Online Encyclopedia

Search over 40,000 articles from the original, classic Encyclopedia Britannica, 11th Edition.

FICTIONS

Online Encyclopedia

Originally appearing in Volume V10, Page 320 of the 1911 Encyclopedia Britannica.

» Make a correction to this article.
» Add information or comments to this article.

Encyclopedia Home :: FAT-FLA

Spread the word:

del.icio.us it!

FICTIONS , or legal fictions, in See also:

law, the See also:

TERM

term used for false averments, the truth of which is not permitted to be called in question. See also:

ENGLISH

English law as well as See also:

ROMAN

Roman law abounds in fictions. Sometimes they are merely the condensed expression of a See also:

RULE

rule of law, e.g., the fiction of English law that See also:

HUSBAND

husband and wife were one See also:

PERSON, OFFENCES AGAINST THE

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 (Lat. ignorantia, from ignorare, not to know); want of knowledge, a state of mind which in law has important consequences. A well-known legal maxim runs: ignorantia juris non excusat ("ignorance of the law does not excuse")

ignorance is no excuse for See also:

CRIME (Lat. crimen, accusation)

crime with the moral See also:

COMMONPLACE

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

relating to See also:

LAND

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

device for reconciling the strict See also:

LETTER (through Fr. lettre from Lat. littera or litera, letter of the alphabet; the origin of the Latin word is obscure; it has probably no connexion with the root of linere, to smear, i.e. with wax, for an inscription with a stilus)

letter of the law with See also:

COMMON

common sense and See also:

JUSTICE (Lat. justitia)

justice. See also:

BLACKSTONE, SIR WILLIAM (1723-1780)

Blackstone, in noticing the well-known fiction by which the See also:

court of See also:

king's See also:

BENCH (an O.E. and Eng. form of a word common to Teutonic languages, cf. Ger. Bank, Dan. baenk and the Eng. doublet " bank ")

bench established its jurisdiction in common pleas (viz. that the See also:

DEFENDANT

defendant was in custody of the See also:

MARSHAL (med. Lat. marescalcus, from O.H.Ger. marah, horse, and scalc, servant)

marshal of the court), says, " These fictions of law, though at first they may startle the student, he will find upon further See also:

CONSIDERATION (from Lat. considerare, to look at closely, examine, generally taken to be from con-, and the base seen in sidus, sideris, a star, the word being supposed to be originally an astrological or astronomical term)

consideration to he highly beneficial and useful; especially as this See also:

MAXIM, SIR HIRAM STEVENS (184o- )

maxim is ever invariably observed, that no fiction shall extend to See also:

WORK

work an injury; its proper operation being to prevent a See also:

MISCHIEF

mischief or remedy an inconvenience that might result from the See also:

general rule of law. So true it is that in fictione See also:

JURIS

juris See also:

SEMPER, GOTTFRIED (1803–1879)

semper subsistit aequitas." See also:

Austin, on the other See also:

hand, while correctly assigning as the cause of many fictions the See also:

DESIRE

desire to combine the necessary reform with some show of respect for the abrogated law, makes the following harsh See also:

criticism as to others:—" Why the See also:

PLAIN (O. Fr. plain, from Lat. plenum)

plain meanings which I have now stated should be obscured by the fictions to which I have just adverted I cannot conjecture. A wish on the See also:

PART

part of the authors of the fictions to render the law as uncognoscible as may be is probably the cause which Mr See also:

Bentham would assign. I See also:

JUDGE (Lat. judex, Fr. juge)

judge not, I confess, so uncharitably; I rather impute such fictions to the sheer imbecility (or, if you will, to the active and sportive fancies) of their See also:

GRAVE

grave and See also:

VENERABLE (Lat. venerabilis, worthy of reverence, venerari, to reverence, to worship, allied to Venus, love; the Indo-Germ. root is wen-, to desire, whence Eng. " win, properly to struggle for, hence to gain)

venerable authors, than to any deliberate See also:

DESIGN (Fr. desiin, drawing; Lat. designare, to mark out)

design, See also:

GOOD, JOHN MASON (1764-1827)

good or evil." Bentham, of course, saw in fictions the See also:

INSTRUMENT (Lat. instrumentum, from insincere, to build up, furnish, arrange, prepare)

instrument by which the See also:

GREAT

great See also:

OBJECT

object of his abhorrence, judiciary law, was produced.

It was the means by which See also:

JUDGES, THE BOOK OF

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, HIRAM (1805-1873)

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 (earlier forms, partener, parcener, from Late Lat. partionarius for partitionarius, from partitio, sharing, pars, part)

partnership, he says, was formed between the See also:

KINGS, FIRST AND SECOND BOOKS OF

kings and the judges against the interests of the See also:

PEOPLE

people. " Monarchs found force, lawyers See also:

FRAUD (Lat. fraus, deceit)

fraud; thus was the See also:

capital found " (See also:

HISTORICAL

Historical See also:

PREFACE (Med. Lat. prefatia, for classical praefatio, praefari, to speak beforehand)

Preface to the second edition of the Fragment on See also:

Government).' ' In the same See also:

ESSAY, ESSAYIST (Fr. essai, Late Lat. exagium, a weighing or balance; exigere, to examine; the term in general meaning any trial or effort)

essay Bentham notices the See also:

COMPARATIVE

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 (Lat. elementum)

element which is always lacking in the explanations of Austin and Bentham. Fictions See also:

FORM (Lat. forma)

form one of the agencies by which, in progressive See also:

SOCIETIES, LEARNED

societies, See also:

POSITIVE (or PORTABLE) ORGAN

positive law is brought into See also:

HARMONY (Gr. dpµovia, a concord of musical sounds, dpA'ew to join; &plan midi (sc. TeXvil)

harmony with public See also:

OPINION (Lat. opinio, from opinari, to think)

opinion. The others are See also:

EQUITY (Lat. aequitas)

equity and statutes. Fictions in this sense include, not merely the obvious falsities of the English and Roman systems, but any See also:

ASSUMPTION, FEAST OF

assumption which conceals a See also:

CHANGE (derived through the Fr. from the Late Lat. cambium, cambiare, to barter; the ultimate derivation is probably from the root which appears in the Gr. «a urmu', to bend)

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 (Fr. 6/age; from Lat. stare, to stand)

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 (Lat. adoptio, for adoptalio, from adoptare, to choose for oneself)

adoption, which permits the See also:

FAMILY

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

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

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

statute. In See also:

EJECTMENT (Lat. e, out, and jacere, to throw)

ejectment cases the mysterious sham litigants have disappeared.

The See also:

bond of See also:

ENTAIL (from Fr. tailler, to cut; the old derivation from tales haeredes is now abandoned)

entail can be broken without having recourse to the collusive proceedings of See also:

FINE

fine and recovery. Fictions have been almost entirely banished from the See also:

PROCEDURE (Fr. procedure, from Lat. procedere, to go for-ward)

procedure of the courts. The See also:

ACTION

action for See also:

DAMAGES (through O. Fr. damage, mod. Fr. dommage, from Lat. damnum, loss)

damages on See also:

account of See also:

SEDUCTION (from Lat. seducere, to lead astray)

seduction, which is still nominally an action by the See also:

FATHER

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

regal mind instinctively seizes upon See also:

concrete See also:

AIDS

aids to abstract reasoning. Many hard and revolting fictions must have begun their career as metaphors. In some cases the See also:

HISTORY

history of the change may still almost be traced. The conception that a man-of-See also:

war is a floating See also:

ISLAND (O.E. ieg =isle, +land')

island, or that an See also:

AMBASSADOR (also EMBASSADOR, the form sometimes still used in America; from the Fr. ambassadeur, with which compare Ital. ambasciatore and Span. embajador, all variants of the Med. Lat. ambassiator, ambassiator, ambasator, &c., derived from Med. Lat. amba

ambassador's See also:

house is beyond the territorial limits of the See also:

COUNTRY (from the Mid. Eng. contre or contrie, and O. Fr. cuntree; Late Lat. contrata, showing the derivation from contra, opposite, over against, thus the tract of land which fronts the sight, cf. Ger. Gegend, neighbourhood)

country in which he resides, was originally a figure of speech designed to set a rule of law in a striking See also:

LIGHT

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

direct legislative change, and yet real change is incessant. The rules defining the See also:

SOVEREIGN

sovereign See also:

POWER [WILLIAM GRATTAN] TYRONE (1797-1841)

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

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 (a Latin word from serere, to join)

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

Commons committees—by such assumptions as that freeholder includes See also:

LEASE (derived through the Fr. from the Lat. laxare, to loosen)

lease-holder and that ten means twenty—we should have in the legal constitution of the House of Commons the same See also:

KIND (O. E. ge-cynde, from the same root as is seen in " kin," supra)

kind of fictions that we find in the legal statement of the attributes of the See also:

CROWN

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:

James I1. had abdicated the See also:

THRONE

throne (which everybody knew to be false), the Scottish lawyers boldly said he had forfeited it. theories, popular or monarchical,—and such have flourished even more vigorously than purely legal fictions.

End of Article: FICTIONS

Additional information and Comments

There are no comments yet for this article.

» Add information or comments to this article.

Please link directly to this article:
Highlight the code below, right click, and select "copy." Then paste it into your website, email, or other HTML.

Site content, images, and layout Copyright © 2006 - Net Industries, worldwide.
Do not copy, download, transfer, or otherwise replicate the site content in whole or in part.

Links to articles and home page are always encouraged.

[back]
FICKSBURG

[next]
FIDDES, RICHARD (1671-1725)