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Concept
Legal fiction
Summary
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
A legal fiction typically allows the court to ignore a fact that would prevent it from exercising its jurisdiction by simply assuming that the fact is different. In cases where the court must determine whether a standard has been reached, such as whether a defendant has been negligent, the court frequently uses the legal fiction of the "reasonable man". This is known as the "objective test", and is far more common than the "subjective test" where the court seeks the viewpoint of the parties (or "subjects"). Sometimes, the court may apply a "mixed test", as in the House of Lords' decision in DPP v Camplin 1978.
Legal fictions are different from legal presumptions which assume a certain state of facts until the opposite is proved, such as the presumption of legitimacy. A legal fiction, by contrast, can be seen in laws recognizing "virgin birth", i.e., that a child born to an unmarried mother has no biological, psychological, or sociological father. They are different from hypothetical examples, such as the 'reasonable person' which serve as tools for the court to express its reasoning. They are also different from legal principles which create a legal state of affairs that is different from the underlying facts, such as corporate personhood although these are sometimes wrongly called legal fictions.
The term legal fiction is sometimes used in a pejorative way. Jeremy Bentham was a famous historical critic of legal fictions. Proponents of legal fictions, particularly their use historically (for example, before DNA evidence could give every child the ability to have both genetic parents determined), identify legal fictions as "scaffolding around a building under construction".
It is a legal fiction that the English courts do not "create" new law but merely "declare" the common law that has existed since time immemorial.
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