What is a “legal fiction”?

September 16, 2021


2 min read

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The term “legal fiction” can be traced all the way back to ancient Rome where there was a strict requirement that every family needed a male heir. In the absence of a male heir, the legal fiction of adoption was used to circumvent the situation. A legal fiction can be defined as a “statement which is accepted as true in a legal context, but is not necessarily true or in fact proven” and is usually applied by the courts.  At first, it may seem shocking to think that the courts have adopted a principle which seeks to overcome legal obstacles by simply denying their existence, but its application to various bewildering legal issues has shown its uses and misuses.


In the Middle Ages, the former Court of the King’s Bench, which had exclusive jurisdiction over criminal cases, wished to extend its jurisdiction to civil cases. To do so, the court created the Bill of Middlesex which allowed it to take on civil cases typically heard by the former Court of Common Pleas. The court would claim that the defendant committed trespass, a criminal offence in Middlesex, but then drop this legal fiction and substitute it for the true civil claim which would involve, for example, a debt owed. This proved quite beneficial because when the civil courts were overburdened, the King’s Bench could simply take on cases by pursuing the legal fiction that the defendant was arrested and in custody, when in fact they were not. 

The Middle Ages also saw the development of the infamous John Doe via legal fictions, specifically in relation to property claims. Back then, the defendants could insist on trial by combat to resolve the situation. However, as this was not exactly ideal, the claimants devised a legal fiction involving two fictional parties, John Doe and Richard Roe to avoid such trial by combat and instead pursue a trial by jury. 

A more modern example of a legal fiction in action is the doctrine of survival. In situations where two people die and it is impossible to assess who died first in relation to inheritance, a legal fiction is applied whereby the oldest of the two is deemed to have died first even though it may not be true. 

The topic of legal fictions has been hotly debated among scholars. The 18th-century judge Sir Willam Blackstone believed that such fictions were “highly beneficial and useful” as they remedy legal inconveniences. They have also been said to simplify the law. English Philosopher, Jeremy Bentham, was a fierce critic of this concept, describing them as “falsehoods” and “syphilis”. Bentham even proclaimed that whichever judge made such fictions should be sent to jail!


Despite the clear divisions in opinion on legal fictions, they are not as common today. The courts have now tended to stray away from applying legal fictions. For example, in 2007, Lord Nicholls proclaimed that the English legal system has “outgrown the need for legal fictions”. This may be because the world has become more fact and truth reliant in the pursuit of justice and, therefore, legal fictions may have passed their expiry date.

Report written by Dan Furniss

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