Another Word for Legal Fiction

The elaborate fiction about poor Doe, which was made homeless by Roe, was abolished by law or by civil process reforms in all common law jurisdictions. The company that Doe and Roe are the custodians of unknown parties who wish to take legal action, or the names of unknown parties, remains in some jurisdictions (but not in England). The doctrine of survival, although still present in England, was abolished in many American states by the Uniform Simultaneous Death Act. Legal fictions have also been declared invalid as contrary to public order, as in the rejection of the doctrine of terra nullius by the Supreme Court of Australia in the Mabo cases, the legal fiction that there were no property rights to land in Australia before the time of European colonization. In the novel Joan and Peter (1918) by H. G. Wells dies of Peter`s parents in a sailing accident. Since it is not known which parent dies first, a legal fiction is applied that claims that the husband, who is a man and therefore stronger, lived longer. This decision leads the father`s will to determine Peter`s legal guardian.

Later in the novel, however, a witness to the accident explains that he sees the mother stumble some time after the father`s disappearance, and so the legal fiction is abolished and the mother`s will is followed, giving Peter a new legal guardian. Wells was wrong about English law, which instead assumes that the elderly person died first. A legal fiction is a fact assumed or created by the courts[1], which is then used to make a decision or apply a legal norm. The concept is used almost exclusively in common law jurisdictions, particularly in England. An example of legal fiction outside the common law is that it is legally possible to have consumed an illegal substance without possessing it. That is, in some jurisdictions, possession or handling of cannabis is illegal, but a positive test in a drug test is not illegal, although the latter is probably impossible without the former. Another legal fiction concerns the resignation of parliament in the United Kingdom. In 1623, a rule was declared stating that MPs had the confidence to represent their constituencies and therefore did not have the freedom to leave them.

At the time, parliament was relatively weak compared to the 21st century, and service was sometimes seen as a disgruntled duty rather than a position of power and honor. However, a member who accepted a “profit charge” from the Crown (including being appointed a minister) was forced to leave the House and be re-elected, fearing that his independence would be compromised if he was in the king`s pay. Therefore, the device was invented that the deputy who wanted to resign asked the king for the position of “Steward of the Chiltern Hundreds” or “Steward of the Manor of Northstead”, without duties or income, but legally a profit function in the king`s gift. The first MP to use the Chiltern Hundred to leave Parliament was John Pitt in 1751. The requirement for the re-election of ministers was abolished, but the “Chiltern Hundreds” mechanism was maintained to allow MPs to resign. Legal fictions derive their legitimacy from tradition and precedents rather than from the formal status of a source of law. Historically, many legal fictions have been created as ad hoc remedies that have been falsified to deal with a difficult or unforeseen situation. Over the centuries, conventions and practices have given a certain degree of stability to both the institution of legal fiction and specific legal fictions (such as adoptions and corporate personality) that have been repeatedly cited in precedents.

Although the judiciary retains its discretion in the use of legal fiction, some general statements about the appropriateness of the use of legal fictions could be expressed as follows: Legal fictions differ from legal presumptions based on a particular fact until proven otherwise, such as the presumption of legitimacy. In contrast, a legal fiction can be seen in laws that recognize “virgin birth,” that is, a child born to a single mother has no genetic, biological, or psychological father. They are different from hypothetical examples such as the “reasonable person,” which serve as tools for the court to express its reasoning. [Clarification required] They are also different from legal principles that create a different legal state from the underlying facts, such as the personality of the company, although these are sometimes mistakenly called legal fictions. The term “legal fiction” is sometimes used pejoratively. Jeremy Bentham was a famous historical critic of legal fiction. [4] [5] Proponents of legal fictions, particularly their historical use (for example, before DNA evidence could give each child the right to have both genetic parents easily determined), identify legal fictions as “scaffolding around a building under construction.” [6] A similar, though more complicated, legal fiction concerned pleadings in the common law eviction lawsuit attempting to own real estate. The common law had a procedure in which ownership of land could be directly challenged, called a “writ of law.” However, a disadvantage of this procedure was that, after his election, the accused could insist on a trial by “combat tamness”, that is to say by combat, a duel sanctioned by the court.

Most of the complainants were not willing to put their lives and physical integrity at risk of the struggle, so the procedure fell into oblivion. Rather, the pleadings told a detailed account of how a certain John Doe had leased land to the plaintiff, but had been ousted by Richard Roe, who had claimed a lease contrary to the defendant. These events, if true, led to the “Assisi of the novel Disseisin,” which was later called the “mixed action on ejection,” a process in which the title could ultimately be determined, but instead led to a jury trial. This is the origin of the names John Doe, Richard Roe and so on, for anonymous parties. The fiction of Doe, Roe and the leases has not been challenged by the parties unless they want to put their lives and safety into battle. In fact, the Battle of Britain was not abolished until 1819, although it fell into oblivion at the end of the thirteenth century. The Middlesex Bill was a legal fiction used by the Court of King`s Bench to obtain jurisdiction over cases that traditionally fell within the jurisdiction of the Court of Common Pleas. Echoing the remaining criminal jurisdiction of the King`s Bench over Middlesex County, the Bill allowed for cases traditionally under the jurisdiction of other common law courts to be taken over by claiming that the defendant had committed an intrusion into Middlesex. Once the defendant was taken into custody, the charge of trespassing was tacitly dropped and other claims (such as debt or refusal) were replaced.

To do justice, the law will allow or create a legal fiction. For example, if a person renounces a bequest that is a testamentary gift, it is assumed that the person died before the testator – the one who makes a will – for the purpose of distributing the estate. Deem has traditionally been considered a useful word when it is necessary to establish a legal fiction either positively by “looking” at something for what it is not, or negatively by “considering” something as not being what it is.