Legal Fiction

LEGAL FICTION
legal fiction.An assumption that something is true even though it may be untrue, made esp. in
judicial reasoning to alter how a legal rule operates; specif., a device by which a legal rule or
institution is diverted from its original purpose to accomplish indirectly some other object. • The
constructive trust is an example of a legal fiction. — Also termed fiction of law; fictio juris.
[Cases: Trusts 91. C.J.S. Trover and Conversion §§ 10, 12, 174, 195.]

“I … employ the expression ‘Legal Fiction’ to signify 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…. It is not difficult to understand why fictions in all their
forms are particularly congenial to the infancy of society. They satisfy the desire for improvement,
which is not quite wanting, at the same time that they do not offend the superstitious disrelish for
change which is always present.” Henry S. Maine, Ancient Law 21–22 (17th ed. 1901).

Black’s Law Dictionary (8th ed. 2004) , Page 2618

“Legal fiction is the mask that progress must wear to pass the faithful but blear-eyed watchers
of our ancient legal treasures. But though legal fictions are useful in thus mitigating or absorbing
the shock of innovation, they work havoc in the form of intellectual confusion.” Morris R. Cohen,
Law and the Social Order 126 (1933).