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From Wikipedia, the free encyclopedia

A legal fiction is a fact assumed or created by courts,[1] which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England.

Development of the concept

A legal fiction typically allows the court to ignore a fact that would prevent it from exercising its jurisdiction by simply assuming that the fact is different. In cases where the court must determine whether a standard has been reached, such as whether a defendant has been  negligent, the court frequently uses the legal fiction of the "reasonable man".[note 1] This is known as the "objective test", and is far more common than the "subjective test" where the court seeks the viewpoint of the parties (or "subjects"). Sometimes, the court may apply a "mixed test", as in the House of Lords' decision in DPP v Camplin 1978.[2][note 2]

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. A legal fiction, by contrast, can be seen in laws recognizing "virgin birth"[citation needed], i.e., that a child born to an unmarried 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 needed] They are also different from legal principles which create a legal state of affairs that is different from the underlying facts, such as corporate personhood although these are sometimes wrongly[citation needed] called legal fictions.

The term legal fiction is sometimes used in a pejorative way. Jeremy Bentham was a famous historical critic of legal fictions.[3][4] Proponents of legal fictions, particularly their use historically (for example, before DNA evidence could give every child the right to have both genetic parents determined easily), identify legal fictions as "scaffolding around a building under construction".[5]


One example of a legal fiction is that the English courts (which have no legislative power, but have nevertheless developed the bulk of the common law) do not "create" new law but merely "declare" the common law that has existed since time immemorial.[6]


One example of a legal fiction occurs in adoption. Once an order or judgment of adoption (or similar decree from a court) is entered, one or both biological (or natural) parents becomes a legal stranger to the child, legally no longer related to the child and with no rights related to the child. Conversely, the adoptive parent or parents are legally considered to be parents of the adopted child. A new birth certificate reflecting this is issued, which is a legal fiction.[7]

Doctrine of survival

The doctrine of survival is also an example of legal fiction. If two people die within a brief period of time or in a manner that renders it impossible to tell who had died first, when legally material to inheritance the older of the two is considered to have died first, subject to rebuttal by evidence demonstrating the actual order of death.[8]


A similar albeit 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 battle", that is 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 from the plaintiff but was ousted by Richard Roe, who claimed a contrary lease from 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.

Jurisdiction of the Exchequer

In England a simple legal fiction extended the jurisdiction of the Court of the Exchequer to all types of cases involving debt. The Exchequer was originally a court that had a specialized jurisdiction involving taxes and other obligations to The Crown. The Court had only slight jurisdiction in regards to private matters between litigants. The Exchequer therefore had a much lighter caseload than the King's Bench and other courts in England. Litigants who commenced an action in the Exchequer Court on a debt, therefore, had to plead that they owed money to the King, which they could not pay because their debtor had in turn wrongfully withheld payment to them. It came to pass that the debt owed to the King became a legal fiction in that the original debtor was not entitled to controvert this allegation in order to oust the Exchequer from jurisdiction. The litigant, by using this artifice against the debtor, could bring his case into a court with a substantially lesser caseload.

Jurisdiction of the Court of King's Bench

The Bill of Middlesex was a legal fiction used by the Court of King's Bench to gain jurisdiction over cases traditionally in the remit of the Court of Common Pleas. Hinging on the King's Bench's retaining criminal jurisdiction over the county of Middlesex, the Bill allowed it to take cases traditionally in the remit of other common law courts by claiming that the defendant had committed trespass in Middlesex. Once the defendant was in custody, the trespass complaint would be quietly dropped and other complaints (such as debt or detinue) would be substituted.

Resignation from Parliament

Another legal fiction involves resignation from Parliament in the United Kingdom. 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 weak in comparison to the 21st century, and service was sometimes considered a resented duty rather than a position of power and honour. However, an MP who accepted an "office of profit" from the Crown (including appointment as a minister) was obliged to leave the House and seek re-election, because it was thought that his independence might be compromised if he were 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" or "Steward of the Manor of Northstead" with no duties or income, but legally an office of profit in the King's gift nonetheless. The first MP to avail himself of the Chiltern Hundreds to leave Parliament was John Pitt in 1751. The requirement for ministerial re-election has been abolished, but the "Chiltern Hundreds" mechanism has been retained to enable MPs to resign.

Surviving fictions

The elaborate fiction 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). The doctrine of survival, although still existing in England, has been abolished in many U.S. states by the Uniform Simultaneous Death Act. 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.

The 2019 UK prorogation controversy was resolved through the use of legal fiction. Although the United Kingdom Supreme Court found that Prime Minister Boris Johnson's prorogation of parliament had been unlawful, it lacked the authority to order the recall of Parliament. Instead, the legal fiction was maintained that Parliament had never been prorogued; any references to prorogation were expunged from the record, and Parliament was instead recorded as being adjourned, enabling it to reassemble the next day.[9]

Philosophical arguments

Henry Maine argued that legal fictions seem an ornate outgrowth of the law that ought to be removed by legislation. Jeremy Bentham sharply criticised the notion of legal fictions, saying that "fictions are to law what fraud is to trade."[3][4]

William Blackstone defended them, observing that legislation is never free from the iron law of unintended consequences.[citation needed] Using the metaphor of an ancient castle, Blackstone opined:

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 cheerful and commodious, though their approaches are winding and difficult.

Use in fiction

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. This decision results in the father's will determining Peter's legal guardian. However, 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 fact in error as to the English law, which instead 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 also recognized individually so that they might each receive individual portions of food as they have "two independent appetites". He is, however, turned down by the Court (made up of fellow Gondolieri) because the joint rule "... is a legal fiction, and legal fictions are solemn things."[10]

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.

Limitations on their use

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:

  • A legal fiction should not be employed to defeat law or result in illegality: it has been always stressed that a legal fiction should not be employed where it would result in the violation of any legal rule or moral injunction. In Sinclair v. Brougham 1914 AC 378 the House of Lords refused to extend the juridical basis of a quasi-contract to a case of an ultra vires borrowing by a limited company, since it would sanction the evasion of the rules of public policy forbidding an ultra vires borrowing by a company. In general, if it appears that a legal fiction is being used to circumvent an existing rule, the courts are entitled to disregard that fiction and look at the real facts. The doctrine of "piercing the corporate veil" is applied under those circumstances.
  • Legal fiction should operate for the purpose for which it was created and should not be extended beyond its legitimate field.
  • Legal fiction should not be extended so as to lead to unjust results. For example, the fiction that the wife's personality is merged in that of the husband should not be extended to deny to the wife of a disqualified man the right to an inheritance when it opens. The wife of a murderer can succeed to the estate of the murdered man in her own right and will not be affected by the husband's disqualification.[11]
  • There cannot be a fiction upon a fiction. For example, in Hindu law, where a married person is given in adoption, and such person has a son at the time of adoption, the son does not pass into his father's adoptive family along with his father. He does not lose his gotra and right of inheritance in the family of his birth. The second example would be that the adopted son would by a fiction be a real son of the adoptive father and his wife associated with the adoption. But to say that he will be the real son of all the wives of the adoptive father is a fiction upon fiction.[citation needed]

In religion

  • In Judaism, it is forbidden to own any chametz (leavened food) during Passover, and any such products must be burned before the holiday. However, in practice, most Jews will sell all their chametz to a non-Jew before Passover for a nominal sum, typically through a rabbi acting as an agent on their behalf, then buy it back after the holiday ends, eliminating the need to destroy or give away large amounts of food.[12]

See also


  1. ^ The "reasonable man" is also known as the "objective bystander" or "the man on the Clapham omnibus".
  2. ^ In Camplin, in determining whether the defendant had been provoked to murder (an objective test), the jury should be allowed to consider the age of the defendant, who was 15 (a subjective test).


  1. ^ Black's Law Dictionary, 804 (5th ed. 1979)
  2. ^ DPP v Camplin [1978] AC 705 House of Lords
  3. ^ a b Raymond Wacks (February 2, 2012). Understanding Jurisprudence: An Introduction to Legal Theory. Oxford University Press. p. 202. ISBN 978-0-19-960826-3. Retrieved April 28, 2015.
  4. ^ a b Moglen, Eben (1998). "Legal Fictions and Common Law Legal Theory - Some Historical Reflections". Originally Prepared for Publication Tel-Aviv University Studies in Law (August 14, 1989). Columbia University.
  5. ^ Fuller 1931, pp. 363, 513, 877.
  6. ^ Shaw v DPP [1962] AC 220
  7. ^ Fuller, Lon L. (1931). "Legal Fictions". Illinois Law Review. CA, USA: Stanford University Press. XXV: 39. ISBN 9780804703284.
  8. ^ In England and Wales: Law of Property Act 1925, s. 184
  9. ^ "R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) Cherry and others (Respondents) v Advocate General for Scotland (Appellant) (Scotland)" (PDF). Supreme Court.
  10. ^ Gilbert, William S. The Savoy Operas. London: Macmillan, 1962. p.131
  11. ^ See Indian case Ganga v. Chandrabhagabai, 32 Bom.275.
  12. ^ Laws of Selling Chametz

External links

This page was last edited on 19 October 2021, at 08:33
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