It is indisputable that legal fiction plays a major role in the law, from land laws lost modern grant, which every law student is forced to study to the slightly less well known doctrine of survival. Though such concepts permeate the common law, and arguably subvert the essential doctrine of legal certainty, the article makes the point that the layman rarely complains that the law is founded upon fictions. Bentham names legal fictions ‘the most pernicious and basest sort of lying’, whilst Blackstone considers them ‘highly beneficial and useful’.
In Motives of the Legal Fiction the author attempts to deal with a number of questions, the one that this post will focus on however is ’what should we do about the fiction?’. The issue here is that many fictions exist because of their utility, something the article recognises. Therefore, so long as we cannot fill the void that would appear if we were to remove them from the legal sphere there is not much to be done about them at all. This clashes however with the articles concurrent realisation that a fiction is only safe ‘when it is used with a complete consciousness of its falsity’. The issue is that doctrines like that of the post modern grant have become so ingrained that many practitioners and academics no longer question their mechanics. It is possible to postulate, having recently completed an undergraduate degree myself, that few people appreciate that the creation of an easement through prescription relies on the fiction of the lost modern grant, they simply see the test of nec vi, nec clam, nec precario and the subsequent result of its application over a lengthy time period. This however clashes with the articles need for a consciousness of falsity and suggests that we have taken the legal fiction to far in England and Wales.
The fact that there might be a need for change however in no way diminishes the need for legal fictions. Furthermore, whilst legal fictions have been removed from the legal gamut in the past, it is arguable that the process has left us with the most utilitarian of fictions, for which there can be no easy replacement. The author of the article seeks to replace fiction with ‘presumptions’ and examines a potential test for doing so. The issue here however is that there is little practical difference; whilst the author relies on the linguistic impact to make their case for presumptions, this in no way changes the practical reality of mechanisms like the lost modern grant. That is, if society desires doctrines like that of prescription it requires a method for letting them sit well with the law. One is forced to conclude that the article takes the wrong direction, and that until some creative academic of legislator invents a suitable tool to replace the most utilitarian fictions, they must continue to subsist within the legal sphere.