Fiction

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notmartha
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Fiction

Post by notmartha » Wed Dec 30, 2015 2:06 pm

Creating a fiction to limit liability is nothing new, and has been a common practice in the legal world since Ancient Rome. Fictions create new fictions that create new fictions until it is difficult at times to see the real through the fiction. If you see the terms "deem," "person" or "constructive," or the use of ALL CAPS you can be pretty sure there is a legal fiction being used. This is a much larger topic than can be covered in one post, but I’ll give it a try...

KJV References

The word "fiction" is not found in the KJV. The word "fable," which according to Strong's means "fiction" is found.

Mythos, Greek Strong's #3454, is used 5 times in the New Testament. It is translated as “fable,” meaning fiction in the following verses:
1 Timothy 1:4 - Neither give heed to fables and endless genealogies, which minister questions, rather than godly edifying which is in faith: so do.

2 Timothy 4:3-4 - For the time will come when they will not endure sound doctrine; but after their own lusts shall they heap to themselves teachers, having itching ears; And they shall turn away their ears from the truth, and shall be turned unto fables.

Titus 1:13-14 - This witness is true. Wherefore rebuke them sharply, that they may be sound in the faith; Not giving heed to Jewish fables, and commandments of men, that turn from the truth.

2 Peter 1:16 - For we have not followed cunningly devised fables, when we made known unto you the power and coming of our Lord Jesus Christ, but were eyewitnesses of his majesty.
Fictions of Law are nothing new. Here is an example from the Bible:
Matthew 27:6-7 - And the chief priests took the silver pieces, and said, It is not lawful for to put them into the treasury, because it is the price of blood. And they took counsel, and bought with them the potter's field, to bury strangers in.
Acts 1:18 - Now this man purchased a field with the reward of iniquity; and falling headlong, he burst asunder in the midst, and all his bowels gushed out.
Marvin Vincent, in Word Studies in the New Testament published in 1886, explains:
In such cases the Jewish law provided that the money was to be restored to the donor; and if he insisted on giving it, that he should be induced to spend it for something for the public weal. This explains the apparent discrepancy between Matthew's account and that in the book of Acts. By a fiction of the law the money was still considered to be Judas', and to have been applied by him to the purchase of the potter's field.
Webster’s Dictionary of the English Language, 1828
FIC'TION, noun [Latin fictio, from fingo, to feign.]

1. The act of feigning, inventing or imagining; as, by the mere fiction of the mind.

2. That which is feigned, invented or imagined. The story is a fiction
So also was the fiction of those golden apples kept by a dragon, taken from the serpent which tempted Eve.

FICTI'TIOUS, adjective [Latin fictifius, from fingo, to feign.]

1. Feigned; imaginary; not real.
The human persons are as fictitious as the airy ones.

2. Counterfeit; false; not genuine; as fictitious fame.

FICTI'TIOUSNESS, noun Feigned representation.
The Century Dictionary, an Encyclopedic Lexicon of the English Language, 1895
FICT

Feigned; fictitious.

FICTION

1. The act of making or fashioning. [Rare.]

2. The act of feigning, inventing, or imagining; a false deduction or conclusion: as, to be misled by a mere fiction of the brain.

3. That which is feigned, invented, or imagined; a feigned story; an account which is a product of mere imagination; a false statement.

4. In literature: (a) A prose work (not dramatic) of the imagination in narrative form; a story; a novel. (b) Collectively, literature consisting of imaginative narration ; story-telling. (c) In a wide sense, not now current, any literary product of the imagination, whether in prose or verse, or in a narrative or dramatic form, or such works collectively.

5. In law, the intentional assuming as a fact of what is not such (the truth of the matter not being considered), for the purpose of administering justice without contravening settled rules or making apparent exceptions; a legal device for reforming or extending the application of the law without appearing to alter the law itself. Inasmuch as the courts cannot alter the law, but only declare it and apply it to facts ascertained by them, it was early discovered that the only way in which they could adapt the law to hard cases, or stretch it to new cases, was, by pretending a state of facts to fit the rule of law it was thought just to apply. Thus it was a rule of law that a deed takes effect from delivery, and the courts had no power to alter this rule; but if a grantor fraudulently or negligently delayed delivering his deed at the time it bore date, and afterward sought to claim some unjust advantage, as having continued to be owner meanwhile, the courts, not being able to change the rule of law, would by a fiction treat the delivery as relating back to the date. So, when legislation forbade transfers of land unless made publicly by record, the courts allowed an intending grantee to sue, alleging that the land belonged to him, and the intending grantor to suffer judgment to pass ; thus by a fiction creating a mode of conveyance which, for all practical purposes, preserved the privacy of titles. Direct methods of improving the rules and forms of law have in recent times superseded the invention, and for the most part the use, of fictions.

FICTIONAL

Pertainig to or of the nature of fiction; fictitiously created; imaginary.

FICTITIOUS

1. Pertaining to or consisting of fiction; imaginatively produced or set forth; created by the imagination: as, a fictitious hero; fictitious literature.

2. Existing only in imagination; feigned; not true or real: as, a fictitious claim.

3. Counterfeit; false; not genuine.

4 Assumed us real ; taking the place of something real; regarded as genuine
Bouvier’s Dictionary of Law, 1856
FICTION OF LAW.

1. The assumption that a certain thing is true, and which gives to a person or thing, a quality which is not natural to it, and establishes, consequently, a certain disposition, which, without the fiction, would be repugnant to reason and to truth. It is an order of things which does not exist, but which the law prescribe; or authorizes it differs from presumption, because it establishes as true, something which is false; whereas presumption supplies the proof of something true.

2. The law never feigns what is impossible fictum est id quod factum non est sed fieri potuit. Fiction is like art; it imitates nature, but never disfigures it it aids truth, but it ought never to destroy it. It may well suppose that what was possible, but which is not, exists; but it will never feign that what was impossible, actually is. D'Aguesseau, Oeuvres, tome iv. page 427, 47e Plaidoyer.

3. Fictions were invented by the Roman praetors, who, not possessing the power to abrogate the law, were nevertheless willing to derogate from it, under the pretence of doing equity. Fiction is the resource of weakness, which, in order to obtain its object, assumes as a fact, what is known to be contrary to truth: when the legislator desires to accomplish his object, he need not feign, he commands. Fictions of law owe their origin to the legislative usurpations of the bench. 4 Benth. Ev. 300.

4. It is said that every fiction must be framed according to the rules of law, and that every legal fiction must have equity for its object. 10 Co. 42; 10 Price's R. 154; Cowp. 177. To prevent, their evil effects, they are not allowed to be carried further than the reasons which introduced them necessarily require. 1 Lill. Ab. 610; Hawk. 320; Best on Pres. §20.

5. The law abounds in fictions. That an estate is in abeyance; the doctrine of remitter, by which a party who has been disseised of his freehold, and afterwards acquires a defective title, is remitted to his former good title; that one thing done today, is considered as done, at a preceding time by the doctrine of relation; that, because one thing is proved, another shall be presumed to be true, which is the case in all presumptions; that the heir, executor, and administrator stand by representation, in the place of the deceased are all fictions of law. "Our various introduction of John Doe and Richard Roe," says Mr. Evans, (Poth. on Ob. by Evans, vol. n. p. 43,) "our solemn process upon disseisin by Hugh Hunt; our casually losing and finding a ship (which never was in Europe) in the parish of St. Mary Le Bow, in the ward of Cheap; our trying the validity of a will by an imaginary, wager of five pounds; our imagining and compassing the king's death, by giving information which may defeat an attack upon an enemy's settlement in the antipodes our charge of picking a pocket, or forging a bill with force and arms; of neglecting to repair a bridge, against the peace of our lord the king, his crown and dignity are circumstances, which, looked at by themselves, would convey an impression of no very favorable nature, with respect to the wisdom of our jurisprudence." Vide 13 Vin. Ab. 209; Merl. Rep. h. t.; Dane's Ab. Index, h. t.; and Rey, des Inst. de I'Angl. tome 2, p. 219, where he severely cesures these fictions as absurd and useless.

FICTITIOUS

Pretended; supposed; as, fictitious actions; fictitious payee.

FICTITIOUS ACTIONS, Practice.

1. Suits brought. on pretended rights.

2. They are sometimes brought, usually on a pretended wager, for the purpose of obtaining the opinion of the court on a point of law. Courts of justice were constituted for the purpose of deciding really existing questions of right between parties, and they are not bound to answer impertinent questions which persons think proper to ask them in the form of an action on a wager. 12 East, 248. Such an attempt has been held to be a contempt of court; and Lord Hardwicke in such a case committed the parties and their attorneys. Rep. temp. Hardw. 237. See also Comb. 425; 1. Co. 83; 6 Cranch, 147 8. Vide Feigned actions.

3. The court of the king's bench fined an attorney forty pounds for stating a special case for the opinion of the court, the greater part of which statement was fictitious. 3 Barn. & Cr. 597; S. C. 10 E. C. L. R. 193.

FICTITIOUS PAYEE, contract.

1. A supposed person; a payee, who has no existence.

2. When the name of a fictitious payee has been used, in making a bill of exchange, and it has been endorsed in such name, it is considered as having the effect of a bill payble to bearer, and a bona fide holder, ignorant of that fact, may recover on it, against all prior parties who were privy, to the transaction. 2 H. Bl. 178, 288; 3 T. R. 174, 182, 481; 3 Bro. C. C. 238. Vide Bills of Exchange, §1.
Maxims
Fiction is against the truth, but it is to have truth.

In a fiction of law, equity always subsists.

Fictions arise from the law, and not law from fictions.

There is no fiction without law.

Reference is a fiction of law, and intent to one thing.
Blacks 2nd, 1910
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Black’s Law Dictionary, 6th Edition
Fictio:

"In Roman law, a fiction; an assumption or supposition of the law. Such was properly a term of pleading, and signified a false averment on the part of the plaintiff which the defendant was not allowed to traverse…The object of the fiction was to give the court jurisdiction."

Fiction:

"Founded on a fiction; having the character of a fiction; pretended; counterfeit. Feigned, imaginary, not real, false, not genuine, nonexistent. Arbitrarily invented and set up, to accomplish an ulterior object."
WEX Legal Dictionary
Fertile-octogenarian Rule
An unrealistic legal fiction that any living person (male or female) is capable of having a child. In estate planning, this rule could defeat the intentions of a person leaving property to others. For example, if property could not pass to one's child as long as he or she might acquire a sibling, then the child would have to wait until both parents died, unnecessarily tying up the property. Most states have passed laws to cure this anomaly.
Alternative Pleading
A legal fiction in which a pleader alleges two or more legal claims which are inconsistent with each other. For example, someone hurt in an accident can plead that the other party was negligent or ran into him intentionally. Or in a criminal trial, a defendant may plead not guilty and not guilty by reason of insanity (in which there is the implied admission that the defendant committed the act).
Constructive transfer.
“Constructive transfer” is a legal fiction which permits acceptance of a Customs entry for merchandise in a zone before its physical transfer to the Customs territory.
Constructive Notice
Constructive notice is the legal fiction that someone actually received notice (being informed of a case that could affect their interest - see: Notice) whether or not they truly did receive this. If certain procedures have been followed, the law will consider a person to legally have received notice, even if in fact they did not. Compare: Actual Notice.
Constructive Trust
A constructive trust is not an actual trust by the traditional definition. It is a legal fiction that is used as a remedy for unjust enrichment. Hence, there is no trustee, but the constructive trust orders the person who would otherwise be unjustly enriched to transfer the property to the intended party.
legal fiction
A presumption of fact assumed by a court for convenience, consistency, or to achieve justice.
Civil Forfeiture (In Rem)
Unlike criminal forfeiture, civil forfeiture proceeds against the property, not the person. In theory, civil actions are remedial, not punitive like criminal proceedings. By acting civilly, the government seeks to remedy a harm, through the fiction of the property's "guilt."
Corporation
An entity created in accordance with legal rules that acts as a single (fictional) person. A corporation may sue and be sued, lend, borrow, issue stock, exist indefinitely, and act in many other ways distinct from the shareholders who own it and the managers who run it. Each U.S. state can create rules by which new corporations are formed (i.e., rules of incorporation).
HEALY et al. v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. SMITH.
345 U.S. 278 (73 S.Ct. 671, 97 L.Ed. 1007)
Argued: Dec. 12, 1952.
Decided: April 6, 1953.
We do not believe that these taxpayers were trustees in the sense that the salaries were not received for their separate use and benefit. Under the equitable doctrine that the funds of a corporation are a trust fund for the benefit of creditors, a stockholder receiving funds without adequate consideration from an insolvent corporation may be held, in some jurisdictions, to hold the funds as a constructive trustee. So it was that these taxpayers were declared constructive trustees and were liable as transferees in equity. A constructive trust is a fiction imposed as an equitable device for achieving justice. It lacks the attributes of a trust, and is not based on any intention of the parties. Even though it has a retroactive existence in legal fiction, fiction cannot change the 'readily realizable economic value' and practical 'use and benefit' which these taxpayers enjoyed during a prior annual accounting period, antecedent to the declaration of the constructive trust.
Duhaime's Law Dictionary
http://www.duhaime.org/LegalDictionary/ ... ction.aspx
Legal Fiction Definition:
A ruling or status in law based on hypothetical or inexistent facts.

Related Terms: Deem, In Fictione Juris Semper Aequitas Existit

The legal rights that flow from adoption, as if the child adopted is issue of the adopting parents, if often given as an example of a legal fiction.1

In Stoner v Skene (44 Ontario Law Reports, page 609, 1918), Justice Lennox used these words:
"A legal fiction ... is an assumption of a possible thing as a fact, which is not literally true, for the advancement of justice, and which the law will not allow to be disproved, as far as concerns the purpose for which the assumption is made.:

"Legal fictions are always set up for the advancement of justice."

In a much more recent case, (Staufen v BC 2001 BCSC 779, published at canlii.org/en/bc/bcsc/doc/2001/2001bcsc779/2001bcsc779.html), Canadian justice Scarth added:
"(A) legal fiction is an assertion accepted as true (though probably fictitious) to achieve a useful purpose, especially in legal matters."

Justice Scarth reviews historical common law doctrine and goes on to suggest that legal fictions are of three varieties:
"... fictions used to increase the jurisdiction of Courts; fictions designed to avoid cumbersome and archaic forms of action; (and) fictions having a false assumption of fact in order to extend the remedy the Court could grant."

In Butterworths Concise Australian Legal Dictionary, editors Nygh and Butt (1998) use as an example the 1992 case Mabo v Queensland (107 ALR 1, published at austlii.edu.au/au/cases/cth/HCA/1992/23.html) interpreting the decision to state that:
"The European settlement in Australia in 1788 as (empty land) was a legal fiction as it suppressed the fact that the land was inhabited ... by the aboriginal peoples."
Thomas J. DiLorenzo:
The theory of natural monopoly is an economic fiction. No such thing as a 'natural' monopoly has ever existed. The history of the so-called public utility concept is that the late 19th and early 20th-century 'utilities' competed vigorously, and like all other industries, they did not like competition. They first secured government-sanctioned monopolies, and then, with the help of a few influential economists, they constructed an ex post facto rationalization for their monopoly power. ... The theory of natural monopoly is a 19th-century economic fiction that defends 19th-century (or 18th-century, in the case of the U.S. Postal Service) monopolistic privileges and has no useful place in the 21st-century American economy.
Frederic Bastiat:
The state is the great fiction by which everybody seeks to live at the expense of everybody else.
Adolf Hitler:
For the folk-community does not exist on the fictitious value of money but on the results of productive labour, which is what gives money its value.
Further Study:

http://www.ecclesia.org/forum/uploads/b ... LCAPSP.pdf

http://www.lawfulpath.com/ref/jessica/jessica.shtml
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notmartha
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Re: Fiction

Post by notmartha » Thu Feb 18, 2016 1:26 pm

Ancient Law, Its Connection to the History of Early Society, Sir Henry James Sumner Maine, 1917
I employ the word "fiction" in a sense considerably wider than that in which English lawyers are accustomed to use it, and with a meaning much more extensive than that which belonged to the Roman "fictiones." Fictio, in old Roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse; such, for example, as an averment that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object of these "fictiones" was, of course, to give jurisdiction, and they therefore strongly resembled the allegations in the writs of the English Queen's Bench, and Exchequer, by which those Courts contrived to usurp the jurisdiction of the Common Pleas:--the allegation that the defendant was in custody of the king's marshal, or that the plaintiff was the king's debtor, and could not pay his debt by reason of the defendant's default. But I now employ the expression "Legal Fiction" to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. The words, therefore, include the instances of fictions which I have cited from the English and Roman law, but they embrace much more, for I should speak both of the English Case-law and of the Roman Responsa Prudentum as resting on fictions. Both these examples will be examined presently. The _fact_ is in both cases that the law has been wholly changed; the _fiction_ is that it remains what it always was. It is not difficult to understand why fictions in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present. At a particular stage of social progress they are invaluable expedients for overcoming the rigidity of law, and, indeed, without one of them, the Fiction of Adoption which permits the family tie to be artificially created, it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first steps towards civilisation. We must, therefore, not suffer ourselves to be affected by the ridicule which Bentham pours on legal fictions wherever he meets them. To revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of law. But at the same time it would be equally foolish to agree with those theorists, who, discerning that fictions have had their uses, argue that they ought to be stereotyped in our system. They have had their day, but it has long since gone by. It is unworthy of us to effect an admittedly beneficial object by so rude a device as a legal fiction. I cannot admit any anomaly to be innocent, which makes the law either more difficult to understand or harder to arrange in harmonious order. Now legal fictions are the greatest of obstacles to symmetrical classification. The rule of law remains sticking in the system, but it is a mere shell. It has been long ago undermined, and a new rule hides itself under its cover. Hence there is at once a difficulty in knowing whether the rule which is actually operative should be classed in its true or in its apparent place, and minds of different casts will differ as to the branch of the alternative which ought to be selected. If the English law is ever to assume an orderly distribution, it will be necessary to prune away the legal fictions which, in spite of some recent legislative improvements, are still abundant in it.
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Re: Fiction

Post by notmartha » Sun Sep 11, 2016 3:51 pm

Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States, vol. 2, John Joseph Lalor, 1881

FICTIONS, in Law and in Political Economy. The part which fictions have played in the history of human society and of political science and thought, is one of the most instructive phenomena that sociology can investigate. They have had a large share in determining not only the political ideas, but the political and legal rights of mankind. It is needless to say we do not refer to fictions in the common meaning of the word as denoting mere fabrications in the sense of falsehoods, nor yet to the fictitious creations of the novelist's imagination. The fictions we have in view may be classed as legal, political and philosophical; some of them, in different aspects, coming under all three heads. Sir Henry Maine, in his work on Ancient Law, has drawn attention to the vast influence which fictions have exercised over the development of society, as affording a means of introducing change and reform into law without breaking with the past and its traditions and solemn forms. But for one of these fictions, one older than positive law in the strict sense of the word, but which fills conspicuous place in the most famous of all legal systems, few early communities could have survived. The disasters and perils surrounding them—war, pillage, famine, fire, disease—were such that families were often left without male heirs, clans without chiefs of the true blood. The sons were slain in battle, or perished early from the hardships to which childhood was exposed, or were taken captive and passed into slavery, or fell victims to the maladies which ravaged the human race in its infancy. Households were thus left without their natural protectors, and, what was deemed a graver evil, without successors to perform the rites of ancestry worship, and to leave male heirs in their turn to perpetuate it. The fiction of adoption whereby a stranger was admitted to the place of a son, with all his rights and obligations, gave the family a defender and head, and preserved its name and honor among the living. As society advanced, the forms of adoption were applied to other ends, as, for instance, to effect the alienation of land by gift and sale. The ancient testament was at first a species of adoption, or of the nomination of a successor to the headship of the family and the administration of its patrimony; and at length was made use of to effect the disinheritance of the natural heir. The civil law of Rome, and the common law of England, were for centuries developed mainly by means of the fiction of a religious adherence to the letter and form of the law, while in substance it was radically changed by novel interpretations. The state of thought which this mode of law reform indicates is especially remarkable. There is the most scrupulous adherence to the outward forms and literal text of the law, while there is no scruple in subverting it in spirit. There can be little doubt that the explanation is to be looked for in the original connection of law with religion, and the consequent sacredness of legal ceremonies and formulas as religious rites and observances. Herbert Spencer says that government and law, were originally, nothing but ceremony. A third term is however necessary to explain their connection. Law was originally religion: religion consisted in forms, obeisances and ceremonies; and law, accordingly, was in the main a mass of ceremonial observances. The idea of the sacred and inviolate character of the form and letter survived after its origin in religion had been forgotten. No change in the ancient order of procedure was permitted, but whatever it could be interpreted to cover was lawful and right. There is no reason to suppose that either the Roman jurisconsults or the English judges were exempt from a reverential regard for the regular procedure and literal terms of the old law, when superseding it in substance, and even when triumphing in the ingenuity by which the change was effected.

—No more curious instance of the length to which legal fictions have been pushed can be cited, than that of the collusive action, called a common recovery, whereby in the reign of Edward IV, the owner for life of an entailed estate was enabled to set aside the statute De Donis, and to alienate the land from the heir. Many reasons concurred to make the barring of entails appear expedient at that epoch. The crown and its lawyers were desirous of making the inheritance and not the life estate only, forfeitable for treason. The ancient principles of the common law, derived by the early judges in a great measure from the Roman jurists, inclined the courts to favor the free disposition of landed property. The courts of law, moreover, were engaged in a fierce struggle with the court of chancery for jurisdiction, and were seeking to extend their powers and remedies, and to attract suitors by fictions, such as the actions of ejectment and common recovery. The expenses attending the war of the roses, and their own extravagant habits, had
embarrassed many landed proprietors, and made them anxious to sell; while a middle class in both town and country had become wealthy and were anxious to buy. The judges and great lawyers were themselves great buyers of land and liked to see it brought into the market. But along with all these reasons for sanctioning the fictitious process whereby lands were disentailed, there was a survival in the breasts of the judges of a feeling of the efficiency of the ancient form and letter of the law. For while the transaction would have been held invalid, had a single ceremony or formula been omitted or changed, a close adherence to ancient precedent in outward procedure was allowed to subvert a fundamental enactment respecting inheritance. But a time was sure to come, when a fiction such as that of the common recovery would be intolerable both to public opinion and to that of the legal profession, even for the most expedient and beneficial reform. The intellect of an advanced age revolts against a solemn judicial juggle, as an indecent abuse and usurpation of legislative power.

—Among legal fictions, though of a different kind from the foregoing, may be classed the forged compilations of law of which the middle ages were so fertile. A remarkable instance is that of Andrew Horn's Miroir des Justices, which was lauded by Lord Coke and is still not unfrequently cited by English legal writers, as a valuable and trustworthy repertory of Anglo-Saxon law. Horn was no lawyer, being a fishmonger by occupation, and a chamberlain to the city of London, who lived in the reigns of the three Edwards, and whose compilation is a crude mixture of tradition, fable, and the laws of his own time. Hallam's just sentence on the Mirror for its fictions and forgeries has not deprived it, down to the present day, of authority in the estimation of authors of some reputation even in Germany.

—Among both political and legal fictions we must class the venerable British constitution, which is still in many respects, in outward form, a pure monarchy, while in fact it is a republic, and rapidly becoming a very democratic one. The royal sanction is still given to a statute in terms which sound like the maxim of imperial law, Quod principi placuit legis habet vigorem, though the British sovereign has really a less voice in legislation than the humblest elector.

—Of the mixed philosophical and political fiction, the doctrine of the social compact, as the foundation of the authority of government and law, affords an example, which was made especially memorable when the two houses of the English parliament put it forward as the ground of the deposition of James II. The commons resolved that King James, having endeavored to subvert the constitution by breaking the original compact between king and people, and having withdrawn himself out of the kingdom, had abdicated the government and that the throne was thereby vacant. The house of lords, for their part, also framed a resolution that there was an original contract between the king and the people. It may well seem to modern ideas that no such fiction was necessary to justify the deposition of such a sovereign yet Hallam's comment on the resolution is, that it involved "a proposition necessary at that time as denying the divine origin of monarchy, from which its claim to absolute indefeasible authority had been plausibly derived."

—A still more famous fiction and one that may claim to be termed at once legal, political and philosophical, is that of a law of nature, from which flow a number of both political and legal rights. This fiction, the origin of which has been traced by Sir Henry Maine to a mixed Greek and Roman source, contributed much to bring about the French resolution, and the ideas of natural liberty and equality which then spread through the world. It is curious that it has lent its support to opposite conceptions of rights in different countries. In France children are supposed to have a natural right to equal shares in their parents' property. In England an unrestricted testamentary power, whereby the succession of any or all of the children may be defeated is supposed to be a natural right, and has been so denominated by learned writers on jurisprudence. The whole class of so-called natural rights for example, to life, liberty, property, reputation exist only by the sanction of the state and positive law; and they are set aside by the state without scruple when public policy demands it, as, for instance, when it becomes necessary to make citizens fight for their country. As democracy advances less and less regard is now paid to individual "rights" of this sort. It is to an aristocratic legislature that rights of property and independence seem most sacred and founded in natural justice, instead of in simple expediency. Yet the conception that they have a foundation in a law of nature, fictitious as such a basis is, will probably long continue to give effective aid to the opponents of socialism.

—Political economy undoubtedly owed not only its first successes but much of its form in a great measure to the popularity of the doctrine of a code of natural law. Adam Smith drew from it the doctrines in the Wealth of Nations of the "natural system of liberty" by which the province of the state was bounded; of the beneficent tendency of the "natural effort of every man to better his condition," of "the natural order of opulence," and of "natural wages, profit, prices and rent."

—It would not be too much to say that the domain of fiction in human philosophy once far exceeded that of truth, based on inductive investigation and positive evidence. At the same time it would be rash to assert that fiction has not played in several departments of thought a beneficent part. The doctrine of natural rights has without doubt done much for the prosperity and happiness of mankind.

—But the sphere of fiction must steadily diminish as that of inductive and positive science advances and as man's mind itself becomes stronger, clearer and more discerning. Dr. Whewell, in tracing the slow progress of former ages in the physical sciences to the indistinctness and inappropriateness of human ideas on such subjects, laid himself open to the retort that this imperfection of human thought in matters of science was the very thing to be accounted for. Yet there is a sense in which the disciple of Herbert Spencer may accept Dr. Whewell's proposition. In the infancy of the human race the brain of man is small and soft and feeble. It grows larger and more vigorous by exercise, and its increased powers are transmitted to each successive generation to receive further enlargement. Truth advances, and the clouds of fiction recede, not merely because discoveries are made and errors refuted, but because man's cerebral vigor and activity grow, and the faculties by means of which science and philosophy make progress gain strength, in a manner which will become clear to any one who compares the brain of a savage with that of a civilized and educated man.
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notmartha
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Re: Fiction

Post by notmartha » Wed Feb 08, 2017 8:14 am

Tweets from Grover Norquist, the president of Americans for Tax Reform:
Mom and Dad earn the $,buy, wrap the presents.
Children believe Santa did it
Kinda like the view liberals have:
"The govenrment did it"
— Grover Norquist (@GroverNorquist) December 25, 2016
Children grow up and realize Santa is fiction
The state is the dangerous fiction by which everyone hopes to live off others' work (Bastiat)
— Grover Norquist (@GroverNorquist) December 25, 2016
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