Gourt Home::Gourt :: Legal fiction
In the common law tradition, legal fictions are suppositions of fact taken to be true by the courts of law, but which are not necessarily true. They typically are done to evade archaic rules of procedure or to extend the jurisdiction of the courts in ways that were considered useful, but not strictly authorized by the old rule.
Another way of understanding a legal fiction is to say that it is a technique somebody uses in order to benefit from a legal rule which wasn't necessarily designed to be used in that way. For example, the UK Parliament's rules state that a person cannot resign from office, but they also state that a Member of Parliament cannot be in a paid office of the crown. The second rule is used to circumvent the first.
Legal fictions were also used by courts before handling offences existed. Where A sells stolen property to B, B can now be accused of handling stolen property. However, in the past, legal fiction was used to say that as A didn't have the power to sell the property to B, B stole the property again, and was therefore guilty of theft himself.
Although it may sound negative, the term "legal fiction" is not usually used in a pejorative way.
Examples
Jurisdiction of the Exchequer
A simple legal fiction extended the jurisdiction of the court of the Exchequer, in England, to all manner of cases involving debt. The Exchequer was originally a court whose specialized jurisdiction involved taxes and other obligations to The Crown, and which had only slight jurisdiction over private matters between litigants. The Exchequer therefore had a much lighter caseload than the King's Bench and other courts in England. Those who commenced an action in the Exchequer on a debt, therefore, had to plead that they owed money to the King, but that they could not pay it because the debtor wrongfully withheld payment. It came to pass that the debt owed to the King became a legal fiction, in that the debtor was not entitled to controvert this allegation, be it true or false, in order to oust the Exchequer from jurisdiction. By this artifice the creditor could bring his case in a court with a much less crowded docket.Doctrine of survival
Another is the doctrine of survival, where if two people die at the same time (or in a way that it's impossible to tell which died first) the older one of the two is taken to have died first.Ejectment
A similar but more complicated legal fiction involved pleadings in the common law 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 battel, which is to say, trial by combat, a judicially sanctioned duel. Most plaintiffs 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 by the plaintiff, but that he was ousted by Richard Roe, who claimed a contrary lease from by 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.Resignation from Parliament
Another legal fiction involves resignation from Parliament. 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 weaker, and service was sometimes considered a resented duty rather than a position of power and honour. However, an MP who accepts an "office of profit" from the Crown was obliged to leave his post, it being feared that his independence was compromised if he be 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", an obsolescent office of negligible duties and scant profit, but an office in the King's gift nonetheless. The first MP to avail himself of the Chiltern Hundreds to leave Parliament was John Pitt in 1751.Corporate personality
A rather significant legal fiction that is still in use today is corporate personhood (see corporation). In the common law tradition, only a 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/shareholders enjoyed limited liability—the owners were 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 the shareholders were not liable for the debts of the corporation by statute. 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.The dying out of fictions
Legal fictions are fewer in number than they used to be. The elaborate pantomime about poor Doe left homeless by Roe has been abolished by statute 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). 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.
Philosophical arguments
Some have argued that legal fictions seem a baroque excrescence on the law that ought to be excised 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 consequences. Using the metaphor of an ancient castle, Blackstone invoked the metaphor that:
- We inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless. The interior apartments, now converted into rooms of convenience, are chearful and commodious, though their approaches are winding and difficult.
"Legal fiction"