An analysis of legal fictions

Rattlesdene v.

Nor is this all, for the common law's hostility to theory has been active, not merely passive. One Exchequer Chamber case of , extant only in a manuscript report in the Harvard Law School library, shows the fiction still operating at that comparatively late date. In this world what from our perspective is called fiction was neither more nor less than a foreseeable consequence of standard operating procedure. But in order to have the advantage of the expedited process and smaller docket in Exchequer, plaintiffs seeking enforcement of purely private debts would plead that they were indebted to the Crown, and were so much the less quo minus able to pay those debts because their debtors hadn't paid up. The implication is that the traditional archetype of common-law process is wrong in detail, because it fails to reflect the bending force which the system applies to facts. Used in fiction[ edit ] In the novel Joan and Peter by H. An office or property in a second country does not necessarily constitute a second residence in that country. The processes of fact determination and rule application are thus seen to be completely independent of the process of rule formation. Rattlesdene v. The Court had only slight jurisdiction in regards to private matters between litigants. Legal fictions in the novel include referring to fairy fruit, mention of which is taboo, as woven silk fabric in order to allow the law to regulate it; and declaring members of the country's Senate "dead in the eyes of the law" in order to remove them from office, since the senators serve for life.

III c. There is some reason to believe the conventional wisdom is mistaken on this latter point. Watson, Failures of the Legal Imagination The controversy which terminated in the murder of Becket concerned in part the effect of the Constitutions of Clarendonwhich confirmed that criminous clerics, after degradation in church courts, should be returned to the royal courts for punishment by the secular power.

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I am not in a position to supply answers to either question, but once again the historical record provides a couple of brief examples whose elements may give rise to fruitful speculation. The conventional wisdom as to the history of benefit of clergy can be found in slightly less exiguous form in T.

An analysis of legal fictions

Should this question be answered by an ordeal of fire, a battle in which God will defend the right, or an examination of the flight of birds? But it will not do merely to think of legislation and "interstitial legislation" by fiction as alternatives, acknowledging the historical primacy of the latter over the former in most periods of the common law's development.

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Most plaintiffs were unwilling to stake life and limb on the hazard of the battle, so the procedure fell into disuse. The parties turn up in court and "prove" facts about their relationship and the world to which the judge then "applies" the rules.

Yet if a realistic understanding of our past makes the effort of theorizing slightly more difficult, the rewards it offers are too substantial to ignore. It came to pass that the debt owed to the King became a legal fiction in that the original debtor was not entitled to controvert this allegation in order to oust the Exchequer from jurisdiction. Whether Harry did or did not kill Dick, whether Roger does or does not owe Hugh five marks on a promise made last Martinmas, whether Adam wrongfully ejected Tom from his estates--all of these questions will be answered by a process through which God can declare his infinite knowledge of the world. Like many fictional devices, this one had significant unintended consequences, but we need not at this point inquire how it came to be that a felon's life was forfeit if he had in the past married a widow, but not if he had wed a virgin. With attention given to the courts rather than the legislature as the primary locale for rule formation, the proliferation of overlapping jurisdictions may perhaps be ascribed some functional significance, but the theoretical simplification which allows the theorist to concentrate on a world containing a single law-maker and a single adjudicator is so attractive that it has overwhelmed the obvious descriptive pressure for a richer analysis. 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 ". In general, if it appears that a legal fiction is being used to circumvent an existing rule, the courts are entitled to disregard that fiction and look at the real facts. See T. While this solved the problem of permanent restraint on alienation, it did so only at the cost of defeating the expectations of grantors, which meant in contemporary terms upsetting the estate planning arrangements of the most powerful players in the political economy. Let us begin, then, with a community in which the legal culture submits all disputed matters of fact to a supernatural process for resolution. 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 intent of this maneuvering is to have the advantage of summons by the advantageous summary process called latitat on the actual claim. By the late thirteenth century, the common law courts had decided that the grant "to A and the heirs of his body" would, if not subject to some form of legal restriction, unacceptably burden lands against transfer. But much of what we take to be matter of law--whether Harry killed by accident or in a drunken rage, whether Roger's promise was gratuitous, whether Adam was the right heir of the prior occupant--will be concealed by the blank result of the supernatural verdict. 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.

Milsom, supra at

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Legal Fictions in Theory and Practice