An analysis of legal fictions

Legal fictions may be counterintuitive in the sense that one might not normally view a certain fact or idea as established in the course of everyday life, but they are preserved to advance public policy and preserve the rights of certain individuals and institutions.

Legal fiction should not be extended so as to lead to unjust results. It is a fiction, a shade, a nonentity, but a reality for legal purposes. Let us consider the progress of a lawsuit in the royal courts in that period say, for the purposes of specificity, the middle of the fourteenth century in which the common law reached its first flowering.

However, in practice, most Jews will sell all their chametz to a non-Jew before Passover for a nominal sum, typically through a rabbi, then buy it back after the holiday ends, eliminating the need to destroy almost every piece of food they own.

Judgment of the variance between his writ and his count; for his writ says "beasts," and he has counted of geese and ducks, which are not beasts. In this account, as in other matters, I must acknowledge the profundity of my debt to Professor Toby Milsom, without whose immense industry and fertility of insight the writing of the history of the common law would be inexpressibly more difficult.

For example, the rules of the United Kingdom Houses of Parliament specify that a Member of Parliament cannot resign from office, but since the law also states that a Member of Parliament who is appointed to a paid office of the Crown must either step down or stand for re-election, the effect of a resignation can be accomplished by appointment to such an office.

Legal fiction

These events, if true, led to the "assize of novel disseisin", later called the "mixed action in ejectment ", a procedure in which title could ultimately be determined, but which led instead to trial by jury. It is unconscionable in a defendant, to take advantage of the apices litigandi, to turn a plaintiff round, and make him pay costs where his demand is just.

Having seen the connection, however, Fuller did not pursue the full reach of its implications. Always there were qualifications, including the evolution of a process of appeal by writ of error and eventually a concern with the sufficiency of the evidence and even the instructions received at nisi prius by the jury.

For the theorist, the easiest and most comforting response is to wave all such instances aside, to treat them as occasional midsummer nights' dreams of the law, in which the queen of rationality falls in love with a pair of asses' ears. And so the legal world goes round. Fuller, Legal Fictions A textbook on torts, or contracts, or trusts, became an intellectual possibility only as the eighteenth century gave way to the nineteenth.

Conventions and practices over the centuries have imparted a degree of stability both to the institution of legal fictions and to specific legal fictions such as adoptions and corporate personhood that have been repeatedly invoked in judicial precedents.

It should be obvious that the bill of Middlesex, which has been our constant resort throughout this investigation, can also be characterized as a jurisdictional fiction, though the goal was not to secure access to the royal as opposed to local courts, but rather to achieve entry to one of the competing royal jurisdictions offering better procedural terms to plaintiffs.

Milsom, Historical Foundations of the Common Law 6 2d ed. The questions of interest to the theorist are two: Both the royal courts and the American federal courts imposed barriers to entry, and plaintiffs undertook substantial effort in order to meet, or seem to meet, those requirements in order to achieve the benefits of litigation in the highest forum.

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The evidence upon which he draws is intended to establish the proposition for the Roman Republic, the common law, and medieval Europe. The details of that story were not entirely invariable before the court, but they significantly constrained what might be said, and if the facts were slightly other than those contained within the purview of the writ, the plaintiff would be compelled to tell not his own story, but the story long since decided upon by the clerks in Chancery.

The first concerns our archetypal fiction, the bill of Middlesex. The Complete Poems London: If the rules of one tort, say deceit, give what now seems an unjust answer, try another, try negligence.

Neither the nationality of the shareholders nor the country in which the corporation was incorporated determines its nationality.

Legal fiction

And so begins the process whereby the courts shaped technology for barring entails. All the questions that the jury was compelled to answer--was it murder if you were drunk, was it an accident for which defendant wasn't liable if his horse suddenly bolted, could the defendant exonerate himself from his debt if he had paid but neglected to take a receipt--were hidden behind the single word postea; "afterward" the jury came and said whatever it was that represented the net of all the facts and all the law.

The corporation is not a person; it is a legal fiction backed up by guns and police and jail cells and taxing authorities and the regulators called government.

Fictions originating by assertion sometimes subsequently ripen into presumption, as litigants disfavored by the fiction put pressure upon the vulnerable assertion, which is then "strengthened" into a presumption.

As it is not known which parent dies first, a legal fiction is applied maintaining that the husband, being a man and therefore stronger, lived longer. The parties turn up in court and "prove" facts about their relationship and the world to which the judge then "applies" the rules.

The Republic in the Machine Agep.This multi-disciplinary, multi-jurisdictional collection offers the first ever full-scale analysis of legal fictions. Its focus is on fictions in legal practice, examining and evaluating their roles in a variety of different areas of practice (e.g. in Tort Law, Criminal Law and Intellectual Property Law) and in different times and places (e.g.

legal fiction

in Roman Law, Rabbinic Law and the Common Law).Author: Maksymilian Del Mar. FULLER ON LEGAL FICTIONS* ABSTRACT. What are legal fictions? Professor Lon Fuller discussed the matter at some length. One interpretation of his answer is this: they are lies that are not intended to deceive.

This solution fails, in the end, to be convinc- ing.

Analysis / Legal Fictions

This multi-disciplinary, multi-jurisdictional collection offers the first ever full-scale analysis of legal fictions. Its focus is on fictions in legal practice, examining and evaluating their roles in a variety of different areas of practice (e.g.

Legal English: “Legal Fiction”

in Tort Law, Criminal Law and Intellectual Property Law) and in different times and places (e.g. in Roman Law, Rabbinic Law and the Common Law). Understanding and appreciation of the applicability, usefulness, and value, as well as of the negative aspects, of organizational fictions may be furthered by an analysis of the role of legal fictions, which have a well-established place in law and in legal history.

Analysis of the Two Legal Fictions: AN ATTRACTIVE NUISANCE IS AN INVITER Why the Law Needs Fictions and Metaphors. 2 Chapter 3 - Speech Acts and Legal Hearsay What is Hearsay? Legal hearsay: Verbal Act - Hearer’s Reaction and Hearer’s State of Mind; Speaker’s.

The state prosecution's decision to assign the deputy state prosecutor to reexamine the findings of the Justice Ministry's recently released report on the October riots can be seen as belonging to the world of legal fictions.

An analysis of legal fictions
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