“. fictions used to increase the jurisdiction of the courts; fictions aimed at avoiding cumbersome and archaic forms of action; (and) fictions that contain a false presumption of fact in order to prolong the remedy that the Court might grant. “The European colonization in Australia in 1788 as (empty land) was a legal fiction because it removed the fact that the land was inhabited. by Indigenous Peoples. The law is rich in fiction. That a succession is in limbo; the doctrine of the remitant, according to which a party who has been excluded from his property and who subsequently acquires an erroneous title is transferred to his former title of cap; that something that is done today is considered by the theory of relations to have been done at an earlier point in time; that because one thing is proven, another is assumed to be true, which is the case in all hypotheses; The fact that the heir, the executor and the administrator are represented in the place of the deceased are all fictions of the law. “Our various introductions by John Doe and Richard Roe; our solemn trial after Hugh Hunt`s Disseisin; our occasional loss and the discovery of a ship (which never went to Europe) in the parish of St. Mary Le Bow, in the Municipality of Cheap; We try to make a will valid by an imaginary stake of five books; our conception and compass of the king`s death by giving information that can defeat an attack on an enemy`s colony in the antipodes; our task of choosing a bag or forging a note with strength and weapons; that he failed to repair a bridge against the king`s peace, his crown and dignity are circumstances that, in themselves, would give an impression of an unfavorable nature in terms of the wisdom of our jurisprudence. In the second act, scene 1 of Gilbert and Sullivan`s Gondoliers, Giuseppe Palmieri (who serves as king of Barataria with his brother Marco) asks that he and his brother also be recognized individually so that they can each receive individual portions of food, as they have “two independent appetites.” However, it is rejected by the court (composed of colleagues of Gondolieri) because of the common rule.” is a legal fiction, and legal fictions are solemn things. [9] An example of legal fiction occurs in adoption. Once an adoption or adoption order (or similar court order) has been made, one or both biological (or natural) parents become a legal alien of the child who is no longer legally related to the child and has no rights towards the child. Conversely, the adoptive parent or parents are legally considered to be the parents of the adopted child. A new birth certificate that reflects this is issued, which is a legal fiction. [7] The Middlesex Bill was a legal fiction used by the Court of King`s Bench to obtain jurisdiction over matters that traditionally fell within the jurisdiction of the Court of Common Pleas.
Echoing the remaining criminal jurisdiction of the King`s Bench over Middlesex County, the Bill allowed for cases traditionally under the jurisdiction of other common law courts to be taken over by claiming that the defendant had committed an intrusion into Middlesex. Once the defendant was taken into custody, the charge of trespassing was tacitly dropped and other claims (such as debt or refusal) were replaced. Legal fiction, a rule that assumes as true something that is clearly false. Fiction is often used to circumvent provisions of constitutions and legal systems that legislators are reluctant to change or impose certain restrictions. Thus, if a legislature does not have the legal power to sit beyond a certain midnight, but there are still five hours of work to be done, it is easier to go back from time to time than to change the law or the constitution. “A legal fiction. is an assumption of a possible thing as a fact that is not literally true, for the promotion of justice, and that the law will not refute as to the purpose for which the hypothesis is made.: The term “legal fiction” is sometimes used pejoratively. Jeremy Bentham was a famous historical critic of legal fiction. [4] [5] Proponents of legal fictions, particularly their historical use (for example, before DNA evidence could give each child the right to have both genetic parents easily determined), identify legal fictions as “scaffolding around a building under construction.” [6] Henry Maine argued that legal fictions appear to be an elaborate outgrowth of the law that should be eliminated by law. Jeremy Bentham strongly criticised the notion of legal fiction, saying that “fiction for the law is what fraud is to trade”.
[4] [5] In England, a simple legal fiction has extended the jurisdiction of the Treasury Court to all types of debt-related cases. The Consolidated Revenue Fund was originally a court with specialized jurisdiction over taxes and other obligations to the Crown. The Court had little jurisdiction in private matters between the parties to the proceedings. The Treasury therefore had a much lower workload than the King`s Bench and other courts in England. Litigants who had brought an action before the Exchequer Court concerning a debt had therefore had to rely on the fact that they owed the king money that they could not pay because their debtor had unduly withheld payment from them. It happened that the debt owed to the king became a legal fiction in the sense that the original debtor did not have the right to refute this request in order to oust the Treasury from the jurisdiction. By applying this trick against the debtor, the party to the proceedings could take his case to a court with a much lower procedural burden. Legal fictions derive their legitimacy from tradition and precedents rather than from the formal status of a source of law. Historically, many legal fictions have been created as ad hoc remedies that have been falsified to deal with a difficult or unforeseen situation. Over the centuries, conventions and practices have given a certain degree of stability to both the institution of legal fiction and specific legal fictions (such as adoptions and corporate personality) that have been repeatedly cited in precedents.
Although the judiciary retains its discretion in the use of legal fictions, some general suggestions about the appropriateness of the use of legal fictions could be expressed as follows: for example, if a court cannot exercise its personal jurisdiction over a defendant, it may place that defendant under its jurisdiction almost in rem under subtype 2. The latter is a form of personal jurisdiction that uses a defendant`s property to satisfy a claim against him and is a legal fiction because it treats the owner of the property as a defendant, even if the subject matter of the lawsuit is technically the property itself. Legal fictions differ from legal presumptions based on a particular fact until proven otherwise, such as the presumption of legitimacy. In contrast, a legal fiction can be seen in laws that recognize “virgin birth,” that is, a child born to a single mother has no genetic, biological, or psychological father. They are different from hypothetical examples such as the “reasonable person,” which serve as tools for the court to express its reasoning. [Clarification required] They are also different from legal principles that create a different legal state from the underlying facts, such as the personality of the company, although these are sometimes mistakenly called legal fictions. n. a presumption of fact assumed by a court for reasons of convenience, consistency or to obtain justice. There is an old saying: “Fiction is born of the law and not of fiction.” In the novel Lud-in-the-Mist (1926) by Hope Mirrlees, the concept of legal fiction as a secular substitute for spiritual mysteries and magical illusions is a central theme. Among the legal fictions of the novel is the reference to fairy fruits, the mention of which is taboo, as a woven silk fabric so that the law can regulate them; and declare members of the country`s Senate “dead in the eyes of the law” in order to remove them from office, because senators serve for life. In ancient Rome, where every family needed a male heir, the absence of such an heir was overcome by the legal fiction of adoption.