Legal fiction

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A legal fiction is a fact assumed or created by courts[1] which is then used in order to apply a legal rule. Legal fiction allows an intellectual tradition of defining a legal standard such as by way of a person, which has resulted in the creation of classic hypothetical figures in law including: The man on the Clapham omnibus, the right-thinking member of society, the officious bystander, the "reasonable parent," the "reasonable landlord," and the "fair-minded and informed observer," and stretching back to Roman jurists, the figure of the bonus paterfamilias.[2] Legal fictions are mostly encountered under common law systems.

While all creation of law is subject to unintended consequences, that resulting from legal fiction can produce particular outrage because it follows from a premise in pure fantasy.[3] Legal fictions may be counterintuitive to those surprised to hear logic from fantasy as a means to administer justice in the modern course of everyday life, but they are preserved to advance public policy and preserve the rights of certain individuals and institutions. Such an example is when a corporation is treated in judicial proceedings as if it were a "natural person" and thus has the same legal rights and responsibilities as a natural person.

It's alleged legal fiction is used as a definition or means for an improvised solution to antinomy in law,[citation needed] such as the Morton's fork or double bind in the rules of the United Kingdom Houses of Parliament which 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.

The term "legal fiction" is not usually used in a pejorative way, and has been likened to scaffolding around a building under construction.[4]



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 him. Conversely, the adoptive parent(s) are legally considered to be the parent(s) of the adopted child; a new birth certificate reflecting this is issued. The new birth certificate is a legal fiction.[5]

Corporate personhood

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The concept of the law treating corporate entities as if they were persons dates back to Ancient Rome.[6]

This simple fiction enabled corporations to acquire wealth, expand, and become the preferred organizational form for businesses of all sizes. Corporate personhood has come under criticism recently, as courts have extended other rights to the corporation beyond those necessary to ensure their liability for debts. Other commentators argue that corporate personhood is not a fiction anymore; it simply means that for some legal purposes, "person" has now a wider meaning than it had before and it still has in non-legal uses. In jurisdictions using this fiction, a legal draftsman may distinguish between a "person" and a "natural person" to specify the scope of legislation.

Enemy character of the corporation

The corporation is itself incapable of loyalty or enmity. In Daimler Co. v. Continental Tyre and Rubber Co. it was observed: "I know not from what human beings that the character should be derived if resort is not had to the predominant character of its shareholders." However, it is not the shareholders that are always the decisive factor. Sometimes the human beings from whom the character of enmity is to be inferred are to be found in the members of another corporation holding all or practically all the shares of that corporation; sometimes the dominating persons are outsiders controlling the company by nominees.

Nationality of corporation

The test of nationality of a corporation is dictated by practical needs. Neither the nationality of the shareholders nor the country in which the corporation was incorporated determines its nationality. A corporation incorporated in India can assume "enemy character" if the persons in de facto control of its affairs are "alien enemies" or are residing in enemy territory or, wherever residing, are acting under the control of enemies.[7]

The central idea of this test is called the "brain theory" of the corporation. The other test involves primarily the "locus" of one or a number of activities of the corporation. This is the "locus theory". Modern corporate jurisprudence takes into consideration six factors in determining the nationality of a corporation:

  • the state of incorporation
  • the principal seat of business
  • nationality of the shareholders
  • the nationality of overall investment
  • the nationality of the management
  • the persons controlling the business of corporation

A company incorporated under a particular national statute may acquire a foreign residence so as to be liable to be sued in a foreign country.[8]


Related to a corporation's nationality is its residence. This can be juristically difficult as a typical "multinational" has domiciles in several countries.

There are at least two questions in this realm. Where does a company reside? Usually, it resides in the place of incorporation or place of its registered office. Can a company have multiple residence? The legal convention indicates that it can, but by what criteria? An office or property in a second country does not necessarily constitute a second residence in that country.

The place of registration of a company, like the birthplace of an individual, is not conclusive on the question of residence. Section 6 (3) of the Indian Income Tax Act, 1961, provides an alternative easy test for determination of residence of a company: "A company is said to be resident in India in any previous year, if it is an Indian Company or during that year, the control and management of its affairs is situated wholly in India." Whether a company fits this description is a pure question of fact.

Similarly, in North American broadcasting, a radio or television station has a legal city of license which does not necessarily correspond to the location of its studios or the market that the station's programming is intended to serve.

Doctrine of survival

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The doctrine of survival is also an example of legal fiction. If two people die at the same time or in a manner that renders it impossible to tell who had died first, the older of the two is considered to have died first, subject to rebuttal by evidence demonstrating the actual order of death.[9] In the United States, many jurisdictions have abolished the doctrine of survival by statute; see Uniform Simultaneous Death Act.


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

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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

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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 remaining 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

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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, it being feared that his independence was 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.

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]

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:

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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.

Legal fictions used 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 Gilbert and Sullivan's The Gondoliers, Giuseppe Palmieri (who jointly serves as King of Barataria with his brother Marco) requests that he and his brother be recognized individually.[clarification needed] He is, however, turned down by the Council because the joint rule is a legal fiction.

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 the use of legal fictions

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.[10]
  • 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]

See also

References and notes

  1. Black's Law Dictionary, 804 (5th ed. 1979)
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  3. 3.0 3.1 Lua error in package.lua at line 80: module 'strict' not found.
  4. Fuller 1931, pp. 363, 513, 877
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  6. John Dewey, “The Historic Background of Corporate Legal Personality,” Yale Law Journal, Vol. XXXV, April 1926, pages 655-673
  7. See Daimler Co vs Continental Tyre Co., Ltd., Law Reports (London) [1916] 2 AC p.307.
  8. See Littauer Glove Corporation v. Millington, 44 Times Law Reports 746.
  9. In England and Wales: Law of Property Act 1925, s. 184
  10. See Indian case Ganga v. Chandrabhagabai, 32 Bom.275.

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