A classic example of legal fiction is that English courts (which have no legislative power, but have nevertheless developed most of the common law) do not “create” a new law, but simply “explain” the common law that has existed since time immemorial.  Henry Maine argued that legal fictions appear to be a clever outgrowth of the law that the legislation was supposed to suppress. Jeremy Bentham has sharply criticized the notion of legal fiction, saying that “fiction is to the law what fraud is to commerce.”   Another legal fiction is the resignation of Parliament in the United Kingdom. In 1623, a rule was promulgated stating that MPs had the confidence to represent their constituencies and were therefore not free to terminate it. At that time, the parliament was compared to the 21. Service was sometimes seen as a disgruntled duty rather than a position of power and honor. However, a deputy who accepted a “charge of earnings” from the crown (including an appointment as a minister) was forced to leave the house and be re-elected, fearing that his independence would be compromised if he was at the king`s salary. Therefore, the device was invented that the deputy who wanted to resign asked the king for the position of “Steward of the Chiltern Hundreds” or “Steward of the Manor of Northstead”, without rights or income, but legally a function of gain in the king`s gift. The first MP to use the Chiltern Hundred to leave Parliament was John Pitt in 1751. The requirement for ministers to re-elect was abolished, but the “Centaines-Chiltern” mechanism was retained to allow MPs to resign. Legal fictions derive their legitimacy from tradition and precedent rather than from formal status as a source of law. In the past, many legal fictions have been created as an ad hoc remedy to deal with a difficult or unforeseen situation. Over the centuries, conventions and practices have brought some stability to the institution of legal fictions and specific legal fictions (such as adoptions and legal personality) that have been invoked repeatedly in current jurisprudence.
Although the judiciary retains discretion in the use of legal fictions, some general suggestions on the appropriateness of using legal fictions could be expressed as follows: An example of legal fiction occurs in adoption. Once an adoption order or order (or similar court order) is registered, one or both of the biological (or natural) parents become legal strangers to the child, no longer have a legal relationship with the child and no longer have rights towards the child. Conversely, the adoptive parents are legally considered to be the parents of the adopted child. A new birth certificate reflecting this is issued, which is a legal fiction.  The elaborate fiction of poor Doe being made homeless by Roe has been abolished by law or by reforms of civil procedure in all common law jurisdictions. Doe and Roe`s cases as guardians of unnamed parties seeking to sue, or the names of unknown parties, will continue in some jurisdictions (but not England). The doctrine of survival, although it still exists in England, has been abolished in many American states by the Uniform Simultaneous Death Act. Legal fictions have also been declared invalid as contrary to public policy, as in the High Court of Australia`s rejection of the doctrine of terra nullius in the Mabo cases, the legal fiction that there were no land ownership rights in Australia prior to the time of European colonisation. The term “legal fiction” is sometimes used pejoratively. Jeremy Bentham was a famous historical critic of legal fiction.   Proponents of legal fictions, particularly their historical use (for example, before DNA evidence could give a child the right to have both genetic parents easily identified), identify legal fictions as “scaffolding around a building under construction.”  The Bill of Middlesex was a legal fiction used by the Court of King`s Bench to gain jurisdiction over cases traditionally within the jurisdiction of the Court of Common Pleas.
The bill built on the King`s Bench`s remaining criminal jurisdiction over Middlesex County and allowed it to take over matters traditionally within the jurisdiction of other common law courts by alleging that the defendant had committed an intrusion into Middlesex. Once the defendant was in custody, the trespassing charge was silently dropped and other claims (such as debts or arrears) were replaced. In H. G. Wells` novel Joan and Peter (1918), Peter`s parents die in a shipping accident. Since it is not known which parent dies first, a legal fiction is applied, which asserts that the husband, who was a man and therefore stronger, lived longer. This decision leads to the fact that the father`s will determines Peter`s legal guardian. Later in the novel, however, a witness to the accident explains that he sees the mother wavering some time after her father`s disappearance, and so the legal fiction is overturned and the mother`s will is followed, giving Peter a new legal guardian. Wells was wrong about English law, which instead assumes that the elderly person died first. A similar, though more complicated, legal fiction concerned pleadings in the common law eviction action for ownership of real property. The common law has a procedure by which ownership of land can be directly challenged, called a “writ as of right.” A disadvantage of this procedure, however, was that the defendant could, after his election, insist on a trial by “battle bet”, that is, by a combat procedure, a duel sanctioned by the court. Most of the plaintiffs were not prepared to risk their lives and physical integrity at the risk of fighting, so the proceedings fell into oblivion.
On the contrary, the pleadings told a detailed story of how a John Doe had leased land from the plaintiff, but had been replaced by Richard Roe, who claimed a lease contrary to the defendant. These events, if true, led to the “Assizes of the Disséisin Novel,” later dubbed “mixed action in sputum,” a process in which the title could ultimately be determined, but instead culminated in a jury trial. This is the origin of the names John Doe, Richard Roe and so on for anonymous parties. The fiction of Doe, Roe and the leases has not been challenged by the parties, unless they want to risk their lives and safety in a lawsuit through wrestling. In fact, the battle in England was not abolished until 1819, although it was no longer used by the end of the thirteenth century. You might be interested in the historical significance of this term. Browse or search for a historical law novel in the Encyclopedia of Law. Legal fictions are different from legal presumptions that assume a specific fact, such as the presumption of legitimacy, until proven otherwise. On the other hand, a legal fiction can be seen in laws that recognize “virgin birth,” meaning that a child born to a single mother has no genetic, biological, or psychological father. They differ from hypothetical examples such as the “reasonable person,” which serve as tools for the court to express its reasoning. [clarification needed] They also differ from legal principles that create a different legal state from the underlying facts, such as the personality of the company, although these are sometimes mistakenly called legal fictions.