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FICTIONS
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FICTIONS , or legal fictions, in See also:law, the See also:term used for false averments, the truth of which is not permitted to be called in question. See also:English law as well as See also:Roman law abounds in fictions. Sometimes they are merely the condensed expression of a See also:rule of law, e.g., the fiction of English law that See also:husband and wife were one See also:person, and the fiction of Roman law that the wife was the daughter of the husband. Sometimes they must be regarded as reasons invented in See also:order to justify a rule of law according to an implied ethical See also:standard. Of this sort seems to be the fiction or presumption that every one knows the law, which reconciles the rule that See also:ignorance is no excuse for See also:crime with the moral See also:commonplace that it is unfair to punish a See also:man for violating a law of whose existence he was unaware. Again, some fictions are deliberate falsehoods, adopted as true for the purpose of establishing a remedy not otherwise attainable. Of this sort are the numerous fictions of English law by which the different courts obtained See also:jurisdiction in private business, removed inconvenient restrictions in the law See also:relating to See also:land, &c.
What to the scientific jurist is a stumbling-See also:block is to the older writers on English law a beautiful See also:device for reconciling the strict See also:letter of the law with See also:common sense and See also:justice. See also:Blackstone, in noticing the well-known fiction by which the See also:court of See also: It was the means by which See also:judges usurped the functions of legislators. " A fiction of law," he says, " may be defined as a wilful falsehood, having for its object the stealing legislative See also:powers by and for hands which could not or durst not openly claim it, and but for the delusion thus produced could not exercise it." A See also:partnership, he says, was formed between the See also:kings and the judges against the interests of the See also:people. " Monarchs found force, lawyers See also:fraud; thus was the See also:capital found " (See also:Historical See also:Preface to the second edition of the Fragment on See also:Government).' ' In the same See also:essay Bentham notices the See also:comparative rarity of fictions in Scots law. As to fiction in particular, compared with the See also:Sir H. See also:Maine (See also:Ancient Law) supplies the historical See also:element which is always lacking in the explanations of Austin and Bentham. Fictions See also:form one of the agencies by which, in progressive See also:societies, See also:positive law is brought into See also:harmony with public See also:opinion. The others are See also:equity and statutes. Fictions in this sense include, not merely the obvious falsities of the English and Roman systems, but any See also:assumption which conceals a See also:change of law by retaining the old See also:formula after the change has been made. It thus includes both the See also:case law of the English and the Responsa Prudentum of the See also:Romans. " At a particular See also:stage of social progress they are invaluable expedients for overcoming the rigidity of law; and, indeed, without one of them, the fiction of See also:adoption, which permits the See also:family tie to be artificially created, it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first steps towards See also:civilization." The bolder remedial fictions of English law have been to a large extent removed by legislation, and one great obstacle to any reconstruction of the legal See also:system has thus been partially removed. Where the real remedy stood in glaring contrast to the nominal rule, it has been openly ratified by See also:statute. In See also:ejectment cases the mysterious sham litigants have disappeared. The See also:bond of See also:entail can be broken without having recourse to the collusive proceedings of See also:fine and recovery. Fictions have been almost entirely banished from the See also:procedure of the courts. The See also:action for See also:damages on See also:account of See also:seduction, which is still nominally an action by the See also:father for loss of his daughter's services, is perhaps the only fictitious action now remaining. Fictions which appear in the form of principles are not so easily dealt with by legislation. To expel them formally from the system would require the re-enactment of vast portions of law. A change in legal modes of speech and thought would be more effective. The See also:regal mind instinctively seizes upon See also:concrete See also:aids to abstract reasoning. Many hard and revolting fictions must have begun their career as metaphors. In some cases the See also:history of the change may still almost be traced. The conception that a man-of-See also:war is a floating See also:island, or that an See also:ambassador's See also:house is beyond the territorial limits of the See also:country in which he resides, was originally a figure of speech designed to set a rule of law in a striking See also:light. It is then gravely accepted as true in fact, and other rules of law are deduced from it. Its beginning is to be compared with such phrases as " an Englishman's house is his See also:castle," which have had no legal offshoots and still remain See also:mere figures of speech. Constitutional law is of course honeycombed with fictions. Here there is hardly ever anything like See also:direct legislative change, and yet real change is incessant. The rules defining the See also:sovereign See also:power and fixing the authority of its various members are in most points the same as they were at the last revolution, in many points they have been the same since the beginning of See also:parliamentary government. But they have See also:long ceased to be true in fact; and it would hardly be too much to say that the entire See also:series of formal propositions called the constitution is merely a series of fictions. The legal attributes of the king, and even of the House of Lords, are fictions. If we could suppose that the effects of the Reform Acts had been brought about, not by legislation, but by the decisions of law courts and the practice of House of See also:Commons committees—by such assumptions as that freeholder includes See also:lease-holder and that ten means twenty—we should have in the legal constitution of the House of Commons the same See also:kind of fictions that we find in the legal statement of the attributes of the See also:crown and the House of Lords. Here, too, fictions have been largely resorted to for the purpose of supporting particular
work done by it in English law, the use made of it by the Scottish lawyers is next to nothing. No need have they had of any such clumsy instrument. They have two others " of their own making, by which things of the same sort have been done with much less trouble. Nobile officium gives them the creative power of legislation; this and the word desuetude together the annihilative." And he rotices aptly enough that, while the English lawyers declared that See also: Additional information and CommentsThere are no comments yet for this article.
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