Talk:Legal fiction
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Mabo v. Queensland
This seems out of place in that in the Mabo case, the High Court invalidated the doctrine of terra nullius. That's quite different from declaring it a legal fiction, because a legal fiction is something that is stipulated to be true even if it is not.
- In the Mabo case, the Australian High Court declared the notion of terra nullius, the notion that lands uninhabited by European style national states were held by no one, was a "legal fiction;" though in that case it may not be certain that this general social, cultural, and military assumption that underlaid colonialism was devised by a court of law; moreover, calling it a "fiction" seems instead to be a retrojection of contemporary mores and values on the past.
That is in there because the text of the article on Terra Nullius says:
- The concept of terra nullius became a major political and legal issue in Australia when, during a controversial Aboriginal rights case known as Mabo, the Australian High Court described it as a "legal fiction".
I found this when looking through the rest of the encyclopedia looking for articles that spoke of legal fictions. It struck me as a somewhat unorthodox use of the phrase myself, but then who am I to contradict the High Court of Australia on these things? I do not live in Australia, have easy access to Australian primary legal materials, or know the Mabo case, but if a high court calls something a legal fiction, I think it merits mention. I mean to restore the text. -- IHCOYC 16:11 11 Jul 2003 (UTC)
The problem is that unless you define legal fiction, the statement is very misleading. Legal fiction has a very technical meaning, which is very different from the layman's term of the issue. A "legal fiction" may be valid or invalid, whereas the Court in Mabo declared that the doctrine was invalid.
And I *have* looked at the primary source materials of the case
Here is the a link to Mabo v. Queensland (1989). The term legal fiction is not there. ]
There is also Mabo v. Queensland (1992) where the term is not there used in reference to terra nullius. I'll not object to you putting it back if you can find me a transcript of the decision where the high court uses that
term.
http://www.austlii.edu.au/au/cases/cth/high_ct/166clr186.html
- In the Mabo case, the Australian High Court declared the notion of terra nullius, the notion that lands uninhabited by European style national states were held by no one, was a "legal fiction;" though in that case it may not be certain that this general social, cultural, and military assumption that underlaid colonialism was devised by a court of law; moreover, calling it a "fiction" seems instead to be a retrojection of contemporary mores and values on the past.
Here is a link to Mabo v. Queensland (No. 2) (1992)
http://www.austlii.edu.au/au/cases/cth/high_ct/175clr1.html
I challenge you to find any Australian High Court decision where the AHC calls terra nullius a legal fiction. You can start here.
-- Roadrunner
- The second linked case contains the text:
- The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existent was justified by a policy which has no place in the contemporary law of this country.
- and furthermore calles the whole basis of the common law of real property tenures, that the King owned all the land and all titles had their source in the King's absolute ownership, was a legal fiction; this too is a somewhat unorthodox use of the phrase. Then again, as Will Rogers said, supreme courts aren't supreme because they're always right; they're always right because they're supreme. It does not seem unreasonable for the author of the article on terra nullius to have concluded that the Australian high court called that doctrine a legal fiction. -- IHCOYC 16:39 11 Jul 2003 (UTC)
- My problem with the original paragraph was that the author seemed to have confused the term "legal fiction" and
the common definition of fiction. Let me try to put in an alternate text.
- This law review article also speaks of "terra nullius" and its "legal fiction" status as something fairly well established in Australian law:
- --IHCOYC 16:53 11 Jul 2003 (UTC)
$1 and Consideration
Is the idea that selling (for example) real estate for $1.00 makes it a sale rather than a gift a legal fiction? --User:Juuitchan
- In a way, but not really. I gather your question is about the wording in deeds that usually says that the land was sold for a dollar. The standard wording I usually see says "$1.00 and other good and sufficient considerations, receipt of which is hereby acknowledged." It actually says that more than $1.00 was received, so it isn't technically untrue; there's no reason to make the actual price part of the public records.
- This recital doesn't actually preclude someone from claiming that the deed was in fact a gift or a sham. This can and has been done (say, when a person who owes money deeds his land for nothing to relatives) so it isn't just accepted as true by the legal system.
- Finally, a person is perfectly free to sell real estate for $1.00, and if that's the deal she made, she will be held to it, at least after the fact. The old common law of consideration treated sales differently from gifts, but in fact did not attempt to inquire as to the fairness of bargains. So a sale of valuable land for $1.00 was valid on its face. Smerdis of Tlön 03:32, 3 Aug 2004 (UTC)
Opaque examples
The first two examples in this paragraph are undecipherable to me. Could it be made clearer to the layman? What is the pantomime they refer to? What is the guardianship issue? These cases are not explained or linked to here. Legal fictions are fewer in number than they used to be. The elaborate pantomime about poor Doe left homeless by Roe has been abolished by statute or by reforms in civil procedure in every common law jurisdiction. The business about Doe and Roe being the guardians of undisclosed parties who wish to bring suit, or the names of parties unknown, remains in some jurisdictions (although not in England). --Locarno 15:44, 5 Oct 2004 (UTC)