Fiction of Lawillusion of law
This reinterpretation of the history of common law is based on what we call legal fiction.
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Juridical fiction is a fact accepted or established by courts, which is then used for making decisions or for the application of a norm. It is used almost entirely in ordinary law courts and in England in particular. Usually a fiction allows the courts to disregard a fact that would hinder them from exerting their authority merely by presuming that the fact is different.
That is the case with the Bill of Middlesex, where the Courts of King's Bench was only competent for cases that took place in the historical British province of Middlesex. In order for the tribunal, which was the country's main tribunal, to assume responsibility for other cases, the defendants began to argue that, in addition to the other facts, there had also been an offence in Middlesex.
The King's Bench was thus able to decide on the whole case. Juridical fiction differs from juridical assumptions that accept a certain fact until the opposite is proven, such as the assumption of legality. On the other hand, juridical fiction can be seen in a law that recognizes "virgin birth", i.e. a baby conceived by an unwed baby has no hereditary, biologic or psychologic pa.
These are different from theoretical instances, such as the "rational person" who serves the courts as a tool for expressing its arguments. It also differs from basic law which creates a state of law that differs from the facts on which it is based, such as the entrepreneurial personality, although these are sometimes mistakenly referred to as[quote required] juridical notions.
It was this simplicity that allowed companies to buy and grow riches and become the organization of choice for companies of all shapes and size. Others have argued that business personality is no longer fiction; it just means that "person" now has a broader significance for some legitimate uses than before and that it is still in non-legal use.
A draftsman can differentiate between a "person" and a "natural person" in jurisdiction that uses this fiction in order to determine the area of application of the law. Legislative conventions say that it can, but according to what criterions? Similarly, a broadcaster in the United States has a licensed lawful town which does not necessarily reflect the geographical area of its studio or the markets for which the broadcaster's program is made.
It is also an example of judicial fiction. 11 ] In the United States, many courts have repealed the law fulfilling the principle of surviving; see Uniform Simultaneous Death Act. Similar, albeit more complex juridical fiction included pleas in the general law expulsion suit with which the right of ownership of immovable properties was negotiated.
There was a process under ordinary law in which the right of ownership of real estate could be directly enforced, the so-called "writ of right". There was no challenge to the fiction of Doe, Roe and the lease agreements unless they wanted to put their lives and security on the line in battle. The Court of Appeal's competence in England was expanded to all kinds of cases of debt by means of a mere fiction of a juridical nature.
Initially, the Treasury was a tribunal with a specialised judicial system that included tax and other duties towards the Crown. There was little competence for personal affairs between the parties to the proceedings. As a result, the Treasury had a much smaller number of cases than the King's Bench and other English tribunals. Prosecutors who brought an appeal before the Treasury Tribunal for a guilt had to invoke the fact that they owe the King monies that they could not afford because their debtors themselves had wrongly refused to make it.
The guilt due to the King turned out to be a fiction, as the initial defendant was not authorized to contest this assertion in order to expel the Treasury from justice. By using this trick against the defendant, the party could take its case to a lower number of cases.
Bill of Middlesex was a juridical fiction used by the Court of King's Bench to obtain competence in cases that historically fall within the Court of Commons' competence. The bill, which was based on the King's Bench's residual tribunal over the Middlesex district, permitted it to accept cases that conventionally fall within the purview of other tribunals by alleging that the accused had broken the peace in Middlesex.
A further fiction is the withdrawal from the UK parliament. There was a proclamation in 1623 that Members of Parliament had confidence in the representation of their electoral districts and therefore did not have the freedom to step down from them. A deputy who took an "office of profit" from the Crown (including being appointed minister), however, was under an obligation to vacate the House and run for re-election, fearing that his autonomy would be jeopardised if he were in the King's wage.
That is why it was fictional that the deputy who wanted to stop applying to the King for the position of "Steward of the Chiltern Hundred" or "Steward of the Manor of Northstead" without customs duty or incomes, but still for a legal position of profits in the King's offering. Through the law or through reform of the civilian process, the costly fiction of Roe's abandoned hind was eliminated in all case-law.
Although the theory of surviving still exists in England, it was repealed in many US states by the Uniform Simultaneous Death Act. Even juridical fiction, such as the High Court of Australia's refusal of Mabo' s teaching of tera zeroius, the juridical fiction that there were no ownership laws on lands in Australia before the colonisation of Europe, was dismissed as violating a state.
Since it is not known which of the parents will die first, a juridical fiction is used that claims that the man, who is a man and therefore strong, has been living longer. As a result of this ruling, the will of the fathers determines the lawful custodian of Peter. But later in the novel, a testimony to the incident explains that the woman staggers some period after the father's disappearance, and so the juridical fiction is lifted and the mother's will is followed, whereby Peter is given a new lawful custodian.
Hope Mirrlees' novel Lud-in-the-Mist (1926) focuses on the idea of juridical fiction as a worldly replacement for sacred enigmas and magic delusions. Among the novel's juridical fiction are the reference to fairies, which are off limits, as interwoven silks so that the law can govern them, and the statement that members of the Senate of the land "are deceased in the sight of the law" to get them out of power, since the legislators are serving for lifetime.
Juridical fiction derives its legality from traditions and precedence and not from its status as a document. In the past, many juridical fiction was established as ad-hoc means to deal with a hard or unexpected windfall. Over the course of the ages, agreements and practice have given a certain amount of instability to both the institutions of juridical fiction and certain juridical fiction (such as adoption and business personalities), which have been asserted time and again in court-precedence.
Whereas the judiciary has some room for manoeuvre in the use of juridical fiction, some general proposals on the adequacy of the use of juridical fiction can be formulated as follows: Juridical fiction should not be used to beat the law or lead to illegality: it has always been emphasized that juridical fiction should not be used where it would lead to a breach of a law or a morality order.
Generally, if it seems that a juridical fiction is used to evade an established law, the court has the right to ignore that fiction and to consider the true facts. The fiction of the law should work for the purposes for which it was designed and not be expanded beyond its legitimacy.