genre. He was also a prolific writer in many other genres, including contemporary novels, history, politics and social commentary, even writing text books and rules for war games...
, 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. This decision results in the father's will
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
determining Peter's legal guardian
Legal guardian
A legal guardian is a person who has the legal authority to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability...
. However, 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 fact in error as to the English law, which presumes that the older person died first; the core plot would remain unchanged if Peter's father was younger than his mother.
In Gilbert and Sullivan
Gilbert and Sullivan
Gilbert and Sullivan refers to the Victorian-era theatrical partnership of the librettist W. S. Gilbert and the composer Arthur Sullivan . The two men collaborated on fourteen comic operas between 1871 and 1896, of which H.M.S...
's The Gondoliers
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 , closing on 30 June 1891...
, Giuseppe Palmieri (who jointly serves as King of Barataria with his brother Marco) requests that he and his brother be recognized individually. He is, however, turned down by the Council because the joint rule is a legal fiction.
Limitations on the use of legal fictions
Legal fiction has never been regarded as a source of law. Basically it was an ad hoc remedy forged to meet a harsh or an unforeseen situation. But conventions and practices over the centuries have imparted a degree of stability to the institution. It is now possible to express its ambit and sweep through some formulated propositions.
- 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 ultra viresUltra viresUltra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
borrowing by a limited company, since it would sanction the evasion of the rules of public policy forbidding an ultra vires 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 veilPiercing the corporate veilPiercing 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 or directors. Usually a corporation is treated as a separate legal person, which is solely responsible for the debts it...
” 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 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. [See Indian case Ganga v. Chandrabhagabai, 32 Bom.275.]
- There cannot be a fiction upon a fiction. For example, in Hindu lawHindu lawHindu law in its current usage refers to the system of personal laws applied to Hindus, especially in India...
, 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 gotraGotraIn the Hindu society, the term Gotra broadly refers to people who are descendants in an unbroken male line from a common male ancestor. Panini defines gotra for grammatical purposes as apatyam pautraprabhrti gotram , which means "the word gotra denotes the progeny beginning with the son's son"...
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.