Fiction of law

Mark Twain once said “Truth is stranger than fiction, but it is because fiction is obliged to stick to possibilities; Truth isn't.”

When trying to understand the truth about the present we should seek to look at it dimensionally within time and space and spirit.

"For we know that the law is spiritual..." Romans 7:14

There is a great deal of misunderstanding about the terms fiction of law and legal fiction.

What is a Fiction of Law? It sounds like an oxymoron.

What is law and what is legal?

What is a legal fiction and how does it differ from a Fiction of law and or does it?

In countless historical debates few agree.

One of the problems is how far do you take the matter and use of fictions. This is compounded by the vanity and lust for power found in men including judges, for they are not exempt from prejudice.

One definition of a legal fiction is "an assertion accepted as true, though probably fictitious, to achieve a particular goal in a legal matter."

But in another place a legal fiction is a fact assumed or created by courts.

Because they are created by courts does not mean they are not true or void of fact. One example of a legal fiction occurs in adoption. An adoption is saying this is my son. They are not actually your son so in that sense it is not true. But it is true that you are adopting them as your son.

• A corporation treated as a legal person is a fiction because in fact they are not a living person. But they are created by people, owned by people, run by people who collectively bring in their spirit. The spirit of the people breath life into a Corporation.

A corporation has a nationality and most governments have a corporate nature to them.

There are six factors in determining the nationality of a corporation:

• the state of incorporation
• the principal seat of business
• nationality of the shareholders
• the nationality of overall investment
• the nationality of the management
• the persons controlling the business of corporation

Knowing this what is the nationality of the Corpus of Christ?

Since the time of Cain men have thought they should have the power to rule over other men.

The idea in some courts that there needs to be a "procedural" legal fiction in order that some verdict of justice may be reached is widely accepted as opposed to no judgment at all which could produce greater injustices.

The truth is that a procedural legal fiction may be a false allegation of fact and not merely an assumption. It often could not be challenged and was usually employed to enlarge jurisdiction of a professional judiciary.

Procedural legal fictions could also be used to extend judicial remedies under the pretense that a fact, if true, might lead to a desirable and just result under the existing rules of law. But all this inside a legal system created by men who want to rule over rights of others and in the pliable hands of a professional judiciary that may simply desire an expansion of power.

Power corrupts and those who seek power will soon seek more.

The problem may not be the legal fiction or fiction of law but the concentration of power in the hands of a professional judiciary who often think they should have the power of gods.

Some defined a legal fiction as "any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified."

But others like Fuller defined a legal fiction as "either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility."

How Far a Fiction

The struggle is how far can one take a legal fiction without creating more injustice than making no assumption would produce because no judgment may be reached. The assumption that the judge must produce a judgment to produce justice is to imagine that there is no God if you do not play god as judge in court.

Whether you are dealing with constructive delivery, implied provisions in contracts, or other kinds of legal presumptions the problem is not the idea or even the need but the motivation or driving spirit of those who use it.

"That the righteousness of the law might be fulfilled in us, who walk not after the flesh, but after the Spirit." Romans 8:4

Many like Jeremy Bentham despised the "original social contract" as the basis for political obligation as fiction But that was in a day before massive social programs like public education, social welfare and other political and public benefits showered upon a citizenry that devoured the rewards of an authoritarian society with great appetite instead of abiding in Proverbs 23 or the words of Jesus concerning Benefactors who exercise authority.

His arguments may be heralded by those guides who are both deft and blind to the state of society feeding off one another by sucking at the breast of wolves as Romulus and Remus. By taking benefits to which we are not naturally entitled the "original social contract" is no longer a fiction but a cognizable fact.

We have stated that "Power corrupts and those who seek power will soon seek more."

The lust for benefits at the expense of your neighbor is the lust for power over your neighbor. Benefits in the form of entitlements corrupt society and those who seek such rewards will soon seek more benefits.

Bentham raged about the "rottenness" of the legal fiction and he seemed to despise common law but that was what the common law had become by way of the apathy and sloth of the people. He thought the common law was a failure but it was the people who had failed the law. Bentham's solution was codification which would have been jumping from the frying pan into the fire for what gods will write the codes?

“Before the Norman conquest of England in 1066 the people were the fountainhead of justice. The Anglo-Saxon courts of those days were composed of large numbers of freemen and the law which they administered, was that which had been handed down by oral tradition from generation to generation. In competition with these non-professional courts the Norman king, who insisted that he was the fountainhead of justice, set up his own tribunals. The judges who presided over these royal courts were agents or representatives of the king, not of the people; but they were professional lawyers who devoted most of their time and energy to the administration of justice, and the courts over which they presided were so efficient that they gradually all but displaced the popular, nonprofessional courts.”

Fiction of virtue

One must take back their responsibility to be a government of the people tending to the weightier matters or their liberty will become a fiction.

“If Virtue and Knowledge are diffused among the People, they will never be enslaved. This will be their great Security”

“Dependence begets subservience and venality, suffocates the germ of virtue, and prepares fit tools for the designs of ambition.”2

“When we are planning for posterity, we ought to remember that virtue is not hereditary.”

“While the people are virtuous they cannot be subdued; but when once they lose their virtue then they will be ready to surrender their liberties to the first external or internal invader.”

Neither the people of America nor the States they instituted created or legally ratified the Constitution. While the states did adopt that document many years ago the march of history has changed the course of mankind.

Edmond Pendleton, who debated Patrick in his opposition to the phrase “We the People”, stated, “Permit me to ask the gentleman who made this objection, who but the people can delegate powers? Who but the people have the right to form government?”.

The term federal is from Latin faedus, a league by contract derived from an agreement between parties or nations.

Originally the parties to the constitution was only the states. That covenant and league simply did not include the average citizens of the states or their inhabitants.

“It is certainly true that a popular government cannot flourish without virtue in the people.”

The Constitution is often an icon of popularity in the minds of the people today, but the covetous souls of mankind have formed a government by the action and inaction of an indulgent population, by covetous participation and application, by slothful acceptance and acquiescence for more than two hundred years.

There can be no liberty without virtue.

Legal Fiction

An assumption that something occurred or someone or something exists which, in fact, is not the case, but that is made in the law to enable a court to equitably resolve a matter before it.

In order to do justice, the law will permit or create a legal fiction. For example, if a person undertakes a renunciation of a legacy which is a gift by will the person will be deemed to have predeceased the testator—one who makes a will—for the purpose of distributing the estate.

A common example of a legal fiction is a corporation, which is regarded in many jurisdictions as a "person" who has many of the same legal rights and responsibilities as a natural person.

The rights being legal are created by terms of contracts and therefore regulated as a privilege more than a natural right.

Legal fictions are mostly encountered under common law systems. Those systems are legal systems that usually begin with a legal constitution, contract or covenant amongst people. But the original common law the product of justice came directly from a jury of freemen who decided fact and law. These men, when they prized both their liberty and the responsibilities correlative to its enjoyment, produced justice with a minimal reliance on fictions of law.

The professional judiciary may or may not indulge in the same virtues for they are mercenaries to the battle for justice and have demonstrated an equal desire for profit in their pursuit of justice by taking pay for the fulfillment of a natural responsibility.

Other working examples of legal fiction are commonly used to resolve contracts such as the doctrine of survival used to create a legal fiction. If two people die at the same time such as a car crash or in a manner that renders it impossible to tell who had died first, the older of the two is considered to have died first, subject to rebuttal by evidence demonstrating the actual order of death.

You could literally argue that the older sat in the back seat or injuries were slightly less traumatic which might suggest that he did not die first.

A legal fiction is just a way to resolve contracts and the relations they create when the facts necessary to determine pure equity are undetermined. When trying to understand legal fictions we need to realize that all contracts are not written. Some are based on our actions and may be assumed or even presumed based on constructions through the examination of facts and or information we do have.

An example of this is the use of character witnesses that have no knowledge of the case but may present evidence that goes to the determination of whether there was criminal intent based on the good character of the accused in the past.

The common law had a procedure whereby title to land could be put in direct issue by a "writ of right". When facts to support the writ were not available or a judge could not be agreed upon the parties could resort to trial by combat. The legal sanction of Wager of battle was abolished in England in 1819 Dueling was still available for some time to settle issues. The truth is whole nations still avail themselves of this remedy producing monstrous wars.

Examples

In reading these examples note that legality is about agreements and contractual relationships, not about the rule of right or righteousness except in relationship to agreements whether written or constructed.

Pacta servanda sunt, Agreements must be kept.

• Asset Forfeiture - The USA PATRIOT Act employs a legal fiction to give U.S. authorities seizure power over the funds of foreign banks held in U.S. interbank accounts. If the U.S. government believes that illegal proceeds have been deposited in the foreign account of a foreign bank, it assumes those proceeds to have been deposited in an interbank account held in the United States. The government may then seize the funds from the interbank account. It need not establish that the funds are directly traceable to funds deposited into the foreign financial institution from whose account they were seized.
• A legal fiction should not be employed to defeat law or result in illegality: it has been always stressed that a legal fiction should not be employed where it would result in the violation of any legal rule or moral injunction. In Sinclair v. Brougham 1914 AC 378 the House of Lords refused to extend the juridical basis of a quasi-contract to a case of an ultra vires borrowing by a limited company, since it would sanction the evasion of the rules of public policy forbidding an ultra vires borrowing by a company. In general, if it appears that a legal fiction is being used to circumvent an existing rule, the courts are entitled to disregard that fiction and look at the real facts. The doctrine of "piercing the corporate veil" is applied under those circumstances.
• Legal fiction should operate for the purpose for which it was created and should not be extended beyond its legitimate field.
• Legal fiction should not be extended so as to lead unjust results. For example, the fiction that the wife's personality is merged in that of the husband should not be extended to deny to the wife of a disqualified man the right to an inheritance when it opens. The wife of a murderer can succeed to the estate of the murdered man in her own right and will not be affected by the husband's disqualification.
• There cannot be a fiction upon a fiction. For example, in Hindu law, where a married person is given in adoption, and such person has a son at the time of adoption, the son does not pass into his father's adoptive family along with his father. He does not lose his gotra [lineage] and right of inheritance in the family of his birth. The second example would be that the adopted son would by a fiction be a real son of the adoptive father and his wife associated with the adoption. But to say that he will be the real son of all the wives of the adoptive father is a fiction upon fiction.

A legal fiction as a noun is a presumption of fact assumed by a court for convenience, consistency, or to achieve justice. There is an old adage: "Fictions arise from the law, and not law from fictions."

"A presumption is a deduction which the law expressly directs to be made from particular facts." (Code Civ. Proc., sec. 1959.) And "a presumption (unless declared by law to be conclusive) may be controverted by other evidence, direct or indirect: but unless controverted, the jury is bound to find according to the presumption." (Code Civ. Poc., sec. 1961 .) In re Bauer (1889), 79 Cal. 304, 30.

Juggling all these ideas together can cause people to argue in error while attempting to defend what they believe to be their rights because they think that legal fictions are not valid and have no authority. They have some times done this while granting a cognizable jurisdiction when they are arguing against a jurisdiction based on their assumption that the courts authority extends from a legal fiction alone.

Remember that a corporation which is very real is also a legal fiction. The corporation is a result of contract which are based on the right of the people to create a binding agreement. Rights granted or even secured by a corporation or any other fiction draws the claimant into the jurisdiction of the corporation and its contract.

Protection draws subjection and subjection protection.

It is not the fiction that binds us but the our willingness to covet our neighbors goods and labor for our personal benefit and reword, our sloth, and our application for protection and welfare of the men who call themselves Benefactors but who exercise authority.

FICTION OF LAW

Bovier's Dictionary

1. The assumption that a certain thing is true, and which gives to a person or thing, a quality which is not natural to it, and establishes, consequently, a certain disposition, which, without the fiction, would be repugnant to reason and to truth. It is an order of things which does not exist, but which the law prescribe; or authorizes it differs from presumption, because it establishes as true, something which is false; whereas presumption supplies the proof of something true. Dalloz, Dict. h. t. See 1 Toull. 171, n. 203; 2 Toull. 217, n. 203; 11 Toull. 11, n. 10, note 2; Ferguson, Moral Philosophy, part 5, c. 10, s. 3 Burgess on Insolvency, 139, 140; Report of the Revisers of the Civil Code of Pennsylvania, March 1, 1832, p. 8.

2. The law never feigns what is impossible fictum est id quod factum non est sed fieri potuit. Fiction is like art; it imitates nature, but never disfigures it, it aids truth, but it ought never to destroy it. It may well suppose that what was possible, but which is not, exists; but it will never feign that what was impossible, actually is. D'Aguesseau, Oeuvres, tome iv. page 427, 47e Plaidoyer.

3. Fictions were invented by the Roman praetors, who, not possessing the power to abrogate the law, were nevertheless willing to derogate from it, under the pretence of doing equity. Fiction is the resource of weakness, which, in order to obtain its object, assumes as a fact, what is known to be contrary to truth: when the legislator desires to accomplish his object, he need not feign, he commands. Fictions of law owe their origin to the legislative usurpations of the bench. 4 Benth. Ev. 300.

4. It is said that every fiction must be framed according to the rules of law, and that every legal fiction must have equity for its object. 10 Co. 42; 10 Price's R. 154; Cowp. 177. To prevent, their evil effects, they are not allowed to be carried further than the reasons which introduced them necessarily require. 1 Lill. Ab. 610; Hawk. 320; Best on Pres. §20.

5. The law abounds in fictions. That an estate is in abeyance; the doctrine of remitter, by which a party who has been disseised of his freehold, and afterwards acquires a defective title, is remitted to his former good title; that one thing done today, is considered as done, at a preceding time by the doctrine of relation; that, because one thing is proved, another shall be presumed to be true, which is the case in all presumptions; that the heir, executor, and administrator stand by representation, in the place of the deceased are all fictions of law. "Our various introduction of John Doe and Richard Roe," says Mr. Evans, (Poth. on Ob. by Evans, vol. n. p. 43,) "our solemn process upon disseisin by Hugh Hunt; our casually losing and finding a ship (which never was in Europe) in the parish of St. Mary Le Bow, in the ward of Cheap; our trying the validity of a will by an imaginary, wager of five pounds; our imagining and compassing the king's death, by giving information which may defeat an attack upon an enewy's settlement in the antipodes our charge of picking a pocket, or forging a bill with force and arms; of neglecting to repair a bridge, against the peace of our lord the king, his crown and dignity are circumstances, which, looked at by themselves, would convey an impression of no very favorable nature, with respect to the wisdom of our jurisprudence." Vide 13 Vin. Ab. 209; Merl. Rep. h. t.; Dane's Ab. Index, h. t.; and Rey, des Inst. de I'Angl. tome 2, p. 219, where he severely cesures these fictions as absurd and useless.

Modern Legal definition

The assumption that a certain thing is true, and which gives to a person or thing a quality which is not natural to it, and consequently establishes, a certain disposition, which, without the fiction, would be repugnant to reason and to truth. It is an order of things which does not exist, but which the law prescribes or authorizes. It differs from presumption because it establishes as true, something which is false; whereas presumption supplies the proof of something true.

The law never feigns what is impossible. Fiction is like art; it imitates nature, but never disfigures it. It aids truth, but it ought never to destroy it. It may well suppose that what was possible, but which does not exist; but it will never feign that what was impossible actually is.

Fictions were invented by the Roman praetors who, not possessing the power to abrogate the law, were nevertheless willing to derogate from it under the pretence of doing equity. Fiction is the resource of weakness which, in order to obtain its object, assumes as a fact what is known to be contrary to truth: when the legislator desires to accomplish his object, he need not feign, he commands. Fictions of law owe their origin to the legislative usurpations of the bench.

It is said that every fiction must be framed according to the rules of law, and that every legal fiction must have equity for its object. To prevent their evil effects, they are not allowed to be carried further than the reasons which introduced them necessarily require.

The law abounds in fictions. That an estate is in abeyance; the doctrine of remitter, by which a party who has been disseised of his freehold and afterwards acquires a defective title, is remitted to his former good title; that one thing done today, is considered as done at a preceding time by the doctrine of relation; that because one thing is proved, another shall be presumed to be true, which is the case in all presumptions; that the heir, executor, and administrator stand by representation in the place of the deceased are all fictions of law. "Our various introduction of John Doe and Richard Roe; our solemn process upon disseisin by Hugh Hunt; our casually losing and finding a ship (which never was in Europe) in the parish of St. Mary Le Bow, in the ward of Cheap; our trying the validity of a will by an imaginary wager of five pounds; our imagining and compassing the king's death, by giving information which may defeat an attack upon an enemy's settlement in the antipodes; our charge of picking a pocket or forging a bill with force and arms; of neglecting to repair a bridge, against the peace of the king, his crown and dignity are circumstances, which, looked at by themselves, would convey an impression of no very favorable nature, with respect to the wisdom of our jurisprudence."

Law
Law | Natural Law | Legal title | Common Law |
Fiction of law | Stare decisis | Jury | Voir dire |
Consent | Contract | Parental contract | Government |
Civil law | Civil Rights | Civil Government | Governments |
No Kings | Canon law | Cities of refuge | Levites |
Citizen | Equity | The Ten Laws | Law of the Maat |
Bastiat's The Law and Two Trees | Trees |
The Occupy Refuge Movement | Clive Bundy | Hammond |
Barcroft | Benefactors | Gods | Jury | Sanhedrin |
Protection | Weightier matters | Social contract | Community Law |
Perfect law of liberty | Power to change | Covet | Rights |
Anarchist | Agorism | Live as if the state does not exist |

== Footnotes ==

About the author

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  Brother Gregory
  White Rock

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