Why does something need to be a fiction in law or the courts?
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It’s called a “legal fiction” because it’s not true but we pretend it’s true to make the law work more effectively or efficiently.
For example, a corporation is not a person, but we treat it legally as a person: it’s a legal fiction that a “corporation stole your land” because a corporation isn’t an entity that can make decisions or take actions. But so you don’t have to sue every single shareholder and employee of the corporation, we pretend the corporation is a legal person.
Similarly, for a state to assert jurisdiction over you, you’re supposed to have contacts with it under which you derive some benefit and protection from its laws. But let’s say you’re driving down the highway and cross a tiny corner of Tennessee for 2 seconds. In those two seconds, Tennessee can arrest you because we pretend that by being in Tennessee for two seconds, you’re enjoying the benefits and protections of Tennessee law.
In both of these cases, you can make the law work without the fiction, but it would be cumbersome. You’d have to sue a bunch of shareholders, and states would have to establish how much presence counts as “enjoyment and protections of its laws.” Instead we pretend the simpler version is true to make things more efficient.
Simplifying a process to reach the intended/predictable outcome.
Joe’s will says that when he dies, he wants his wife Jane to have everything. If she’s already dead, he wants his brother to have his car and his personal savings to go to his sister.
Jane’s will says that when she dies, she wants her husband to have everything. If he’s already dead, she wants her niece to have her car and her nephew to have her personal savings.
Joe and Jane die in the same car accident. Should the court pretend that Joe died first, give his estate to Jane’s estate, and then give both of their savings to Jane’s nephew? Should it pretend Jane died first, and end up giving all the savings to Joe’s sister? Neither option seems fair or what the couple intended. Instead, the court pretends Jane died first when handling Joe’s will (so his siblings get his stuff) and pretends that Joe died first when handling Jane’s will (so her niblings get her stuff). Since they can’t factually have both died first, the court knows that one of the things it is pretending has to be false, so it’s called a legal fiction.
A legal fiction isn’t something that needs to be fiction, it’s something that actually is fiction. But in order for the legal system to function, it has to be assumed to be true even though it obviously is not.
For example, the courts treat a business as if it were a person, which is how you are able to sue a business that has wronged you. Obviously a business is not a person, but for purposes of liability we’re going to pretend it is.
It’s sort of a common-sense approach to the law – when confronted with certain logical gaps, we create workarounds.
In other words, at some point someone needed to sue a business for the first time and the courts were presented with a bit of a conundrum – who owes the victim their compensation? Is it the clerk who happened to be working the counter at the time of the incident? Is it the owner personally? Does each employee owe a little bit of money?
No, the business itself is responsible. But how can a business be held responsible when it doesn’t even possess the capability of responsibility – because a business is just words on paper.
So the system adapted, and said “For the purposes of this proceeding, we’re going to treat the entity as if it were a person.”
That works, and it seems reasonable and fair, so we’re going to act as if a business is a person even though it isn’t. For the sake of these legal proceedings, we’re going to act as if this fiction was a fact.
A legal fiction may be a hypothetical person created for the purpose of applying a test or standard. For example, there is a test in tort law of how a “reasonable person” would have acted. This person is a legal fiction. Nobody in real life acts in a perfectly rational and prudent way at all times. There is no such thing as a person who you could call to the witness stand to testify as a reasonable person. Instead, the parties debate what this hypothetical person might have done, based on evidence and testimony from real people.
Similarly, in patent law, the inventiveness of a patent might be considered from the perspective of a person of ordinary skill in the art. This is a fictional and impossible person who knows literally all of the prior art in the world regardless of what language it’s in or what university library has the only copy of it locked away in storage, and has all the base technical knowledge to combine it all in routine ways, but has no creativity at all. The parties have to bring evidence of prior art and whether this hypothetical person would have combined it in a particular way. This person only exists to concretize the legal test for inventiveness.
The UK has a fantastically whimsical example of a legal fiction that remains relevant into the modern age.
Our Members of Parliament cannot resign. There is no provision in our (“unwritten”) constitution or Parliamentary rules for this to happen.
**However…** it IS possible for a Member of Parliament to be rendered ineligible to continue holding their seat in Parliament – by accepting a paid office under the Crown (in layman’s terms, accepting a job working for the monarch).
So, rather than creating a process for allowing a member to resign like any normal country would, we instead now have a system where the Speaker can appoint members, at their own request, to one of two nominally paid (i.e. paid fuck all) offices working for the King: the “Crown Steward and Bailiff of the Manor of Northstead” and the “Crown Steward and Bailiff of the Chiltern Hundreds”.
If any MP asks for one of the positions they are immediately appointed to it, rendering themselves ineligible to remain in Parliament and thus triggering a by-election (special election) for their seat.
This is considered a legal fiction because the job isn’t a real job, it’s just a nonsense technicality to allow them to resign.
Media reporting will usually report these appointments using terminology that reflects the practical reality of what has occured (“Nadine Dorries MP has finally **resigned**”) rather than the weird legal reality.
As to *why* we do this… that’s actually a good question to be honest.
A legal fiction is a judicially-established fact that exists due to the operation of law rather than being a true statement about reality.
An example is the doctrine of survival:
Let’s say two family members both die simultaneously in an accident, and their wills conflict in a way that the probate court needs to know who died first to determine how the assets are distributed
Let’s say Jane willed her mug collection to Kim. Bob willed all of his possessions (including his favorite mug) to Jane, so long as Jane lives, but to Anna if Bob survives Jane. If Bob and Jane both die at the same time, who gets Bob’s mug? If Bob died before Jane, Jane inherited the mug at that moment and then bequeathed it to Kim upon her own death. But if Jane died first, then Bob bequeathed everything, including his favorite mug, to Anna.
Under the doctrine of survival, when the order of death cannot be determined, it is treated as fact that the older person died first. This is a legal fiction. Bob is older than Jane, so the court will distribute assets under the assumption that he died first.
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