An analysis of legal fictions

Analysis / Legal Fictions

Though in this context one is tempted to recall the position of that acute, though fictional, jurist Lord Mildew, who said: 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.

Manufacturers Hanover Brokerage Servs. The grant was thus taken to convey the fee to the grantee, but only upon birth of issue. The persistence of the technique of make-believe under the pressure of adverse comment both inside and outside the boundaries of the profession is a clue to the centrality of fictionalization in common law thought.

The basic question, for the theorist as well as the historian is what do fictions do in the process of common-law reasoning, and how do they achieve results which the traditional criteria of judgment define as superior to those obtainable without resort to factual distortion?

legal fiction

If the rules of property give what now seems an unjust answer, try obligation; and equity has proved that from the materials of obligation you can counterfeit the phenomena of property. That is, in certain situations where it is more convenient for the law to consider the facts to be a certain way, a policy may be adopted creating the necessary legal fiction.

For while the two forms of rule-making are alternative, they are not mutually exclusive, and the gravest of theoretical issues posed by fictions arise from the interaction of fiction and formal legislation.

But writing about common-law legal theory, attempting to understand the prepossessions and presuppositions of something called the common law mind, requires precisely that we An analysis of legal fictions into that dangerously unstable territory.

A corporation aggregate is only in abstracto—it is invisible, immortal, and rests only in intendment and consideration of the law. Paternity may be a legal fiction. For a second example of the complex relationship of legislative changes in rules to fictional changes in fact, let us take in highly compressed form the long history of the entail.

Has the Common Pleas legislated, so as to broaden the writ of rescue to cover the tortious conduct of reclaiming impounded birds, by fictively deeming geese to be beasts? Always there were qualifications, including the evolution of a process of appeal by writ of error and eventually a concern with the sufficiency of the evidence and even the instructions received at nisi prius by the jury.

He does not lose his gotra and right of inheritance in the family of his birth. Simpson, supra at The Republic in the Machine Agep. The legislature makes prospective general rules for the resolution of disputes. Lord MansfieldMorris v.

Milsom, Historical Foundations of the Common Law 6 2d ed. Interstitial Legislation It has been a frequent observation, made as one might expect in the most negative terms by Bentham, that resort to fiction amounts to a form of legislation, in which variation of fact can be used to alter the incidence of a pre-existing rule: Legal fictions are mostly encountered under common law systems.

It is also a formidable challenge to the theorist who must eventually confront and attempt to explain the institution. Legal fiction should not be extended so as to lead to unjust results. Nor will this shift in perspective do violence to our sense of the realities of life, for it is a plain fact about legislatures, as Alan Watson has recently pointed out, that they do very little of the work that we call legislating.

Fuller, supra at 6. Section 6 3 of the Indian Income Tax Act,provides an alternative easy test for determination of residence of a company: Lord MansfieldLane v. Nationality of corporation[ edit ] The test of nationality of a corporation is dictated by practical needs.

And so the legal world goes round. Who is the father of any son that any son should love him or he any son?

Legal English: “Legal Fiction”

In this account, as in other matters, I must acknowledge the profundity of my debt to Professor Toby Milsom, without whose immense industry and fertility of insight the writing of the history of the common law would be inexpressibly more difficult. Usually, it resides in the place of incorporation or place of its registered office.

Eben Moglen

Indeed, as I have argued elsewhere, it is represented throughout the history of the common law, and while the fecundity of judges and lawyers has varied, there are no barren periods. Jump to navigation Jump to search 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.

In cases where the court must determine whether a standard has been reached, such as whether a defendant has been negligentthe court frequently uses the legal fiction of the " reasonable man ".

The common law, by which I now mean the continuous intellectual tradition of law in the English-speaking world, thus begins in the very instant at which the processes of fact-finding were undergoing a revolutionary change.Exploring the intersections of Victorian literature and law, Trish Ferguson’s Thomas Hardy’s Legal Fictions () is a compelling study of how Hardy’s fiction engaged with prominent legal debates and reforms of his time.

Drawing on the biographical background of Hardy’s interest in the law. Commentators on legal fictions often apply the term to doctrines that make the law’s image of the world seem distorted, bizarre, or fanciful.

Legal fiction

When doctrines such as corporate personhood and civil death are seen as fictional, this characterization depends on the starting point, but also on what. A legal fiction is a fact assumed or created by courts 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. A classic 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. Since Lon Fuller published his trilogy of essays on the topic, students of the legal fiction have focused on identifying additional examples of fictions or challenging Fuller's classic taxonomy.

Legal Fiction. An assumption that something occurred or someone or something exists which, in fact, is not the case, but that is made in the law to enable a court to equitably resolve a matter before it. What follows is an attempt to make some suggestions, arising from an ongoing investigation of legal fictions in the history of common-law thought, concerning the significance of legal fictions for the theorist attempting the analytical description of the common law process.

An analysis of legal fictions
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