Legal Fiction - The Dying Out of Fictions

The Dying Out of Fictions

Legal fictions are fewer than they once were. The elaborate fiction 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). The doctrine of survival, although still existing in England, has been abolished in many U.S. states by the Uniform Simultaneous Death Act. Also, legal fictions have been invalidated as being contrary to public policy, as, for example, in the High Court of Australia's rejection in the Mabo cases of the doctrine of terra nullius, the legal fiction that there were no property rights in land in Australia before the time of European colonization.