My Legal Fiction
Legal Fiction Defined.
The simple definition of legal fiction is the presumption of a fact (likely not true) by a court for convenience, consistency, or to achieve justice.
One example of a legal fiction is the universal principal that all people are presumed to know the law; ignorance of the law is not a defense to criminal charges. This was developed so that people cannot avoid punishment for committing illegal acts by claiming ignorance of the law. The premise that all people know the law is a fiction. Most people do not know all criminal laws in the state in which they live. For instance, ask yourself whether you know the gun control, gambling and marijuana laws in your state. Criminal laws vary from state to state. If you travel to another state would you know the gun control, gambling and marijuana laws there? Federal criminal laws are different than those of any given state. Do you know the federal criminal laws governing political contributions, electoral laws or the U.S. mail?
Judging Legal Fiction.
There are dozens of examples for this one legal fiction and there are many legal fictions in the law. Is a legal fiction a bad thing? Not necessarily. In our example, the legal fiction assures that everyone must obey criminal laws or risk punishment. This is so society can be protected. It would be far more difficult to convict a guilty person of a crime if the accused could successfully avoid conviction by claiming that he or she did not know the law. Only experienced prosecutors and defense attorneys know all of the elements of most criminal statutes. Consider how difficult it would be to prove that a non-lawyer had the same level of knowledge.
On the other hand, if a judge devises a legal fiction to justify a decision based on his personal bias, that type of fiction should exposed and his decision overturned.
Legal Fiction is also a genre of fiction where the characters are either part of the legal system or the plot revolves around the legal system. Lawyers who write fiction often gravitate to writing legal fiction. There are advantages to writing about what you know.
My Legal Fiction.
So, after dreaming of becoming a lawyer while in high school and college, studying in law school and practicing law for 41 years, I have chosen to focus my writing in the area of legal fiction, at least for now. I’ve invested 50 years of my life thinking about the law. But the world is full of fascinating people, places and stories. I am curious so who knows were my imagination may wander.
Not so long ago I never dreamed of writing fiction. Even though I understand the natural laws of time and aging, I often find myself thinking that it was not so long ago when I was back in high school dreaming of being a lawyer. That, my friends, is one of my legal fictions.