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)
The near relation, or the feudal lord, of the slain man, was treated as constructively present at his slaying.
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.
As to Legal Fictions and Survivals.
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 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.
Ancient Law
Assumptions concealing that a rule of law has been altered while its letter remains unchanged.
These in strumentalities seem to me to be three in number, Legal Fictions, Equity, and Legislation.
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.
Institutes of Roman Law
The praetorian device of feigning a fact (heirship, usucapion, citizenship, non-deminutio) to extend a civil-law remedy.
Nulla autem formula ad condictionis fictionem exprimitur.
supposing by a fiction that the debtor had not undergone it.
The second class of fictions was an extension or reform of the law.
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.
and here we find the uses of fiction, that sadly misunderstood instrument of justice.
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.
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.
The near relation, or the feudal lord, of the slain man, was treated as constructively present at his slaying.
—“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.