Legal Fictions
idea · 5 works · 7 mentions · 18 anchored passages
fictio · fiction · legal fictions · Fiction · Fictions · constructive presence · constructively present · fictiones · fictions · fictions and survivals
spoken of as
2 expressionsLegal fiction4 mentions
Lectures on the Relation between Law and Public Opinion in England (English) · Institutes of Roman Law (English) · The Genius of the Common Law (English) · Magna Carta: A Commentary on the Great Charter of King John (English)
The notion that judges pretended to expound the laws which they really made is based upon ignorance of the fact that fiction is not fraud, and that legal fictions are the natural product of certain social and intellectual conditions.
Constructive Presence“Legal Fiction”1 mention
Magna Carta: A Commentary on the Great Charter of King John (English)
—“A woman is heard in this suit accusing anyone of her husband’s death, if she speak as being an eye–witness to the fact, because husband and wife are one flesh”—another example of constructive presence.
in the texts
Lectures on the Relation between Law and Public Opinion in England
Legal fictions and survivals: an assortment of antiquated, fictitious legal devices (venue fictions, fictitious actions, ejectment personas) tolerated by public opinion in 1800 and only slowly abolished.
The existence of these fictions, survivals, and abuses, during a period of legal stagnation, is hardly more noteworthy than the fact that many of them were not abolished till well after the commencement of the era of Benthamite reform.
They were nevertheless tolerated, or rather held unobjectionable, by the public opinion of 1800, just as were other survivals and fictions which were as noxious as they were obviously ridiculous.
The ordinary civil jurisdiction of the Court of Exchequer rested upon the equally absurd fiction that the plaintiff in an action was a debtor to the king, and, owing to the injury or damage done him by the defendant, was unable to pay his debt to the king.
Ancient Law
Assumptions concealing that a rule of law has been altered while its letter remains unchanged.
We must, therefore, not suffer ourselves to be affected by the ridicule which Bentham pours on legal fictions wherever he meets them.
It would be easy to select from almost any regularly developed body of rules examples of legal fictions, which at once betray their true character to the modern observer.
These in strumentalities seem to me to be three in number, Legal Fictions, Equity, and Legislation.
Institutes of Roman Law
The praetorian device of feigning a fact (heirship, usucapion, citizenship, non-deminutio) to extend a civil-law remedy.
The fiction would be the false assumption that the plaintiff’s case satisfied the abrogated condition.
Gaius appears to have divided Fictions into two classes, those which made a reference from the formulary system to the older system of procedure, and those which made a reference from rights protected by the praetor to rights recognized by the civil law.
Fictions of a different kind are employed in certain formulae, as for example when the bonorum possessor or praetorian successor sues under a fiction that he is civil heir.
The Genius of the Common Law
The use of legally acknowledged pretenses (such as presumed promises or fictitious parties) to extend justice beyond the rigid bounds of older forms.
By fiction, the fiction of conclusively presuming that a man had promised to pay what he owed, Assumpsit annexed the territory which formalism would have reserved for Debt.
and here we find the uses of fiction, that sadly misunderstood instrument of justice.
Magna Carta: A Commentary on the Great Charter of King John
The legal fiction whereby certain relations (a feudal lord, a wife) were treated as eyewitnesses to a killing, enabling them to bring a homicide appeal despite the strict eyewitness rule.
—“A woman is heard in this suit accusing anyone of her husband’s death, if she speak as being an eye–witness to the fact, because husband and wife are one flesh”—another example of constructive presence.
The near relation, or the feudal lord, of the slain man, was treated as constructively present at his slaying.