Legal fiction
A legal 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 by employed by the courts[1] or found in legislation.
Not to be confused with legal drama, legal thriller, or police procedural.
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.
The term legal 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 a building under construction".[4]
Common law examples[edit]
Adoption[edit]
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.
Australian examples[edit]
Mabo v Queensland[edit]
Some legal fictions have been invalidated due to increased historical knowledge and changes in social norms, as in the Mabo case, where the High Court of Australia rejected previous authorities that held that Indigenous Australians were too "low in the scale of social organization" at the time of British settlement to be capable of holding title to land.[9][10][11]
Use in fiction[edit]
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 determining Peter's legal 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.
In Act II, Scene 1 of Gilbert and Sullivan's The 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."[12]
In the novel Lud-in-the-Mist (1926) by Hope 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 as ad 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 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:
Codified legal fictions[edit]
Some legal fictions are actually codified in statutory or regulatory law. Person having ordinary skill in the art[13] are examples of such legal fictions.
