Legal fiction

In the common law tradition, legal fictions are suppositions of fact taken to be true by the courts of law, but which are not necessarily true. They typically are used to evade archaic rules of procedure or to extend the jurisdiction of the courts in ways that were considered useful, but not strictly authorized by the old rule.

Another way of understanding a legal fiction is to say that it is a technique somebody uses in order to benefit from a legal rule which was not necessarily designed to be used in that way. For example, the UK Parliament's rules specify that a person cannot resign from office, but the law also states that a Member of Parliament appointed to a paid office of the Crown must either step down or stand for reelection. The second rule is used to circumvent the first rule.

Legal fictions were used by courts prior to the existence of handling offences. In a situation where A sells stolen property to B, B can then be accused of handling stolen property. Legal fiction has been used to declare that: as A did not have the power to sell the property to B, B was considered to have also stolen the property, and was therefore guilty of theft himself.

The term "legal fiction" is not usually used in a pejorative way in spite of the negative connotation of the phrase, and have been characterized as scaffolding around a building under construction.




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