Legal fiction

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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.


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


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.[ citation needed ]

Doctrine of survival

If two or more people die within a period of time or in a manner that renders it impossible to tell the order in which they died, the older of the two is considered to have died first. [6]

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

Doe and Roe

The use of John Doe or Jane Roe to identify an undisclosed party in a lawsuit is a type of legal fiction.

The fiction of 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 fiction about Doe being left homeless by Roe, used often in property law, however, has been abolished in every common law jurisdiction.[ citation needed ]


The common law had a procedure whereby title to land could be put in direct issue, called the "writ of right". The defendant could insist on trial by "wager of battle", that is trial by combat, a judicially sanctioned duel. To avoid the plaintiff staking life and limb, a 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. Such events would lead to the "mixed action in ejectment", a procedure to determine title via trial by jury. This is the origin of the names John Doe and Richard Roe for anonymous parties. The fiction of Doe, Roe, and the leases was not challenged by the parties unless they wished to stake their life on a trial by combat. Wager of battle fell into disuse by the end of the thirteenth century though it was not abolished in England until 1819.

Reasonable man

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. [7] [note 2]

English examples

Jurisdiction of the Exchequer

In England, a legal fiction extended the jurisdiction of the Court of the Exchequer to all types of cases involving debt. The Exchequer had a much lighter caseload than the King's Bench and other courts in England. Litigants would commence an action in the Exchequer Court by pleading that they owed money to the King, which they could not pay because their debtor had in turn wrongfully withheld payment to them. 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.

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

In 1623, a rule was declared that Members of Parliament were given a trust to represent their constituencies and, therefore, were not at liberty to resign. 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 his independence might be compromised if he were in the King's pay.

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. 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 remains to enable MPs to resign.

2019 prorogation controversy

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. [8]

Australian examples

Mabo v Queensland

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]

Philosophical arguments

William Blackstone defended legal fictions, 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.

Henry Maine, on the other hand, 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." [2] [3]

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 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.[ dubious discuss ]

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.

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:

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.

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).

Related Research Articles

A plaintiff is the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order. "Plaintiff" is the term used in civil cases in most English-speaking jurisdictions, the notable exceptions being England and Wales, where a plaintiff has, since the introduction of the Civil Procedure Rules in 1999, been known as a "claimant" and Scotland, where the party has always been known as the "pursuer". In criminal cases, the prosecutor brings the case against the defendant, but the key complaining party is often called the "complainant".

In law as practiced in countries that follow the English models, a pleading is a formal written statement of one party's claims or defenses in response to another party's complaint(s) in a civil action. The parties' pleadings in a case define the issues to be adjudicated in the action.

<span class="mw-page-title-main">John Doe</span> Common placeholder name in English

John Doe (male) and Jane Doe (female) are multiple-use placeholder names that are used in the United States and the United Kingdom when the true name of a person is unknown or is being intentionally concealed. In the context of law enforcement in the United States, such names are often used to refer to a corpse whose identity is unknown or cannot be confirmed. These names are also often used to refer to a hypothetical "everyman" in other contexts, like John Q. Public or "Joe Public". There are many variants to the above names, including John/Jane Roe, John/Jane Smith, John/Jane Bloggs, and Johnie/Janie Doe or just Baby Doe for children.

<span class="mw-page-title-main">English law</span> Legal system of England and Wales

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.

<span class="mw-page-title-main">Writ</span> Formal written order issued by an entity

In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, and certiorari are common types of writs, but many forms exist and have existed.

<span class="mw-page-title-main">Court of Chancery</span> Court of equity in England and Wales (c. 1350–1875)

The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the estates of lunatics and the guardianship of infants.

In English law, the benefit of clergy was originally a provision by which clergymen accused of a crime could claim that they were outside the jurisdiction of the secular courts and be tried instead in an ecclesiastical court under canon law. The ecclesiastical courts were generally seen as being more lenient in their prosecutions and punishments, and defendants made many efforts to claim clergy status, often on questionable or fraudulent grounds.

A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying "So what?" to the pleading.

Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly used in the United Kingdom and other Commonwealth jurisdictions instead of "landmark case", as used in the United States.

The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed in the commission of a dangerous or enumerated crime, the offender, and also the offender's accomplices or co-conspirators, may be found guilty of murder.

<span class="mw-page-title-main">Judicature Acts</span> UK laws restructuring the English-Welsh court system (1873–1899)

In the history of the courts of England and Wales, the Judicature Acts were a series of acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts of England and Wales. The first two acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875, with a further series of amending acts.

<span class="mw-page-title-main">Exchequer of Pleas</span> English-Welsh court for common and equity law (1190s–1880)

The Exchequer of Pleas, or Court of Exchequer, was a court that dealt with matters of equity, a set of legal principles based on natural law and common law in England and Wales. Originally part of the curia regis, or King's Council, the Exchequer of Pleas split from the curia in the 1190s to sit as an independent central court. The Court of Chancery's reputation for tardiness and expense resulted in much of its business transferring to the Exchequer. The Exchequer and Chancery, with similar jurisdictions, drew closer together over the years until an argument was made during the 19th century that having two seemingly identical courts was unnecessary. As a result, the Exchequer lost its equity jurisdiction. With the Judicature Acts, the Exchequer was formally dissolved as a judicial body by an Order in Council on 16 December 1880.

The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".

A legal case is in a general sense a dispute between opposing parties which may be resolved by a court, or by some equivalent legal process. A legal case is typically based on either civil or criminal law. In most legal cases, there are one or more accusers and one or more defendants. In some instances, a legal case may occur between parties that are not in opposition, but require a legal ruling to formally establish some legal facts.

In the history of the courts of England and Wales, the writ of quominus, or writ of quo minus, was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas. The Exchequer was tasked with collecting the King's revenue, and the legal fiction worked by having the plaintiff in a debt case claim that he was a debtor to the king, and that the defendant's debt prevented him paying the King. As such, the defendant would be arrested, and the case heard by the Exchequer. The writ's predecessors were in use from at least 1230, and it was in common use during the 16th century. The use continued into the 19th century, until all original writs were abolished in 1883.

<span class="mw-page-title-main">Court of Common Pleas (England)</span> English court for disputes between commoners (c. 1200 – 1880)

The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common Pleas served as one of the central English courts for around 600 years. Authorised by Magna Carta to sit in a fixed location, the Common Pleas sat in Westminster Hall for its entire existence, joined by the Exchequer of Pleas and Court of King's Bench.

The Court of Civil Jurisdiction was a court established in the late 18th century, in the colony of New South Wales which subsequently became a state of Australia. The court had jurisdiction to deal with all civil disputes in the then fledgling colony. It was in operation between 1788, the date of establishment of the new colony, and 1814.

<span class="mw-page-title-main">Bill of Middlesex</span> English legal fiction used by the Court of Kings Bench until 1832

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 would be substituted.

<span class="mw-page-title-main">Court of King's Bench (England)</span> English common law court (c. 1200–1873)

The Court of King's Bench, formally known as The Court of the King Before the King Himself, was a court of common law in the English legal system. Created in the late 12th to early 13th century from the curia regis, the King's Bench initially followed the monarch on his travels. The King's Bench finally joined the Court of Common Pleas and Exchequer of Pleas in Westminster Hall in 1318, making its last travels in 1421. The King's Bench was merged into the High Court of Justice by the Supreme Court of Judicature Act 1873, after which point the King's Bench was a division within the High Court. The King's Bench was staffed by one Chief Justice and usually three Puisne Justices.

<i>Slades Case</i> Case in English contract law that ran from 1596 to 1602.

Slade's Case was a case in English contract law that ran from 1596 to 1602. Under the medieval common law, claims seeking the repayment of a debt or other matters could only be pursued through a writ of debt in the Court of Common Pleas, a problematic and archaic process. By 1558 the lawyers had succeeded in creating another method, enforced by the Court of King's Bench, through the action of assumpsit, which was technically for deceit. The legal fiction used was that by failing to pay after promising to do so, a defendant had committed deceit, and was liable to the plaintiff. The conservative Common Pleas, through the appellate court the Court of Exchequer Chamber, began to overrule decisions made by the King's Bench on assumpsit, causing friction between the courts.


  1. Black's Law Dictionary, 804 (5th ed. 1979)
  2. 1 2 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.
  3. 1 2 Moglen, Eben (1998). "Legal Fictions and Common Law Legal Theory - Some Historical Reflections". Columbia University.
  4. Fuller 1931, pp. 363, 513, 877.
  5. Fuller, Lon L. (1931). "Legal Fictions". Illinois Law Review. XXV. CA, USA: Stanford University Press: 39. ISBN   9780804703284.
  6. In England and Wales: Law of Property Act 1925, s. 184
  7. DPP v Camplin [1978] AC 705 House of Lords
  8. "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.
  9. Mabo v Queensland (No 2) [1992] HCA 23 at paras. 39 to 42, (1992) 175 CLR 1
  10. Hope, Deborah (25 February 2006). "'Minor role' for terra nullius" . The Australian . News Corp Australia. ProQuest document ID: 356242488 via ProQuest.
  11. Brennan J (1995). "Aboriginal land claims, an Australian perspective". High Court of Australia. Retrieved 3 December 2022.
  12. Gilbert, William S. The Savoy Operas. London: Macmillan, 1962. p.131
  13. The Patent Act of 1952 - Legislative History - The Federico Commentary