Legal Fiction

Mr. Sourish Roy


“Legal fiction is a premise that is assumed to be true so as to enable the courts to apply certain legal principles to a given situation. The Court knows that it is not true or not exactly true but still goes forward on its basis; in order to press a legal point. The approach has been there in Common law for long and some of the fictions are age old and quite well established. But new legal challenges are also giving rise to newer legal fictions – which the courts and legislative bodies are formulating for acceptable resolution. In this write-up, the author reflects the necessity of legal fiction and real life application of legal fiction.”


Let us recapitulate for a moment how we had studied the subject “Physical Science” in our lower classes. I remember that at least those of us who were in the West Bengal Board, were taught in class VI that matter consists of small particles called molecules, which cannot be divided further. Then in class VII, we learnt that molecules of elements can be broken down into still smaller particles called the “Atom” – the ultimate spec of matter. But in classes XI and X, we were then taught that atoms consist of still smaller constituents – protons, electrons and neutrons. But the surprise did not stop there – in XI and XII, we were introduced to the idea that there exist other unstable subatomic particles and that quarks form protons, electrons and neutrons. Even atomic orbitals can be in the form of electron clouds and not orbitals and so on – the complexity seemed ever increasing. So, we were taught incorrectly in lower classes – if so why? This is a question that used to come to our minds then.

To continue on similar lines, in lower classes we were taught that total mass in a closed system is constant; the so-called principle of conservation of mass. Later on, in the same subject itself, in higher classes, we were exposed to Einstein’s famous theory of relativity – E = mc2 and it seemed that matter can be converted to energy. So why did they give us the wrong idea or at least not the full picture at lower levels. What was the objective? The ostensible reason behind this approach of teaching is to concentrate on a particular topic and give a limited exposure for a specific purpose. The objective of taking the route of principle of conservation of mass is to teach Newton’s concepts, which are valid in their own sphere of application. But in the broader canvas, Einstein’s postulates come with specific application of their own.

So, if  class VII students was taught Physics with the ultimate picture and concepts in its purview, it would have been –

  • Too complex to teach in a given time
  • Would make things much more convoluted than what was required
  • It would result in loss of focus with respect to the problem at hand
  • The audience may not understand the issue

In a nutshell, it would mean bringing a hammer to kill a mosquito. Sometimes similar situation arise in the legal arena as well. And one of the ways to select the tool  fit for the purpose is to take recourse to the concept of legal fiction. It is like assuming a simplified model to effectively address the problem while considering the length and breadth of the problem, rather than resorting to unnecessary complexities that can waste time and effort or give rise to impractical scenarios.

Towards Legal Fiction

Let us consider some cases which are not, strictly speaking, examples of legal fiction, but can be compared to the same –

A person who is under the age of 18 (eighteen), even by a day is a minor. However, the moment he crosses 18, he becomes a major resulting in application of different laws. Has the person’s ability to think and take independent decisions undergone a radical metamorphosis overnight? The answer is no. Yet for practical purposes of law, a limit had to be prescribed. This is due to the presumption of legislative wisdom. In the absence of such an approach, one would have to determine his intelligence quotient through different tests like psychometric tests, cognitive analysis test etc.  to determine whether he is major or minor. The difficulty associated with the process would have relegated the actual legal issue in a legal proceeding involving the person, to the background.

Further, a ship is ascribed a personality, implying, inter alia, that it can sue and be sued in its name across jurisdictions. Is it a real person who decides to do something in the correct or incorrect manner? The answer is no. However, this approach simplifies the associated legal problem, and thereby, aids in easier handling of the issue of admiralty.

There is some difference of opinion as to whether ascribing legal personality to a company or a Hindu idol is about creating a legal fiction or merely complying with a statutory principle. But in both cases, something is considered to be true and ascribed a juridical personality where it should not for the sake of simplicity of addressing the entire gamut of legal issues associated with both; the handling of which would have otherwise become very cumbersome. Law assumes the company to be a person and the Hindu idol to be a perpetual minor. This allows the legal system to chalk out a path through which the flow of the entire legal process, would be channelized. However, none of these examples demonstrate situations where something untrue is being accepted as true. They are just like a vessel holding a liquid to give shape to it.

Legal Fiction

Now, let us consider something that is really a fiction – Adoption. Adoption gives  formal legal recognition that the child is part of the adopting family; and is no longer related to his/her biological parents. A legal fiction is thus a fact assumed or created by courts that is not actually true but is used in order to apply a legal rule. Typically, a legal fiction allows the court to ignore a fact which would make the execution of the legal process cumbersome. Thus, legal fiction is an assertion that is accepted as true for legal purposes, even though it may be in fact be false or indeterminate.

Legal fiction is employed in judicial reasoning to avoid difficulties in the operation of a law. Another example of the same is the doctrine of survival. In many jurisdictions – if two people die at the same time, or in a manner that renders it impossible to tell who had died first, the older of the two is considered to have died first. Although it must be noted that this presumption is subject to rebuttal by evidence demonstrating the actual order of death.

Another example of legal fiction that is widely used by courts to give just and fair decisions is quasi-contract. This is an obligation imposed by law on a party independent of any agreement between the parties. This is resorted to in situations where grave injustice or violation of equity would result . The restitution mandated under the quasi contract aims for a fair resolution of the situation. A quasi-contract is a court-imposed document designed to prevent one party from unfairly benefiting at the expense of the other, even though no contract exists between them.

Creation of legal fictions, cannot however, be used to subjugate a law or to go against public policy. In some cases, they have been invalidated on this ground. For example, 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 property rights in land in Australia before the time of European colonization was invalidated. This fiction was originally created to deny the aborigines of their land rights.


Thus, we see that legal fiction is something that is not actually true but its use is justified on the same premise by which we are taught the simplified version of a subject in our childhood, even if such versions are incorrect in the strict sense of actual facts.

To conclude, let us revisit the Physical Science tutorials in our lower class. If the approach had been to teach what is exactly right to students of class VI, then the details of atomic structure and quantum physics would not be understood by the students. Thus, the very purpose would be defeated. Similarly, in the field of law, the objective sought to be achieved and sufficiency of purpose demand the presence of legal fiction.

Mr. Sourish Roy is a third year student (LL.B.) at Rajiv Gandhi School of Intellectual Property Law, Kharagpur.




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