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Legal fiction

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A legal fiction is a specific construct used within a legal system. It occurs when a position is taken to be true to facilitate a certain outcome. This position is not literally true in reality. Courts may employ these fictions, or they may be found within written legislation. They differ from legal presumptions. A presumption assumes a fact is true until someone proves it is not, such as the presumption of legitimacy. While some see them as helpful, others use the term pejoratively. Supporters describe them as "scaffolding around a building under construction."

One common mechanism is seen in child adoption. In this process, adoptive parents become the legal parents of a child. This happens even if there is no biological relationship between them. Once a judgment of adoption is entered, the biological parents become legal strangers to the child. They no longer have legal rights related to that child. A new birth certificate is then issued to reflect this change. This document acts as a legal fiction to establish the new family structure.

Another mechanism is the doctrine of survival. This rule applies when two or more people die in a way that makes the order of death impossible to determine. In England and Wales, the Law of Property Act 1925 provides a solution. It states that the older person is considered to have died first. This rule protects the operation of inheritance laws. For example, if a parent and child die together, a grandchild might inherit from both. This allows the parent to inherit and then immediately bequeath property. Many U.S. states have since replaced this with the Uniform Simultaneous Death Act.

History shows how fictions were used to avoid physical danger. In old English common law, land disputes could lead to a "wager of battle." This was a judicially sanctioned duel where parties risked their lives. To avoid this, lawyers used a procedure called the mixed action in ejectment. They told a fictional tale about characters named John Doe and Richard Roe. They claimed Doe leased land but was ousted by Roe. This allowed a jury to decide the title instead of a duel. This is why those names are still used for anonymous parties today.

Legal fictions have also been used to expand the power of specific courts. In England, the Court of the Exchequer used a fiction to handle more debt cases. Litigants would claim they owed money to the King that they could not pay. This brought the cases under the Exchequer's jurisdiction. Similarly, the Court of King's Bench used the "Bill of Middlesex." This allowed them to claim jurisdiction over cases by alleging a trespass occurred in Middlesex. Once a defendant was in custody, the trespass charge was often dropped for a different claim.

In the United States, the concept of legal personhood is very significant. The Supreme Court has created doctrines that grant corporations rights similar to individuals. This allows a corporation to enter into contracts, own property, or sue others. However, there are notable exceptions to these rights. For instance, corporations do not have the right to proceed in court *in forma pauperis*. This means they must pay normal process fees. They also cannot hold citizenship, which is reserved for natural persons.

Courts also use "constructive" fictions to ensure laws are enforceable. Constructive notice considers a person to have received information if certain procedures, like publication, were followed. Constructive possession means a person controls property even without physical contact. There is also constructive fraud, which involves misrepresenting facts without needing a specific intent to deceive. In civil law, "in rem" jurisdiction treats property as a defendant. This can lead to unusual case titles, such as *United States v. Article Consisting of 50,000 Cardboard Boxes*.

Finally, legal fictions can be changed or removed as society evolves. In the Australian case *Mabo v Queensland*, the High Court rejected old legal authorities. Those authorities had claimed Indigenous Australians could not hold land titles. The court rejected this based on increased historical knowledge. This shows that fictions are not permanent. They rely on tradition and precedent rather than formal law. When social norms or facts change, these legal tools may be updated or discarded to ensure fairness.

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