Fictions in the Thought of Sir John Salmond

Abstract

A Lecture delivered for the Stout Centre's "Eminent Victorians" Centennial Series in the Council Chamber, Hunter Building at Victoria University on 31 March 1999. The author pays tribute to the late Sir John Salmond by discussing the role of "fiction" in law and in the thought of Sir John. The author notes the nature of fiction as a formidable force, as it facilitates provisional escape from the tyranny of apparent fact and forget about the suspensory nature of fiction. There are three types of "fictions" in the legal world: legislative fictions, whereby the world is refashioned in accordance with the legislator's desires; constitutional fictions, which places fictional boundaries on government rule; and corporate fiction, which creates a fictional corporate personality for companies. The author concludes that it is purpose that keeps fiction honest, and that the relationship between fiction and purpose is just as important as that between hypothesis and fact.

Fictions of Income Tax

“…But Dr Frame's words apply equally to the inherent fictions of tax law. He says: 54 I should note here two dangers of the fiction as a device for preventing the exploitation of legal forms to frustrate the intent of legal policy. First, use of the device strengthens the legitimacy and likely success of such exploitation in respect of those legal forms [that] are not specifically targeted -thus, if legal facts A, B, and C are specifically treated as if they were legal fact T (Taxable), then by implication legal fact X, which has not been designated, is not to be so treated, however artificial its existence may appear to be.…”