By 

Muhammad Majid Bashir -Advocate

Ms.Zarmala Tashfeen-Advocate

 

 

By way of introduction, the use of legal fictions is controversial in the sense that it gives judges a method of changing the law and often goes against the requirement of principled decision making, it is of immense use to the legal system as it helps overcome rigidity and provides a foundation for communication between courts. 

By  providing a definition of legal fictions and will then proceed to assess the criticisms against the use of legal fictions, and ultimately contend that these criticisms are a product of understanding legal fictions in a negative way. One they are understood as devices that aid in helping the legal system evolve over time, and allow for flexibility, legal fictions appear to be of considerable importance to the legal system as a whole. 

The most apt definition of legal fictions can be said to be “any suspension of one or more of the required operative facts leading to the imposition of an associated normative consequence, whether this suspension is introduced because of (1) the absence of proof of some required fact; or (2) the presence of proof to the contrary”.

Adopting and understanding this definition of  legal fictions in itself mitigates the many criticisms that attach to legal fictions by absolving legal fictions of the requirement of falsity; instead it centres around the absence of proof. The word “suspension” of fact helps differentiate legal fictions from assumptions, as defined by Olivier and false – statements, as defined by Fuller.

 

 

Having provided a definition of legal fictions, the essay will now turn to assessthe many criticisms that have sprung up against the use of fictions. The main criticism, which is also the focus of this essay, is that the use of legal fictions results in lack of principle. When judges engage in legal fictions, they fail to provide justified reasons for their decisions, which ultimately means that they have failed in their roles as decision makers. Peter Birks regards fictions as a method of avoiding principled justification and Sir John Baker asserts that it is not the deceptive quality of fiction that is the issue, rather it is the ability of it to replace correct legal reasoning which is the issue.

Jeremiah Smith takes the view that the use of fictions, by failing to provide principled reasons, makes the law technical and difficult to understand and apply. This line of critique follows, albeit in a lighter tone, the attitude of Sir Jeremy Bentham towards legal fictions. He regarded them as a form of deception, a tool used by lawyers and judges to deliberately over complicate the law so that it is difficult for the public to understand the law, and in turn generate business for them. 

Another major criticism is the argument put forward by Roscoe Pound, that legal fictions are useful but only in an immature legal system. Pound sees fictions as only appropriate in immature legal systems, or systems that are still progressing, where ideas are few and crude but that once a system has gained maturity and has developed, the use of fictions is no longer suitable.

He asserts that “after a certain stage of legal development, fictions retard growth and clog development”. His argument is very similar to that of Sir Henry Maine who regards fictions as invaluable instruments to overcome the rigidity of law, but that its use is confined to a progressing system. Pound goes on to state that fictions ‘conceal the substance’ and the use of legal fictions implies a ‘lack of general ideas’, a similar argument made by Olivier.

The issue with this argument of immaturity, and the ones mentioned prior, is crucial as it stems from the perception that the function of fictions is to introduce new rules instead of perceiving fictions as having a very significant role in shaping a legal system over time, by providing a platform for communication between courts, to assess the implications of cementing a new rule before actually introducing one. Failure to see fictions in this light is the reason why many of the arguments against the use of fictions have arisen. Once fictions are seen in a different light, as instrumental tools for the continuous and incremental change of the legal system, these arguments appear to subside. 

Furthermore, the argument that once a legal system reaches a point of “maturity”, legal fictions cease to be of any use, is flawed to a certain extent. The law can never really reach a point of being fully orderedin Hutchinson’s words, the law “is never complete or finished”.The law is constantly evolving and changing to adapt to different times and attitudes; it is a “domain of possibilities” which involves exploring and experimenting the potential for change through the adoption of new principles in the law. Legal fictions are the tools used to do this, and therefore to call it a thing of the past is to deny its role in shaping the legal system over time. 

A further defence of legal fictions in this context comes from Oliver Wendell Holmes who argues that the law is inevitably inconsistent, and that it is continuously growing. Therefore, it is not the use of fictions that brings a degree of discrepancy into the law, rather it is the very nature of the law itself that renders it full of such inconsistencies because of the constant change it undergoes.

Moreover, as far as the argument criticising legal fictions of going against the requirement of principled justifications is concerned, there are a number of arguments to the contrary that show how important legal fictions are to common law adjudication. The very nature of common law adjudication is that judges, when changing the law, must exercise immense caution and must do so through small incremental changes, and through communication between the courts. There is a difference between the courts and the legislature for good reason. The reasoning process exercised by the courts is different from that exercised by the legislature. Judges are required to engage in communication and experiment with new ideas and solutions, and must avoid making sudden changes without deliberation. Fictions are the tool used by the judges to carry out that function. 

Furthermore, fictions allow for more flexibility and are a method of mitigating the rigidity and injustice that would result from applying a strict rule. Without them the law would cease to evolve with time and not be able to help those from potential injustice.

 

 

In light of these arguments defending legal fictions, it is submitted that legal fictions are far from the villains that they have been made out to be. They are of enormousimportance to the legal system in shaping and aiding the system to adapt to changes, and evolve with time. They are a means of initiating communication between past, present and future courts and are therefore invaluable instruments used to protect from potential injustice whilst balancing the need for certainty and predictability in the law.

In conclusion, although the use of legal fictions has the potential of going against the requirement of principled justification at times, its use is justified, as mentioned above, because of the role it plays in helping to overcome the rigidity and inflexibility of law at times when adhering to the strictness of a principle might lead to potential unfairness.