Legal fiction

fact assumed or created by courts which is then used in order to apply a legal rule

A legal fiction is a fact assumed or created by courts 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" who has many of the same legal rights and responsibilities as a natural person. Legal fictions are mostly encountered under common law systems.

Quotes edit

  • If this statement by Judge Cooley is true, and the authority for it is unimpeachable, then the theory that the Constitution is a written document is a legal fiction. The idea that it can be understood by a study of its language and the history of its past development is equally mythical. It is what the Government and the people who count in public affairs recognize and respect as such, what they think it is. More than this. It is not merely what it has been, or what it is today. It is always becoming something else and those who criticize it and the acts done under it, as well as those who praise, help to make it what it will be tomorrow.
    • Charles A. Beard and William Beard, The American Leviathan: The Republic in the Machine Age (1931), p. 39.
  • The corporation is not a person; it is a legal fiction backed up by guns and police and jail cells and taxing authorities and the regulators called government.
    • Jerry Brown, on Corporations and Jobs, We the People Radio Network archives, December 1995/January 1996.
  • It is a fiction, a shade, a nonentity, but a reality for legal purposes. A corporation aggregate is only in abstracto—it is invisible, immortal, and rests only in intendment and consideration of the law.
    • Edward Coke, Case of Sutton's Hospital (1612), 5 Rep. 303; 10 Rep. 32 b.
  • Law makes long spokes of the short stakes of men.
    • William Empson, "Legal Fiction" (1928), line 1; cited from John Haffenden (ed.) The Complete Poems (London: Allen Lane, 2000) p. 37.
  • Paternity may be a legal fiction. Who is the father of any son that any son should love him or he any son?
  • It is unconscionable in a defendant, to take advantage of the apices litigandi, to turn a plaintiff round, and make him pay costs where his demand is just. Against such objections every possible presumption ought to be made, which ingenuity can suggest. How disgraceful then would it be to the administration of justice to allow Chicane to obstruct Bight; by the help of a legal fiction contrary to the help of the fact!

The Dictionary of Legal Quotations (1904) edit

Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 92-93.
  • A fiction of law shall never be contradicted so as to defeat the end for which it was invented, but for every other purpose it may be contradicted.
  • Fictions of law must be consistent with justice.
  • Fictions are allowed against all the King's subjects for the furtherance, but never for the hindrance, of justice.
  • No fiction shall extend to work an injury, its proper operation being to prevent a mischief or remedy an inconvenience which might result from the general rule of law.
    • 3 Black's Commentaries (21 ed.).
  • In fictione juris semper cequitas existit: A legal fiction is always consistent with Equity.
    • 11 Rep. 51.

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