Legal fiction

A legal fiction is a tool in law where, to achieve a particular result, something is treated as true even though it isn't actually true. Courts or legislation can create these fictions. They are not the same as legal presumptions, which accept a fact as true unless someone proves otherwise (like the presumption of legitimacy). The term "legal fiction" is sometimes used negatively; Jeremy Bentham famously criticized them. Supporters, especially those looking at their historical use, describe legal fictions as "scaffolding around a building under construction."

In common law, adoption is a legal fiction: adoptive parents become the legal parents despite no biological link. After an adoption order, the biological parents become legal strangers to the child, and the adoptive parents are fully recognized as parents. A new birth certificate is issued, which is itself a fiction.

Another example is the doctrine of survival. When two or more people die in a way that makes the order of death impossible to determine, the older person is legally considered to have died first. This helps inheritance rules work, for instance allowing the younger person to inherit from the older and then pass that inheritance on. This doctrine still exists in England but has been abolished in many U.S. states by the Uniform Simultaneous Death Act.

In the old common law procedure of ejectment, title to land could be tested through a "writ of right," but the defendant could demand trial by combat. To avoid that risk, the pleadings told a story: John Doe leased land from the plaintiff but was ousted by Richard Roe, who claimed a lease from the defendant. This created a "mixed action in ejectment" that let a jury decide title. This is where the names John Doe and Richard Roe come from. The fiction of Doe, Roe, and the leases was not challenged unless a party wanted to risk trial by combat, which fell out of use by the late 1200s but wasn't abolished in England until 1819.

The "reasonable person" is another legal fiction. Courts use it to decide if a standard has been met, like whether a defendant was negligent. This is the "objective test," more common than the "subjective test" (which looks at the parties' own viewpoints). Sometimes a "mixed test" is applied, as in the House of Lords' decision in DPP v Camplin in 1978.

In England, a legal fiction expanded the jurisdiction of the Court of the Exchequer to all debt cases. The Exchequer had a lighter caseload than other courts. Litigants would start a case there by claiming they owed money to the King but couldn't pay because their debtor had wrongfully withheld payment. The debt to the King was a fiction, and the original debtor could not challenge it to remove the case from the Exchequer.

The Bill of Middlesex was a fiction used by the Court of King's Bench to take cases normally handled by the Court of Common Pleas. Since the King's Bench had criminal jurisdiction over Middlesex, it could claim the defendant had committed trespass there. Once the defendant was in custody, the trespass charge was dropped and other complaints, like debt or detinue, were substituted.

In 1623, a rule declared that members of Parliament could not resign because they held a trust for their constituents. However, an MP who accepted an "office of profit" from the Crown (like a ministerial post) had to leave the House and seek re-election. To get around this, MPs who wanted to quit would apply for the post of "Steward of the Chiltern Hundreds" or "Steward of the Manor of Northstead"—positions with no duties or income but legally considered offices of profit. The first MP to use the Chiltern Hundreds to leave Parliament was John Pitt in 1751. The requirement for ministerial re-election has been abolished, but the Chiltern Hundreds mechanism still allows MPs to resign.

In Australia, the Mabo v Queensland case invalidated a legal fiction. The High Court rejected earlier rulings that Indigenous Australians were too "low in the scale of social organization" at British settlement to hold title to land, overturning that fiction due to better historical understanding and changing social norms.