The Law’s Imaginary Playbook: Navigating Legal Fictions

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A legal fiction is a make-believe rule created by the law.  Legal fictions are like shortcut rules or assumptions that help the law deal with cases more smoothly, even if they do not exactly reflect what is happening in the real world.  They are used to fill gaps in the law, resolve uncertainties, or adapt the law to new situations. 

What is a legal fiction?

While some are used more than others, countless legal fictions exist such as the legal fiction of a corporation or the standard of care of “a reasonable prudent person.”  The Legal Information Institute defines legal fiction broadly as, “an assumption and acceptance of something as fact by a court, although it may not be true, to allow a rule to operate or be applied in a manner that differs from its original purpose while leaving the letter of the law unchanged.”

Where did legal fictions come from?

The origin of legal fictions can be traced back to ancient legal systems and has evolved over centuries.  It is challenging to pinpoint a specific time or place of its origin, but legal fictions have been a recurring feature in various legal traditions.

Legal fictions have roots in Roman law, where the concept of “fiction” (fictio) was employed to achieve certain legal goals.  Roman jurists, such as Gaius, used legal fictions in their writings to address legal issues.  An example involves an individual who should have acquired land through the death of a family member who had not claimed him as a son.  Since he was not the legal heir, he lacked direct entitlement to the deceased’s property or outstanding debts.  To address this, he initiated legal proceedings as a fictitious heir (ficto se herede), and the legal formula was adjusted accordingly to accommodate this fiction.  Legal fictions continued to develop during the medieval period in Europe.  The use of legal fictions gained popularity in the works of medieval jurists like Gratian, who compiled the influential canon law collection “Decretum Gratiani.”

In the common law system, legal fictions have been utilized to adapt to changing circumstances and address gaps in legislation. English common law, with its emphasis on precedent and flexibility, incorporated legal fictions into its legal system to achieve justice.  One notable instance of its usage is the case of Fabrigas v. Mostyn (1773), where Lord Mansfield determined that Minorca was considered to be in London, even though Minorca was physically not there, for the purpose of establishing jurisdiction in the lawsuit.  Legal fictions played a role in these equity courts, as reflected in Fabrigas, to provide fairness and justice when the common law fell short.  Equitable remedies, found through the use of legal fictions, often involve creative legal constructs to achieve just outcomes.

How are legal fictions used today?

Modern legal systems continue to use legal fictions to address emerging challenges and facilitate the resolution of complex issues.  Here are some modern-day examples of the usage of legal fictions:

Corporate Personhood: The concept of treating corporations as legal persons is a classic example of a legal fiction.  Corporations, despite being artificial entities, are treated as legal persons with the capacity to enter into contracts, sue, and be sued.  This legal fiction allows businesses to operate within the legal framework.

Digital Contracts and Signatures: In the digital age, legal fictions are employed to validate electronic contracts and signatures.  Many laws recognize electronic signatures as equivalent to handwritten signatures, enabling the legal recognition of agreements made online.

Data Protection Laws: The legal concept of personal data as a property right involves a certain level of legal fiction.  Privacy laws treat personal data as an entity with inherent value, allowing individuals to control its use and granting them certain rights over their data.

International Treaties and Agreements: Legal fictions are sometimes employed in international law to address issues of statehood, recognition, and jurisdiction.  For instance, recognition of governments in exile or the legal fiction of diplomatic immunity helps facilitate international relations.

Environmental Protection Laws: Some environmental regulations use legal fictions to attribute liability or responsibility for environmental harm.  For instance, the legal fiction of a “responsible party” may be created to ensure that someone is held accountable for environmental damage.

These examples illustrate how legal fictions continue to play a crucial role in adapting the law to contemporary challenges, accommodating technological advancements, and providing legal solutions in areas where traditional legal categories may fall short.

What are some limitations and criticisms of legal fictions?

While legal fictions serve these important purposes, their use is not without controversy.  Critics argue that they may obscure legislative intent, erode legal certainty, or be susceptible to abuse.  Critics, such as Jeremy Bentham and John Gwilliam, argue that legal fictions may, at times, lead to unjust outcomes.  In situations where the fictional assumption deviates significantly from the facts, applying the fiction rigidly may result in decisions that are perceived as unfair or unreasonable.  Legal fictions can introduce complexity and confusion into the legal system.  The use of fictional constructs may make legal reasoning more convoluted, creating challenges for legal practitioners, litigants, and the general public to understand and navigate the law.  Critics contend that using fictions to fill gaps or address ambiguities may result in outcomes that lawmakers did not foresee or intend when crafting legislation.

While legal fictions have their limitations and criticisms, their judicious use can still contribute to the adaptability and flexibility of legal systems.  Proponents emphasize their utility in promoting justice, adapting to societal changes, and providing practical solutions to legal challenges.  The overall purpose of legal fictions is to make the law more responsive, adaptable, and equitable in the face of evolving circumstances.  Balancing the benefits and drawbacks requires careful consideration and scrutiny of how legal fictions are employed in specific contexts.


In conclusion, legal fictions serve as an adaptable tool within the realm of jurisprudence, enabling the legal system to address complexities and uncertainties.  Despite their inherently artificial nature, these constructs play a vital role in achieving justice.  By allowing for pragmatic solutions to intricate legal scenarios and adapting to evolving societal needs, legal fictions demonstrate the adaptive nature of the law.  As we navigate the ever-changing landscape of legal interpretation, it becomes evident that the strategic deployment of legal fictions is not merely a historical artifact but a continuous and indispensable facet of the legal framework.

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About Kenzey Tracy (2 Articles)
Kenzey Tracy is a second-year student at Campbell University School of Law and is a Staff Writer for the Campbell Law Observer. Originally from Maine, Kenzey graduated from Wake Forest University with Bachelor’s degrees in Sociology and English. In her free time, Kenzey enjoys playing with her pet rats and thrifting. Kenzey’s areas of interest include the Wills, Estates, Elder Law, and Probate.