About Me

My photo
Melfort, Saskatchewan, Canada
I am a lawyer in Melfort, Saskatchewan, Canada who enjoys reading, especially mysteries. Since 2000 I have been writing personal book reviews. This blog includes my reviews, information on and interviews with authors and descriptions of mystery bookstores I have visited. I strive to review all Saskatchewan mysteries. Other Canadian mysteries are listed under the Rest of Canada. As a lawyer I am always interested in legal mysteries. I have a separate page for legal mysteries. Occasionally my reviews of legal mysteries comment on the legal reality of the mystery. You can follow the progression of my favourite authors with up to 15 reviews. Each year I select my favourites in "Bill's Best of ----". As well as current reviews I am posting reviews from 2000 to 2011. Below my most recent couple of posts are the posts of Saskatchewan mysteries I have reviewed alphabetically by author. If you only want a sentence or two description of the book and my recommendation when deciding whether to read the book look at the bold portion of the review. If you would like to email me the link to my email is on the profile page.

Sunday, June 23, 2013

“L” is for Real Legal Fiction

While readers know legal fiction as books involving lawyers and courts there are real legal fictions used every day around the world. My post this week for “L” in the Alphabet in Crime Fiction meme hosted by Kerrie Smith at her blog Mysteries in Paradise is about actual legal fiction.

The Encyclopedia Britannica defines legal fictions as follows:

legal fiction,  a rule assuming as true something that is clearly false. A fiction is often used to get around the provisions of constitutions and legal codes that legislators are hesitant to change or to encumber with specific limitations. Thus, when a legislature has no legal power to sit beyond a certain midnight but has five hours more of work still to do, it is easier to turn back the official clock from time to time than it is to change the law or constitution.

The most common legal fiction is a corporation. At law a coporation is a form of legal person able to own property, transact business, be a party in court actions and face criminal charges. It is a legal fiction as a corporation is not a living person. Corporations were deemed persons by courts so that creditors could obtain and collect judgments agains them.

Adoption is a legal fiction. When a person or a couple adopt a child that child becomes their child. The creation of the new child is a legal fiction. The adopted child is not their biological child. They have not conceived the child. I understand adoption was created in ancient Rome to solve the problem of a family needed a male heir but lacking a male heir.

The doctrine of survival or presumption of survivorship in a common disaster is a legal fiction. Most commonly it was applied in a situation when a married couple are killed and it was not possible to determine which one was the first in time to die. By survivorship it was deemed that the younger was the survivor. The principle can be of great importance in determining what happens to an estate. To clarify what is to happen many wills have a clause that provides directions if the testator, the maker of the will, and their spouse die in a common accident. Where the principle still exists, it can be rebutted by evidence that one of the deceased lived longer than the other deceased.

In another estate situation if a beneficiary renounces, gives up a bequest, a legal fiction takes place. The beneficiary is deemed to have predeceased the maker of the will.

A controversial legal fiction has been the principle of terra nullius which held there were no property rights in land prior to European colonization. The concept was used by European nations to justify their creation of empires outside Europe. In the Mabo case in Australia the concept was rejected by the courts.

More obscure and complex legal fictions existed in English law in the past as Courts sought to do justice. An example is recounted by Frederick Schauer from the University of Virginia Law School in his 2011 article, Legal Fictions Revisited, which can be found on the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1904555:

Thus we see the classic example of Mostyn v. Fabrigas, decided by the King’s Bench court in 1774.32 Fabrigas, a resident of the Mediterranean island of Minorca then occupied and controlled by England, was imprisoned by Mostyn at the time the governor of the island. Because no suit could be brought against Mostyn in Minorca without the approval of the governor, and because the governor was the defendant in the very lawsuit Fabrigas wished to pursue, Fabrigas sued instead in the Court of Common Pleas in London for trespass and false imprisonment, and proceeded to win a jury verdict of 3000 pounds. On appeal, Mostyn claimed, correctly, that the trial court had been granted jurisdiction only in cases brought by residents of London, but Lord Mansfield, recognizing that denying jurisdiction here would leave someone who was plainly wronged without a legal remedy, concluded that Minorca was part of London for purposes of this action. That conclusion was plainly false and equally plainly produced a just result, and thus Mostyn v. Fabrigas represents the paradigmatic example of using a fiction to achieve what might in earlier days have been done through the vehicle of equity.

I do not believe I have read a work of legal fiction featuring a legal fiction. It is easy to get lost in the abstract world of legal fictions. In the end legal fictions are just as untrue as legal fiction but their acceptance at law makes the unreal to be real.


  1. Bill, thank you for a lucid explanation of the term legal fiction which, as you mention, I associate with books, especially about courtroom dramas as in the Perry Mason novels. I can see why a law background is essential to understand and explain this "abstract" term. Would you say "legal fiction" is the wrong term for books? How else would you describe it?

  2. My favorite lawyer will always be Perry Mason, no matter when, old or newer adventures, they still hold a place in TV History.

  3. What with all this talk about tcoportaitons as person inteh news these days this was rather eye openign post about the term "legal ficiotn." But I don't think I've ever used the term to describe a work of fiction that is about the law or lawyers.

    For decades the term "courtroom drama" was used to describe stories, movies and plays with a courtroom setting and I still prefer that term. But there are hundreds of books about the law and lawyers that never he enter the courtroom. Why not simply call it "lawyer fiction"?

  4. One of Elizabeth Ferrars' novels is called A Legal Fiction. I can't recall the details of the plot, only that it turns on something being one.

  5. Prashant: Thanks for the comment and kind words. You ask good questions.

    I think legal fiction is a good name for a fairly broad sub-genre in mystery fiction.

    On another name please take a look at John's comment and my reply.

  6. Scott: Thanks for the comment. Raymond Burr as Perry Mason created an indelible image. I think only Leo McKern as Rumpole can rival him as the perfect choice for the role in a T.V. series featuring lawyers.

  7. John: Thanks for the comment. I have no issue with books or movies or T.V. series being promoted as "courtroom dramas" or "lawyer fiction". I think "legal fiction" probably works better overall as many works also involve judges, court personnel and law office staff as important characters. It is ironic to me that legal fiction can have multiple meanings.

  8. Anne H.: Thanks for the comment. I am not familiar with Elizabeth Ferrars. I will take a look for A Legal Fiction.

  9. Very interesting post, Bill. I had not heard of this term, and I always like learning something new.

  10. TracyK: Thanks for the comment. I am sure your interest in learning keeps you young.