When a court adopts a legal fiction, it starts either from a hypothesis based on the information available in a case, or from a fact to facilitate the hearing of the case. Sometimes the statement is not true, but it is believed to be true for the purposes of the court. People have the opportunity to question this assumption if they believe it would lead to a miscarriage of justice. Legal fictions are different from legal presumptions that assume a specific fact, such as the presumption of legitimacy, until proven otherwise. On the other hand, a legal fiction can be seen in laws that recognize “virgin birth,” meaning that a child born to a single mother has no genetic, biological, or psychological father. They differ from hypothetical examples such as the “reasonable person,” which serve as tools for the court to express its reasoning. [clarification needed] They also differ 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. 8 onlinelaw.wustl.edu/blog/legal-english-legal-fiction/ I thought the example of adoption was pretty good. In reality, the child`s biological parents are his biological parents. But for an adoption to really work, the court must use a legal fiction that the parents are strangers. Imagine if both the biological and adoptive parents had parental rights over the child! That would be a waste! “Legal fiction is fiction that is not real reality and can be recognized and accepted as reality by the courts.
Therefore, in the case of legal fiction, the court believes something that does not exist in reality. It is nothing more than a presumption of the existence of a condition that does not exist in reality. The consequence of such a legal fiction is that a position that we would not otherwise be able to obtain is deemed to have been obtained in the circumstances. In H. G. Wells` novel Joan and Peter (1918), Peter`s parents die in a shipping accident. Since it is not known which parent dies first, a legal fiction is applied, which asserts that the husband, who was a man and therefore stronger, lived longer. This decision leads to the fact that the father`s will determines Peter`s legal guardian. Later in the novel, however, a witness to the accident explains that he sees the mother wavering some time after her father`s disappearance, and so the legal fiction is overturned and the mother`s will is followed, giving Peter a new legal guardian.
Wells was wrong about English law, which instead assumes that the elderly person died first. I think the idea of a legal fiction in terms of dealing with a will is quite interesting. I don`t know how you would make that decision if the couple died at the same time and you couldn`t know who actually died first. So: “In what is certainly false, we have fiction, in what is not certainly true, we have presumption.” In ancient Rome, where every family needed a male heir, the absence of such an heir was overcome by the legal fiction of adoption. In England, when the courts dealing with civil cases were full, the Court of Queen`s Bench (or King`s) Bench, a criminal court, could shoulder part of the burden by claiming that the accused had been arrested and imprisoned in a simple civil trial. 28 www.lawctopus.com/academike/concept-separate-legal-entity-light-corporations/ Thus, through the fiction of the law, it has been assumed that every man knows the law of the soil. Even if someone does not know the law of the land, they will have to face the consequences. It is not even possible for lawyers to remember all the legal provisions. A classic example of legal fiction is that English courts (which have no legislative power, but have nevertheless developed most of the common law) do not “create” a new law, but simply “explain” the common law that has existed since time immemorial. [2] The term “legal fiction” should not be confused with the term “presumptions”. In Act II, scene 1 of Gilbert and Sullivan`s Gondoliers, Giuseppe Palmieri (who, with his brother Marco, is king of Barataria) asks that he and his brother also be recognized individually so that they each receive individual portions of food, as they have “two independent appetites”. However, it is rejected by the court (composed of other gondoliers) because the common rule”.
is a legal fiction, and legal fictions are solemn things. [9] In Hope Mirrlees` novel Lud-in-the-Mist (1926), the concept of legal fiction as a secular substitute for spiritual mysteries and magical illusions is a central theme. The legal fictions in the novel refer to fairy fruit, the mention of which is taboo, as silk cloth woven so that the law can regulate them; and declaring members of the country`s Senate “dead in the eyes of the law” to remove them from office as senators for life. In State Of Andhra Pradesh v. K.V.L. Narsimha Rao, the Supreme Court had occasion to explain the meaning of the term “legal fiction” when it was observed: 9 Dr. N.V. Pranjpe: Studies in Jurisprudence and Legal Theory, pg.223, 8th edition In my view, a close connection between minority report ideas and legal fictions comes from the fact that both do not. Both ideas reject external perspectives in favor of stock stories that create ideas of right and wrong, right and wrong.
Legal fictions prevent an in-depth analysis of other possibilities that might prevent the humanitarian element of law from being passed in favour of scientific truth. The minority report does so in the same way, but in a very extreme way; It presents the idea that there might even be an idea of an alternative future and invites the viewer to question it. 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 a child the right to have both genetic parents easily identified), identify legal fictions as “scaffolding around a building under construction.” [6] 21 definitions.uslegal.com/r/reasonable-prudent-man/ For example: idols and corporations have their personalities based on dogmatic fictions. 2. Dogmatic fictions do not summarize law under the guise of the old, as do old historical fictions. They provide only convenience for recognized and established teachings.
These are legal fictions: Artificial person. Now, why is it in the law? How is it legal? Not everything that is legal is legal. Sir Henry Maine pointed out that fiction played a considerable role in defining law in ancient times, but today, with the growth of the system of legislative change, fiction has lost its value. Despite the opposite, Sir Frederick Pollock does not support this perspective and acknowledges that fiction is still relevant to the law today. The theory of constructive trust and ownership are modern illustrations of legal fiction. A legal fiction is therefore a presumption opposed to the truth, when it is indeed possible to advance justice. The very good example of legal fiction is the famous saying that judges do not make laws, but only explain and interpret them. Henry Maine argued that legal fictions seem to be a clever outgrowth of the law that the legislation was supposed to suppress. Jeremy Bentham has sharply criticized the notion of legal fiction, saying that “fiction is to the law what fraud is to commerce.” [4] [5] Almost all legal fictions can be expressed in fact. Therefore, the fiction that a corporation is a person distinct from its members for many purposes amounts to saying that the law treats the group as a unit for those purposes and does not take into account the individual members of the group as such at this time. Legal fictions date back to Roman law, where the praetor approves a false procedural statement known as a fictio in order to extend a right of action beyond its intended scope. English courts have also used legal fictions.
Legal fictions are one of the most characteristic features of the common law. The separate legal entity is one of the characteristics of the company. A separate legal entity means that the corporation has the separate entity from its members. A group of shareholders forms a corporation to sue the company under a new name that is in no way affiliated with any of the shareholders. The law would not be able to guide ordinary people, and perhaps not be able to perform a number of its other essential functions. Legal fictions may be small curiosities of law, but the fact that they exist and are understood as fictional suggests that law does not consist exclusively of concepts from art. Maybe so, and maybe it`s the discourse about legal fiction that`s wrong. It is said that all fiction must be shaped according to the rules of law and that all legal fiction must have justice for its subject. In order to prevent their harmful effects, they must not be carried beyond the reasons that introduced them. Fiction abounds throughout the law. When successful, these fictions typically serve one of three purposes: promoting fairness, increasing efficiency, or creating a standard for measuring litigants` conduct. A legal fiction somehow sounds like it`s a bad thing.
There should be no “fictions” in court! But I can see that it actually helps speed up some legal processes.