Legal Fictions In English Common Law: A Survey Of The Forms Of Action

Legal Fiction is regarded as one of the instrumentalities by which law is broughtinto harmony with society by Henry Sumner Maine. However, compared with theother two instrumentalities, legal fiction is known as “rude”, and it should be prunedaway. In fact, legal fiction is still play an important role in today’s development oflaw. Let’s look back into the history of legal fiction, we shall be surprised and realizeit’s unconscious influence in the formation and development of Common Law. Afterinvestigation, we find the legal fiction is plentiful in forms of action at Common Law.And the forms of action takes writs as its carrier. At the same time, Writ isimperative, when we study Common Law.In a way, legal fiction and the forms ofaction conforms to each other.After study, we shall also have the plaint that legalfiction was just like wizen flowers which nourish the rootstock,and it contributes tothe formation and development of Common Law in its own way.Besides the introductory and peroration, the thesis falls into three chapters.In the first chapter, we define legal fiction. By the study of main academicviews on legal fiction and the compare with relative conception: legal abstention,presumption and equity, we summarize the meaning and the essence of legal fiction.The author conclude that, legal fiction is that in order to make value come true,fiction subject ignore the truth’s reality, and consciously regard the truth A as thetruth B existing in statutory rules, making them the same legal consequences. InCivil Law country, it characterized by legislation, however, it characterized by judicial judgment in Common Law country. The nature of legal fiction is the valuablefiction, which is the core of the difference between the related concept.The second chapter is the survey of legal fiction in England forms of action. Thechapter Expounds the concept, development process and classification of the forms ofaction, and the concept and classification of writ.In author’s view, as the forms ofaction’s carrier, writ is an important part of the forms of action.Besides that, theforms of action includes procedural device. Writ in the thesis is in Middle AgesEngland, the command issued in the name of the king, require people who receivewrit act or omission. And then, through the way of enumeration, we make aninvestigation and in-depth analysis of legal fictions in the forms of action, such aswrit relating to jurisdiction, common recovery, fine and ejectment. After that, thethesis analyzes the characteristic of legal fictions in the forms of action. At the sametime, we make comparisons between them and those in Roman Law. In author’sview, compared with Roman Law, legal fiction in the forms of action at CommonLaw, mainly exists in the process of juridical practice, and the party, lawyers play amajor role in it.In third chapter, the thesis analyzes the relationship of legal fiction in forms ofaction and the development of Common Law. The author get the point that thecharacteristic of Common Law, such as paying attention to experience, and remediesprecede rights, become one of the reasons that legal fiction widely used in the formsof action at Common law. Above all, legal fiction is according with Common Law,which makes Common Law widely applied, and in harmony with society in aroundabout way. Meanwhile, it becomes an effective measures to resist thetemptation of Roman Law. In addition, the widely use of legal fiction helps legalprofession and specialization. Nonetheless, legal fiction also brings negativeinfluence to Common Law: deepening formalism and process more cumbersome. Ina word, because of traits fit, legal fiction and Common Law influence each other.