Current Legal Fictions in Public Law

Abstract

The use of legal fiction in public law has shown no sign of abating, as demonstrated in the enactment of the Safety of Rwanda (Asylum and Immigration) Act 2024. Accompanying questions or concerns are about the degree to which they are problematic, useful, or detrimental, what is to be done about them, and whether their prevalence is specific to British or English legal culture. This article examines what has been done, or what has happened, to deal or to cope with them, in orthodox constitutional legal doctrine and administrative law liability. After adopting a working definition of legal fiction and showing Dicey’s own preoccupation with the constitution’s legal forms and fiction, it does so through two case studies. Both involve basic orthodox constitutional legal doctrines—parliamentary sovereignty and the rule of law—with which Dicey has long been associated. The one case study is of Parliament’s sovereignty, limitless in law, and limited in actuality. The other case study is of legal fiction in relation to developments in public authority liability under equality before the law, particularly for omissions, or non-conferrals of benefit. Through these studies, this article will argue that the fortunes of legal fiction in the British or English legal context have been not simply of all-or-nothing rejection or retention. They have been, because of the unease accompanying the use of legal fiction, also of their domestication, in analytical distinctions, and refinement of judicial language in common law reasoning. The extraordinary legal forms have been made more ordinary or so to appear, showing them as domesticated to have been and to remain of current, ongoing and present, relevance.