Fictio Juris – The Legal Fiction.

Law week

Aayush Tiwari –

You, must have been amused by the science fiction and those thought provoking sci-fi movies. Fiction takes some reality and on its ground weaves mind blowing creativity fit for some purpose. The purpose may be commedy, some Tom and Jerry. The purpose may be some future possibility, Terminator and Matrix and much more than what can be articulated.

Today let’s understand the Fictio Juris or the legal fiction in the nutshell as a part of our lively and comical legal awareness program.

For instance, The Transfer Of Property Act 1882 (TOPA) is a civil law related to immovable properties in India . It hides provisions for an unborn child as far as his legal rights are concerned related to inheritance. Now the child is yet not born but the law sees the flux of inheritance and vests with some rights that will be invoked as he attains majority. Still, the child is not there in existence, and who knows whether he will remain alive for 18 years. So the question is what will the law do to keep things pragametic.

Here comes the Fictio Juris, the legal fiction as the answer. It’s deployment in its veracity is a an exquisite figment of fiction.

Another example is many a times a husband and wife are treated as one unit in law. So have they merged into each other and something spiritual, the ardhnarishwar or some yin yang effect is created? Nah, it’s the legal fiction hiding here for legal convenience point of view.

In torts and cases related to negligence, often the terminology like ‘man with reasonable foresight’ , ‘ reasonable pridence’ are used. The notion behind these jargons is not metaphysical or spiritual but the Fictio Juris or the legal fiction. If someone is unheard for seven years , he is presumed dead by the law, although he might be happily living in some no man’s land. But for convenience and for reasonable pridence mentioned above again the legal fiction is there simplyfing complications.

So if you are an updated gentleman the legal awareness must be flowing in your veins. As there can be no awareness possible without a constant adaptation with the legal dynamics. Understanding this legal fiction hidden in jurisprudence might give you that ” wow weapon” important to decode the amendments and repeals forming the spirit of law.

To conclude with a German the German legal vintage : “Laws grow like a language along with the society and gradually fade away with the social decay” , The Volksgeist theory of jurisprudence. Stay tuned for more such bewildering legal insights , a sine qua non for every citizen.