Legal fiction

Legal fiction is a term used in jurisprudence to describe a fact assumed or created by courts which is then used in order to apply a legal rule. This is often done in cases where a rule of law would not apply without the assumed or created fact. Legal fiction is used for various purposes, such as upholding justice, advancing legal arguments, and promoting social policies.

History

The concept of legal fiction dates back to Roman law, where it was used as a means of changing or extending the law. The most famous example of a legal fiction in Roman law is the concept of fictio legis, which allowed for the legal treatment of a thing or person in a certain way, despite the reality being different.

Types of Legal Fiction

There are several types of legal fiction, including:

• Presumption: This is an assumption made by a court, based on the circumstances of a case, that is treated as true unless disproved by evidence to the contrary. For example, a person is presumed innocent until proven guilty.

• Fiction of Law: This is a rule that assumes something that is not true. For example, the "reasonable person" used in negligence law does not actually exist, but is a legal construct used to measure whether a person's actions were reasonable.

• Legal Entity: This is a type of legal fiction where a non-human entity, such as a corporation, is treated as a person for certain legal purposes.

Uses of Legal Fiction

Legal fiction is used in various areas of law, including contract law, corporate law, and criminal law. It is used to ensure fairness, to facilitate legal processes, and to fill gaps in the law.

In contract law, for example, the concept of a "reasonable person" is used to determine whether a party's actions were reasonable under the circumstances. In corporate law, corporations are treated as legal persons, allowing them to enter into contracts and sue or be sued.

Criticisms of Legal Fiction

Despite its widespread use, legal fiction has been criticized for being deceptive and for potentially leading to unjust outcomes. Critics argue that it can be used to circumvent the law and that it can result in decisions that are not based on fact.

See Also

• Law
• Jurisprudence
• Roman law
• Contract law
• Corporate law
• Criminal law