In Law, particularly in common law traditions, legal fictions are suppositions of fact which are agreed upon to be true in the eyes of the law despite the fact that everyone knows they are not true in reality. A simple example of a legal fiction would be a legislative body which is only constitutionally empowered to sit until midnight on a certain date simply voting to turn back the official clock to extend the session for a few extra hours to complete some bill or procedure.

Examples of Legal Fictions in Action

Legal fictions are typically created for three purposes: to evade archaic rules, to extend legal jurisdiction in ways considered useful, but which would require significant effort to incorporate into actual law, and finally (and perhaps less benevolently), to gain benefit from laws by using them in ways they were not originally intended to be used.

A classic example of a legal fiction used to evade archaic rules is the process used by the Parliament of the United Kingdom to allow its members to resign from office. A rule created in 1623 when Parliament was not as influential and service in Parliament was sometimes seen as a resented imposition rather than a position of power and honor states that members of Parliament are not allowed to resign. However, rule states that if a member of Parliament accepts an "office of profit" from the Crown, he or she is obliged to leave his post so as not to be unduly influenced by being in the pay of the King. Thus when a member of the House of Commons wishes to resign for some reason, they simply employ the legal fiction of applying for an "office of profit under the Crown" and are thus "forced" to give up their membership in Parliament.

Two ancient offices are used for this purpose today - the Steward of the Chiltern Hundreds, and the Steward of the Manor of Northstead. In practice, applications for one of these offices are always accepted by the Crown, to allow MPs to have a way to resign, and to maintain the legal fiction these "Stewards" are actually paid a nominal amount of money to ensure that they are "paid officers of the Crown."

An example of the second type of legal fiction, in which the law is manipulated in a way that is widely considered beneficial but technically somewhat dishonest would be the example cited above, in which everyone agrees that it is important for the legislature to have a few extra hours to finish its business, but it is certainly not worth the trouble, and probably not even feasible, to amend the whole Constitution of the nation, so they simply opt for the quicker expedient of a legal fiction, such as voting to turn back the offical clock a few hours, and then later voting to turn it forward.

The foremost example of the third type of legal fiction, in which laws are extended in ways they were clearly not intended to give advantages to certain groups, is the case of Corporate personhood in the United States. Originally corporations had very limited legal rights and protections and were only supposed to exist for short periods of time to accomplish specific goals, after which they would be disbanded. However, a series of legal rulings in the United States in the 1870s and 1880s created the legal fiction that corporations should be treated like individual persons, and thus benefit from all the same legal rights and protections accorded to a citizen of the United States. This legal fiction has allowed corporations to become far more powerful organizations than the law originally intended them to be.

Debate About Legal Fictions

Some have argued that legal fictions are archaic excrescences on the law which should be sought out and excised by the passage of more precisely worded legislation. Thus the English jurist and philosopher Jeremy Bentham famously declared that "fictions are to law what fraud is to trade," and indeed, over time, many famous legal fictions have been legislated out of existence on the grounds that the are unfair or unwieldy.

For example, for many years US Courts relied upon a legal fiction called the "Doctrine of Survival," which held that in cases where two people died simultaneously or it is not possible to tell who died first, the older person would be thought of as the first to die for legal purposes. But in recent years, the Doctrine of Survival has been replaced in many US States by the Uniform Simultaneous Death Act. Similarly, recent years have seen Australian Courts strike down as blatantly unfair the old legal fiction of terra nullius, which held that property rights did not exist in Australia before the arrival of European settlers, and thus that Aborigines could not assert property rights in court.

Nevertheless, legal fictions serve useful purposes and are unlikely to completely disappear anytime soon. In many cases, it would simply make the law too unwieldy to incorporate clauses for every possible exception or special case into the actual body of legislation, and legal fictions can be used to more efficiently handle these special cases. In other cases, existing legal fictions might be easily obviated by legislative reform, but society has decided that these quaint reminders of bygone days have nostalgic cultural value and ought to be maintained, as in the case of the office of Steward of the Chiltern Hundreds being used to let British MPs resign.

Indeed, as the 18th century English jurist William Blackstone pointed out in a discussion of legal fictions in his famous Commentaries on the Laws of England, just because the ancient castle you inherited has many battlements and walls which no longer serve their original purpose, it does not follow that you would want to knock these walls down, as they have aesthetic value as picturesque reminders of the past.

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