NIPA

JURISPRUDENCE MODULE

CLASSICAL AND TRADITIONAL THEORIES OF

JURISPRUDENCE
 PREFACE

This module introduces the student to the classical theories of jurisprudence.

It has six units namely: introduction to the philosophy of law and definition
of law, formal and non-formal sources of law, jural relations, legal
personality, possession under English law, and techniques of the judicial
process. The first unit introduces the reader to the nature of the subject and
contains various schools of thought regarding what law is. In the second unit
the sources of law are considered. The third unit deals with various jural
relations. In unit four the concept of legal personality is discussed. Unit five
discusses the concept of possession under the English law. The last unit
centers on the ratio decidendi of a case and the doctrine of precedent.

Take note that in this module the words ‘man’, ‘he’, ‘his’, ‘him’ are used to
describe not only male persons but also females.

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This material is purely for study purposes and is not meant for publication.
Its circulation must be restricted to students of Jurisprudence at the National
Institue of Public Administration.

Students are further encouraged not to treat this material as being

sufficiently conclusive for their training. It is merely an outline intended to
guide them in the study of Jurisprudence. Students must inevitably be
resourceful and do further reading.

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 TABLE OF CONTENTS

Page
Module Descriptor 7
Unit One: Introduction to the Philosophy of Law and
Definition of Law 9
Nature and Value of the Subject 9
Theories of Jurisprudence 10
2.1.0 Natural Law School of Thought 10
2.1.1 Introduction 10
2.1.2 Early Theorists 11
2.1.3 The Medieval Period 12
2.1.4 The Reformation 13
2.1.5 Liberal Democracy 13
2.1.6 Summary 15
2.2.0 The Positivist School of Thought 15
2.2.1 Introduction 15
2.2.2 Positivist Theorists 15
2.2.3 Some Scholars on the Positivist and Natural Law Schools
Of Thought 21
2.2.4 The Positivist Criticism of Traditional or Primitive
Societies 22
2.2.5 Summary 24
2.3.0 The Sociological School of Thought 24
2.3.1 Historical Background 25
2.3.2 What the School of Thought States 25
2.3.3 Specific Theories 26

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2.4.0 The Realist School of Thought 28
2.4.1 Causes or Influence of the Theory 28
2.4.2 Specific Theories 29
2.4.3 Criticisms 30
2.5.0 The Historical School of Thought 31
2.5.1 General Overview 31
2.5.2 Savigny 31
2.6.0 The Marxist Theory of Law 32
2.6.1 Karl Marx on Law 32
2.6.2 Criticisms 33

Unit Two: Formal and Non-Formal Sources of Law 35

Sources of Law 35
Custom 35

Unit Three: Jural Relations 37

General Overview 37
2.0.0 The Concept of Right 37
2.1.0 Various Views on the concept of Right 37
2.2.0 Situational Analyses of Rights 39
3.0.0 The Concept of Duty 40
3.1.0 Duties, Rights, and Legal Obligations 41
3.1.1 Ideas Connected with Duty 41
3.1.2 Duty and Morality 41
3.1.3 Duty and the Command Theory 41
3.1.4 Duty and Enforceability 41
3.1.5 Duty and Sanction 42

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4.0.0 Jural Relations in Detail 43
4.1.0 Jural Correlatives 43
4.1.1 Right – Duty Relationship 43
4.1.2 Privilege – No-Right Relationship 44
4.1.3 Power – Liability Relationship 44
4.1.4 Immunity – Disability Relationship 44
4.2.0 Jural Contradictories 44
4.2.1 Right – Privilege Relationship 44
4.2.2 Duty – No-Right Relationship 44
4.2.3 Power – Immunity Relationship 45
4.3.0 Jural Opposites 45
4.4.0 Distinction between Right and Privilege 45
4.5.0 Distinction between Duty and Liability 45
4.6.0 Distinction between Privilege and Immunity 46
4.7.0 Relationship between Power, Privilege and Right 47

Unit Four: Legal Personality 48

1.0.0 The Nature of Legal Personality 48
2.0.0 Natural Persons 50
3.0.0 Status 51
4.0.0 Corporate Personality 53
4.1.0 The Notion of Corporate Personality 53
4.2.0 Types of Incorporation 54
4.3.0 Theories of Corporate Personality 54
4.3.1 The Fiction Theory 55
4.3.2 The Concession Theory 55
4.3.3 The Bracket Theory 56

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4.3.4 The Realist Theory 56
4.3.5 The Purpose Theory 57
4.4.0 Theories of the Nature of Corporate Personality: Some
Practical Difficulties 57

Unit Five: Possession under English Law 61

1.0 Definition or Description? 61
2.0 Factors Relevant to Possession 63
2.1 Physical Control 63
2.2 Knowledge and Intention of the Plaintiff 63
2.3 Knowledge and Intention of the Defendant 64
2.4 The Possession of Premises 64
2.5 Other Legal Relationships or Special Rules of Law
Applicable to the Facts 65
2.6 The Policy behind the Rule 65
3.0 Conclusions on the rules and factors above 65
4.0 Loss and Finding of Chattels 66
4.1 Owner versus Finder 66
4.2 Finder versus Stranger 66
4.3. Occupier versus Finder 67
4.3.1 The wide rule in favor of the Finder 67
4.3.2 Proposed Qualifications to the wide rule above 67

Unit Six: Techniques of the Judicial Process 69

1.0 ‘Binding’: Implications of the Word 69
2.0 Status of rules of Precedent 70
3.0 Defining and Determining the Ratio Decidendi of a Case 70

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 MODULE DESCRIPTOR

AIMS
The aim of this module is to introduce students to the classical theories of
law as they evolved through the contribution of the various schools of
jurisprudence. The module also aims to enable students understand how the
concept of law has developed under different social, political, economic and
cultural conditions, and how these have shaped its content and form at
different historical epochs and in differing societies of the world.

LEARNING OBJECTIVES
Upon completion of the module students should be able to:
 Show appreciation of the fact that law is conditioned by societal
values that exist in any given society and that this is demonstrated by
the historical development of the idea of law;
 Demonstrate knowledge that law and legal institutions do not operate
in a vacuum but in the context of the social, political and cultural
forces of any given society;
 Express understanding of the fact that law has always been seen to be
a useful instrument in the maintenance of public order and as a
conflict-resolution mechanism in any society;
 Appreciate the fact that law as an institution devised by human beings
has its drawbacks and is capable of being used to attain undesirable or
oppressive ends.

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CONTENT
1. Historical introduction to the philosophy of law
2. Definition of law in the light of the principal schools of jurisprudence.
3. Central concepts in jurisprudence:
a. Jural relations;
b. Legal personality; and
c. Concept of possession.
4. Formal and non-formal sources of law
5. The techniques of the judicial process

PRESCRIBED READINGS
Dias, R.W.M (1985) Jurisprudence. London: Butterworths
Gross, H. Philosophy of Law. Belmont

RECOMMENDED READINGS
Friedman Legal Theory. 7th edn.
Guest, A.G (ed) Oxford Essays in Jurisprudence
Harris, P (1984) An Introduction to Law. London: Weidenfield &
Nicholson
Russell, B (1984) History of Western Philosophy. London: Allen & Unwin

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 UNIT ONE
INTRODUCTION TO THE PHILOSOPHY OF LAW AND
DEFINITION OF LAW

INTRODUCTION
This unit introduces the student to the philosophy of law and he principal schools of
thought on what law is. There are various schools of thought on what law is but
hereunder the concern is with what are thought to be the major schools of thought.

OBJECTIVES
It is expected that at the end of this unit, the student should be able to:
 Define law in light of the principal schools of thought; and
 Demonstrate an understanding of how the concept of law has developed over the
years.

1.0.0 NATURE AND VALUE OF THE SUBJECT

The word ‘jurisprudence’ is made up of two words namely, ‘juris’ and ‘prudentia’. ‘Juris’
means law, and ‘prudentia’ means knowledge. In other words jurisprudence is knowledge
about law; the philosophy of law.

As regards its nature, jurisprudence differs in substance from other laws in that it does not
deal with a set of legal rules and principles drawn from authorities to solve practical
problems. There have been arguments that jurisprudence cannot be classified as a branch
of law because it covers all branches of law; the argument is that it is the philosophy of
law and each branch of law has its own philosophy. The nature of jurisprudence can be
laid down as follows:
i. Jurisprudence looks at the structure, uses and function of law. It defines certain
legal concepts like a right, duty, and justice, among others, which are used in a
number of pieces of legislation;

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 ii. Jurisprudence compares the relationship between law and other disciplines. An
example could be the relationship between law and history;
iii. Jurisprudence also looks at how the law exists and functions in society; and
iv. Jurisprudence brings essential or common principles of law that exist in different
legal systems. However, it does not make an exhaustive enquiry into each
different legal system – it is general.

In terms of the value of the subject, jurisprudence is intent on developing a lawyer with a
broader outlook; a lawyer who will not only look at a piece of legislation as law
simpliciter but will look also at its social impact. It sharpens one’s own logical
techniques, reduces excessive concentration on legal rules. It enhances the intellectual
horizons of a lawyer. It encourages original thinking.

In a nutshell, jurisprudence answers or attempts to answer the question: ‘what is law?’

2.0.0 THEORIES OF JURISPRUDENCE

There are six principal schools of thought that are dealt with in this unit. These are the
natural law school, the positivist view, the sociological school, the historical school, the
Marxist theory, and the realist school. It will be seen in due course that various scholars
are identified with the various schools of thought.

2.1.0 NATURAL LAW SCHOOL OF THOUGHT

2.1.1 Introduction
In the pre-scientific era, people could not explain certain natural happenings; for instance,
the fact of the earth’s being round could not be explained. Facts such as these were
attributed to the existence of a force somewhere which controlled these happenings. It
was said that everything on earth was governed by laws emanating from this force. In
later years this belief came to be referred to as the natural law theory. The occurrence of
calamities was said to be punishment for failure to obey natural law. A number of
philosophers and occurrences in history can be associated with this school of thought.
Among the philosophers are Plato, Aristotle, Roman Empire Theorists, St Augustine, St

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Thomas Acquinas, John Locke, and Jean Jacques Rousseau. It must also be pointed out
that the medieval era, the reformation, and liberal democracy have also been associated
with this school of thought.

2.1.2 Early Theorists

a) Plato
He argued that there are certain moral rules which can be discovered by natural reason.
One can ascertain principles of natural law by reason and common sense. He said human
law is truly law in so far as it conforms to the principles of natural law. According to him,
the physical manifestation of things in a society are only a representation of what is
already laid down by a superior being, and so humans should not antagonize that set up.
He says that if it is natural for a man to act in a certain way, then he morally ought to act
in that way. The behavior of human beings is already laid down and it is discovered by
reason and common sense.

b) Sophists (Greek Theorists)

These constantly referred to natural law which was absolute and could not be changed.
They also argued that it is a duty of public authorities to recognize this natural law in
defining relations between human beings.

Aristotle was one of the Sophists. He emphasized that the State should enable man to
attain good life for which, by nature, he is destined. His argument was that for the State to
help man to attain this good life, it needs to use the law as an instrument to that end.

Aristotle also defined natural justice as that which was equal, lawful, and fair. He said
equality was not the same in all cases for everyone. He argued that we are only equal so
far as we are compared with another person in the same group or status. He said men are
unequal in both status and virtue; each individual is assigned by this super being to a
particular role and then he can only compare himself to other individuals with a similar
role.

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 c) Roman Empire Theorists
These were known as Stoa philosophers. They were trying to redefine natural law. They
said the superior being which gave the natural law was one and therefore, there ought to
be one system of law everywhere and applicable to everyone. They argued that human
beings are equal regardless of whether one is king or slave; they said all were created by
God (the superior being) and the same laws must apply to all of them.

2.1.3 The Medieval Period

This is the period when the church claimed that it was the final interpreter of the truth.
The leaders of the church at that time tried to integrate the teachings of the Greeks and
Romans with the teachings of the church. The notable philosophers for present purposes
were St Augustine and St Thomas Acquinas.

a) St Augustine
He propounded that man had become so selfish that he was interested in property and had
created institutions such as government in order to serve his selfish interests. Man had
lost direction, he argued. Therefore, in order to change the situation as it obtained, there
was need for man to turn back to God’s commandments.

He argued further that the ministers of the church were the people who had the ability to
know what or how man needed to conduct himself. He said that even legislators, before
they passed any legislation, needed to get the counsel of the men of God. Any law
enacted in disregard of natural law was not law. He argued that law OUGHT to be
compatible with natural law for it to be law.

b) St Thomas Acquinas
He postulated that Christianity was the only basis upon which a rational society would
exist. He made three distinctions of natural law:
i. External law – by which he meant law known only to God but in which
man could participate by exercising his practical reason;

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 ii. Divine law – he argued that these are directions from God on how men
should conduct themselves. The directions are contained in the Bible. He
said these directions could not be understood by just anyone picking the
Bible and reading it; they are best understood by God’s ministers who had
to interpret them to the people; and
iii. Human law – this, he said, is law made by secular rulers or authorities. He
argued that human law only qualifies to be law if and only if it is in
conformity with (i) and (ii) above.

2.1.4 The Reformation

This is the period when the church lost its authority. Before then, the church was ruling,
that is to say it was equivalent to the State. This loss of authority is attributable to two
major reasons:
i. Moral decay – there were a lot of scandals in the church such as sexual
immorality. It became evident that despite vowing to be celibate, priests were
having children; and
ii. Advent of science – when scientists came around, they were able to offer
scientific explanations for certain happenings.

As a consequence, people lost confidence in the church. The first result of this loss of
confidence was the division of the church; Protestantism was born.

The second result was that the church lost its authority of ruling and the power to rule fell
into the hands of the ordinary but rich people. This was the advent of liberal democracy.

2.1.5 Liberal Democracy

This period is associated with the argument that a system of government must have
minimal interference in the private affairs of an individual. The duty of government
should only be to protect life and property of the individual.

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The two main philosophers associated with this period are John Locke and Jean Jacques
Rousseau. They generally emphasized that human beings by virtue of being born human
beings are possessed of certain natural rights which are given to them by virtue of being
born as human beings. These natural rights cannot be given or taken away by any
authority, they postulated. A closer look at their views is now taken.

a) John Locke
He said the State should only be there to protect the security of the individual. The
individual should be left alone to carry on his life with minimum interference from the
State. He argued that there is a contract between the State and the individual.

The nature of this contract is that the individual gives as consideration to the State the
right to be ruled or governed, and the consideration from the State is to protect such an
individual’s life and property. He said that when there is failure of consideration on either
side, the contract could be terminated; for example when the government’s consideration
fails, the people have the right to terminate this contract by voting into office new
leaders.

He argued that in practice it may be thought that the government gives to the people these
rights but in reality these rights are given to the people by virtue of their being born
human.

This contract between the individuals and government should, if possible, be reduced in
writing. Locke never mentioned this, but this is the beginning of the constitution. The
constitution has been said, though not by Locke himself, by scholars as being the written
contract that Locke was referring to.

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 b) Jean Jacques Rousseau
His writings were inspired by the French revolution. He emphasized equality and liberty.
He argued that rights and freedoms of individuals should be proclaimed in writing. This
piece of document must be put in the hands of an institution which will ensure that those
rights are respected. He was the first to propound the principle of separation of powers.

2.1.6 Summary
In a nutshell, the natural law school theorists say the following:
i. That law is not law unless it is in conformity with the divine directions; and
divine directions have such contents as morality, ethics, and justice, among many
others. Therefore, law ought to contain these moral issues; and
ii. That procedure and criterion of formation of law does not, by itself make a piece
of legislation law.

2.2.0 POSITIVIST SCHOOL OF THOUGHT

2.2.1 Introduction
The positivist school of thought is directly opposed to the natural law school of thought.
It arose at a time when science was making an impact. The new scientific age was no
longer satisfied with the natural law theory. Positivists tried to define law not by its
contents but according to the form or criteria of its formation. There are a number of
notable theorists associated with this school of thought. The philosophers considered here
are John Austin, Kelsen and Jeremy Bentham; Fuller and Hart are also considered but not
as philosophers but as scholars who have written about the positivist school of thought.
The positivists’ criticism of traditional or primitive societies is also discussed.

2.2.2 Positivist Theorists

a) John Austin
He insisted that the concern of jurisprudence should be positive law; that law should be
distinguished from morality and ethics. According to him there are three major
characteristics of law:

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 i. Law as a command – commands, according to him, are expressions of
desire given by a superior to an inferior. When he refers to ‘superior’ and
‘inferior’, he does not refer to mental capacity but to the fact that there are
people endowed with the responsibility of making the commands;
ii. Commands emanate from a sovereign – by sovereign he meant people
holding positions in the government; and
iii. Law should have sanctions – if there is law, there must be a punishment
for failure to comply with it. It is for this reason that he and his disciples
argued that international law is not law because it has no sanctions.

There has been one major criticism leveled against this third characteristic of law as
conceived by Austin. This is that not all laws have sanctions; there are certain laws which
encourage certain things such as education, agriculture, health, and commerce, among
others.

Note that according to Austin, a sovereign is a body of person(s) in a political society to

whom the bulk of the population is in the habit of giving obedience. A sovereign does not
obey anyone above him, and a sovereign exists in perpetuity. By way of illustration, a
given government may end but the State continues; the State is a person which continues
to exist.
Mulundika and 7 Others v. The People (1995 - 1997) Z.R. 20

b) Kelsen
His theory of law is normally referred to as the pure theory of law. This is because in his
definition of law, he wants to exclude all elements which he considered foreign to law.
His theory of law is only concerned with that part of the knowledge of the law excluding
everything else. He endeavors to free law from non-legal elements such as ethics, morals,
justice, and sociology, among others. He insisted that the real science of law is lost if the
province of jurisprudence is mixed with these foreign elements.

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He argued further that the theory of law should be uniform and applicable equally at all
times and places. He conceived the law as a system of legal norms which are logically
united. His picture of the law appears as a hierarchy of norms. He states that a norm is not
valid because of outside factors but because of another norm which stands behind it. The
validity of each norm depends on another. He says that no matter what proposition of law
you begin with, this is traceable to some other initial norm. He argues that eventually all
individual norms are derived from a basic or initial norm which he calls the grund norm.

The grund norm is the final postulate upon which depends the validity of all norms of any
given legal system. He also calls the grund norm as the initial hypothesis. Kelsen’s
argument is that the grund norm is the basis upon which norms exist and that the grund
norm should not be questioned.

He goes further and talks about a revolution. According to him, a revolution is a situation
where the grund norm of a legal system is overthrown in a way not provided for by law.
He argues that a revolution is a situation where the legal order of a community is replaced
in an illegitimate way. He also argues that a revolution, even if initially illegal, will
become legal if successful.

In the case of The Government of Uganda v. The Commissioner of Prisons, Ex Parte

Matov (1966) EALR 514, Obote became prime minister of Uganda in 1962 and in 1966
declared himself the executive president. The 1962 constitution did not provide for an
executive president. However, Obote wrote his own constitution in 1966 disregarding the
1962 constitution. Effectively, he overthrew the 1962 constitution. Pursuant to the 1966
constitution, he issued emergency regulations under which he declared a state of
emergency. Under those regulations Matov was detained. Matov issued a writ of habeas
corpus. His lawyer argued that the 1966 constitution which Obote had issued was illegal
and invalid because it was issued contrary to the 1962 constitution, and because of that
the regulations issued pursuant to the 1966 constitution were also null and void. It was
further argued that the detention of Matov pursuant to these regulations was illegal.

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It was held that indeed Obote had overthrown the constitution in an illegal manner; and
that this was equivalent to coup d’estat. However, the court pointed out, under the new
constitution, Obote successfully established a new legal regime which was in control of
the country and had obedience from a number of the majority of the Ugandans.

Note that it is apparent from this decision that what had happened was that the original
grund norm had been overthrown and a new grund norm put in place; and a grund norm
is never illegal. In effect, the court was saying that the 1966 constitution was legal and
the regulations made pursuant thereto were legal and valid.

Kelsen emphasized that if after a revolution, the government assumed power although
contrary to the legal regime existing at the time, the government is legal and its legal
regime valid if that government is able to establish itself or it is in absolute control or the
majority of the people in that country regulate their conduct or behavior according to the
new legal order. The case of E. K. Sallah v. The Attorney-General may illustrate this
argument.

The facts of that case are that in 1966, Kwame Nkrumah was overthrown by the military.
In 1969 the government handed back power to the civilian government, and the military
government also handed the civilian government a constitution. Section 9 of that
constitution provided that “any person who occupies a position created or appointed on
the credence of the military government would have to leave the position six months after
the civilian government came to power unless they had authority or letter from the new
government”. Sallah was an employee in a statutory body. This body was created
pursuant to a Statutory Instrument of 1961. When the military government took over in
1966 the statutory body continued. In 1967, while the military was in control, the
applicant was appointed to the position of manager. Six months after the new civilian
government took over, Sallah was dismissed from employment on the basis of section 9
of the constitution. He issued court process, arguing that his appointment or position did
not exist on the credence of the military government because he was in that position
before the military government took over. The Attorney-General on behalf of the State

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argued that the 1966 military take over had amounted to a revolution; that the constitution
which existed in 1966 and all laws created under it, which laws included the law which
created the body that employed Sallah, perished. It was therefore, argued that his
continuation to hold the position in this body was on the credence and discretion of the
military and that he should vacate his position in accordance with section 9 of the
constitution.

It was held that the military coup of 1966 was a revolution as a result of which the entire
legal regime which existed prior to it perished. In respect of Sallah, the court held that the
natural meaning of the words in section 9 of the constitution was that only people who
had actually been appointed by the military should lose their jobs; and Sallah was not
appointed by the military and could as such not lose his job.

Kelsen’s theory is not without difficulty in terms of application at times. To illustrate this
difficulty, the case of Madzimbamuto v. Lardner-Burke (1969) 1 AC 645; (1968) 3
All ER 561 is instructive. This case also illustrates how difficult it is to interpret the law
when judges become political. The facts are that prior to 1965, Southern Rhodesia was
under the control of the British government which provided for the constitution and other
laws in the governance of Southern Rhodesia. The appellant sought an order declaring the
detention of her husband under a state of emergency which was proclaimed after the
resolution of parliament sitting under the 1965 constitution. She contended that the
declaration of independence and the purported introduction of the 1965 constitution were
illegal and that constitution was neither legal nor of any force or effect. In effect, she was
saying the detention of her husband was illegal.

It was held that the present government, having effectively usurped governmental powers
granted to Southern Rhodesia under the 1961 constitution, could now lawfully do
anything which its predecessors could lawfully have done. But until its new constitution
is firmly established and thus becomes the de jure constitution of the territory, its
administrative and legislative acts must conform to the 1961 constitution.

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The court held further that the decision to detain the applicant’s spouse was taken in
order to maintain peace and order which decision could have been lawful even under the
1961 constitution and as such, the detention was held to be lawful.

c) Jeremy Bentham
The major reason for formulating his philosophy which he referred to as the utility
principle was to spearhead reform in the English legal system. He was unhappy with the
system. The belief that the English legal system was perfect disturbed him. Such
principles as equality and freedom of contract were, to him, a fiction. He gave an
example of an employer-employee relationship where he said that the employee enters
into that contract with very little choice; he must choose to be employed on the terms and
conditions of the employer or choose to starve. There is no freedom of contract where the
majorities are disadvantaged and enter into contract for survival. In order to correct the
situation, he came up with the principle of utility, otherwise known as the calculus of
pleasure and pain.

According to him the purpose of law is to ensure the greatest happiness of the greatest
number. All mankind lives under the empire of pleasure and pain. The index of goodness
or badness is pleasure or pain. Everyone, whether a king or servant is governed by the
need to seek pleasure and avoid pain. He argues that the capacity of any given act to
confer pleasure and avoid pain becomes the measure of its goodness.

Bentham does not accept the traditional tests of goodness or badness based on religion or
morality. Rather the test for goodness or badness should be according to the calculus of
pleasure and pain. Every legal institution or law itself should be tested with reference to
the principle of utility. Lawmakers in the process of enacting legislation should follow
this principle of utility in order to determine whether or not a particular piece of
legislation should be passed. He gave an example of the law against gambling as a law
that took into account this principle of utility because banning gambling ensures the
greatest happiness.

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Finally, he argues that there is no such a thing as natural rights. Rights are just a fiction;
they are only rights if they are legal and prescribed by a piece of legislation. Human
beings are not born with rights but just acquire them through declarations, legislation and
the creation of the State’s legal establishment. According to him, a right is that which
grows out of the application of the principle of utility.

This last argument has been criticized. Critics have argued that in fact human beings are
born with certain rights.
Nkumbula v. Attorney-General (1972) ZR 111
Nkumbula v. Attorney-General (1979) ZR 267
Kachasu v. Attorney-General (1967) ZR 145

2.2.3 Some Scholars on the Positivist and Natural Law Schools of Thought
There have been debates amongst scholars on the positivist and natural law schools
thought. One such has been between Professor Hart and Professor Fuller; it has been
coined the Hart-Fuller debate.

a) Professor Hart
He defends the positivists’ stand on law. He starts by asking the question: ‘if we insist
that a certain law is not what it ought to be, should we obey it?’ He goes on to say that if
laws are evil or immoral, are we obliged to obey them? What do you do when the law
provides for what in your opinion is evil? Do you ignore the law and obey morality?

In answering these questions, he approaches them from two perspectives:

i. If we insist on what law ought to be, there is a danger of the laws
becoming uncertain; law and authority may be dissolved into human
beings’ conception of what they think the law ought to be;
ii. There is a danger that the existing laws may take over morality as a final
test of conduct.

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His defence of the positivist school of thought goes further to say that even the decisions
of the courts which may appear automatic or mechanical are law. He argues that even if
judges do not take into account any moral or ethical issues, the decision rendered by the
court stands as law.

b) Professor Fuller
He started by rephrasing the question of law and morals in terms of order and good order.
He argued that the positivists are mainly concerned with order but that his concern was
good order. Mere order, he says, is not good enough. By good order he meant internal
morality. He criticized Hart for completely ignoring the issue of morality. He insisted that
law must represent the human achievements and as such it cannot be a simple fiat of
power or repetitive pattern discernible in the behavior of State officials.

He said there is more to law than the positivists think. He argued that whereas law may
help to achieve order, good order can only be achieved by good laws. He gave an
example of the Nazi legal regime; he argued that going by the positivist theory of law, the
Nazi regime was a valid legal regime. The question he asked was: ‘did that regime
provide good order?’ In conclusion, he said if we really are concerned about the aspect of
inner morality, we cannot call what the Nazi had a legal system.

2.2.4 The Positivist Criticism of Traditional or Primitive Societies

The attitude has been to condemn the so-called primitive rules and replace them with
higher laws of the west. Positivists argue that societies which do not have book law have
no legal systems warranting any scholarly study. There are two main factors which
contribute to this attitude. The first one is the missionary attitude which is that traditional
systems are pagan and thus the need to destroy them.

The second is lack of studies on traditional societies. Settlers who came from Europe did
not bother to understand the way people lived in these traditional societies and for a long
time there have been no scholarly studies undertaken in respect of these traditional
societies.

23
One reason which has been advanced for concluding that these traditional societies have
no legal system is their level of economic advancement. It is argued that there is no
economic life in any traditional society.

However, African scholars have disputed the assertion that traditional societies have no
legal systems. They argue that for a long time there has been civilization in Africa in
issues such as working on iron and bronze, and mining, among others. They argue that
this civilization could not have existed without a corresponding legal system to support it.
They further argue that around 300 A.D, various empires flourished in Africa; examples
of such empires include, inter alia, the kingdom of the Congo, the Zulu kingdom, and the
Monomutapa kingdom. The administrative apparatus servicing these kingdoms obviously
needed a body of supporting legal concepts and mechanisms.

Further, most recent studies have also been made in the African legal systems in the
fields of, inter alia, procedure, criminal law, and land law among various groups such as
the Ashanti, Yoruba, and Barotse which have revealed that in fact these systems have
some form of a legal system.

In conclusion, studies on primitive societies have shown that they are based on a well
understood system of law and procedure. Most disputes in these primitive societies are
solved with machinery devoid of formalism, and this has attracted scholars to look at
alternative approaches to settlement of legal problems. It is thus necessary to avoid the
mistake of applying European standards of law and justice in attempting to understand
African customary law.

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2.2.5 Summary
a) General
According to the positivists, law is that which is laid down; for example, statute or
precedent (court decision). Positivists do admit that issues of morality or ethics do
influence lawmakers or judges in their duties but it is only the incorporation of these
moral or ethical issues into precedents and statutes which give them the quality of law.
Therefore, for positivists, law is that which IS whereas for the naturalists, law is that
which OUGHT TO BE.

For positivists, law is still law even if, in the opinion of the majority, it is unjust; it is law
as long as it has been given the mark of validity by precedents and statutes.

b) Law and Morality

Positivists insist on the separation between law and morality for two reasons:
i. Certainty – they contend that we should be able to clearly know what the
law is and what is not. They argue that one attribute of the law is for it to
be known in advance what is and what is not law. This is opposed to the
naturalists who insist on what ought to be law;
ii. Public order and peace – they argue that if man did not know in advance
what is prohibited, there would be anarchy in society. The purpose of law,
they argue, is to maintain peace and order, and that purpose would be
defeated if law was confused with such external elements as morality,
ethics and justice.

2.3.0 THE SOCIOLOGICAL SCHOOL OF THOUGHT

This school of thought is concerned with sociology which is the science of social order
and progress. Sociology endeavors to discover and observe the patterns of behavior of
people in society. The subject also endeavors to assess the needs of society and looks at
the interests of different groups in society. The theorists associated with this school of
thought include Ihering, Ehrlich and Roscoe Pound. The approach under this head is that

25
a historical background of the school of thought is given first, then a general statement of
what the school of thought states follows, and lastly the specific theories are given.

2.3.1 Historical Background

The rise of this school of thought was largely influenced by the industrial revolution of
the seventeenth and eighteenth century. Apart from bringing industrial progress, the
industrial revolution also brought about inequalities such as the exploitation of workers in
industries; the main aim of an industry being maximization of profits, workers were made
to work for long hours for very little wages. At the time of the industrial revolution the
State was not involved in the private and social affairs of the people; it was a laissez faire
scenario that existed. However, the situation of inequalities reached a stage at which it
became unmanageable and the state could no longer watch from the side lines; it became
interested in matters of the welfare of the people and these included health, education and
employment conditions.

At this stage it was realized that the state could not promote the welfare of the people
without the use of the law. It was realized that society had capacity to change for the
better through the instrument of law.

2.3.2 What the School of Thought States

The sociological school of thought states that you develop the legal order which fits into
a certain type of society. The law cannot be read outside the social context in which it
operates. The making of the law, the interpretation of the law, and the application of the
law should take into account social factors. Certain societal interests should be
recognized and given legal interest. The law is an instrument for serving the needs of
society.

The real source of law is not the statutes or precedents as positivists say but the activities
of the society itself as the law is not immobile but rather dynamic and living.

26
The major proposition of the sociological school of thought theorists is that the law in the
books is different from the law in the field. The positivists are content with the law in the
books, while the sociological theorists assert that the law in the field is most important.
They argue that there should be a sociological study before the passing of any law. It is
their contention that the lawyers’ function should not start with law books and end with
court decisions; lawyers should widen their perspective of society in order to be effective.

The emphasis by this school of thought is that one should not merely be content with
what the law is; one should assess the kind of society he is in and suggest laws which
could serve the particular society better.

2.3.3 Specific Theories

a) Ihering (1818 – 1892)
This argument is that the success of any legal process is measured by the degree to which
it achieves a proper balance between competing social and individual interests. There is
an inevitable conflict between social interests of men and each individual’s selfish
interests. Man is in a constant search for good things in society; things such as shelter,
food, and pleasure. According to him, the law should be used to control such desires but
that at the same time the law should strive to provide equal opportunity to everyone.

He argues that it is State’s duty to enact legislation which will balance individual interests
against social interests.

b) Ehrlich (1862 - 1922)

His argument centers on the impact of law in society. He looks at the social basis of law.
He says the centre of gravity of legal development does not lie on the legislative juristic
science, but in the society itself. The law is derived from social facts and the real source
of the law is the activities of society itself. The sociology of law, he argues, must begin
with the living law. By the living law he meant the way people regulate themselves in
their everyday lives.

27
He criticized positivists for ignoring the activities and beliefs of the people in the society.
He asked the question: ‘how far is the formal law observed?’ He said many disputes that
affect individuals inter se are regulated by the living law and not the book law and court
decisions.

He also argues that the scope of jurisprudence should be enlarged to concern itself with
the study of society.

According to him, the duty of legislative and judicial authorities is to give effect to the
living law.

c) Roscoe Pound
He starts by saying law is an instrument of social engineering. There are certain interests
which a legal system must take into account. He identified three such interests:
i. Individual interests;
ii. Public interests; and
iii. Social interests.

By individual interests he meant those interests which pertain to someone’s personality

such as health, freedom of contract, freedom of belief, and reputation.

By public interests he meant interests of society to be politically organized in order to

maintain the dignity of the society and protection of such society.

By social interests he meant people’s claims to peace and order and safety, security of
acquisition of property and social, economic and cultural progress.

He emphasized that the law should strive to achieve the maximum satisfaction of human
wants or needs; and by human needs he meant the three interests referred to above.

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His conclusion is that the rigid confines of jurisprudence should be broken down so that
the law should strike an alliance with other disciplines such as sociology and politics. The
old objective of law of merely keeping peace and order should be done away with.

Mulundika and 7 Others v. The People - In this case the court was trying to strike a
balance between the need to maintain peace and order, and the need for people to freely
express themselves.
‘Zambia’s Elusive Search for a Valid Public Order Act’ in Zambia Law Journal. Vol.
25-28 (1993-1996)

2.4.0 THE REALIST SCHOOL OF THOUGHT

This school of thought is looked at as a revolt to formalism (positivism); and sometimes
it is viewed as a radical wing of the sociological school of thought. In considering this
school of thought, it is intended first to look at the causes or influence of the said school
of thought then the jurists associated with it, and finally the criticisms leveled against it.

2.4.1 Causes or Influence of the Theory

This school of thought draws great inspiration from the American legal system. The
United States of America has a written constitution, which is considered the supreme law
of the land. Under this system, courts are constantly engaged in the system through
judicial review. They go as for as reviewing public policy and actions of public officers.

The realists look at the courts as a principal movement in the making of the law and they
play down the role of the legislature. To the realists what the judge says is the law;
legislation is only a source of law. Statutes only become law when they have passed
through judicial interpretation. One does not know the law until the judge has pronounced
what the law is. It is the judge who is the law giver and not the legislator. Judges have a
large part in creating law. You do not know the law merely by reading what a statute
says; you know the law when the judge says what the law is. It is for the courts to deduce
from the rules of law or the text of the statute or words which form statutes as to what the
law is.

29
The other reason why the realists argue that the judges are the law givers is that statutes
are usually of the general application. They use words which are either vague or
ambiguous and it is the law giver, who is the judge, who puts certainty in these words. It
is for this reason that realists oppose the notion by positivists that law is that which is on
the statute books enacted after the formal procedure is followed.

Law according to the realists is what the judge pronounces it to be and the judge in
pronouncing what the law is takes into account his social surroundings. Judges arrive at a
particular decision not only because of legal analysis but also because of taking into
account the social, economic, and political situations. In a nutshell, the realists reject
legal formalism which the positivists propound.

2.4.2 Specific Theories

The notable ones are Justice Holmes and John Chipman; and they are the only ones
considered here.

a) Justice Holmes
He was a judge of the Supreme Court of the United States of America; and one of the
reasons for his theory was his experience as such judge. According to him, statutes are
just a prediction of what the court will decide. The law is based on what the courts may
do other than abstract logical deductions of general rules. He says the law is an immense
expanse of knowledge; it is not a closed intellectual box. When deciding cases, courts
always have to take into account many factors. This is because the law has
interconnections with a vast range of other disciplines.

The life of the law, he argues, has not been logic; it has been experience. The decisions
that courts make are governed by the felt necessities of the times. They are also governed
by the prevailing moral and political theories. These decisions may also be influenced by
the prejudices which judges share with their fellow men. Law is not just a system of
reason and ethics but a principle.

30
The law also needs to concern itself with the views and opinions of the society at a given
time. It is only the judges who give life to statutes and the law is not static as stated in the
statute but dynamic as stated by the judges.

b) John Chipman
His emphasis was on the creative nature of the judiciary. He argued that judges take the
place of legislation. The statute only becomes law if it is interpreted by the courts. The
principle of some cases such as Donoghue v. Stevenson was not law until the judges
made it law. He says the law of a great nation simply means the opinions of half a dozen
old gentlemen for if these half a dozen old gentlemen form the highest tribunal of the
land, no rule or principle which they refuse to follow is law.

One of the people who motivated Chipman was Marshall, chief justice of the Supreme
Court of the United States of America. The chief justice had shown some creative role by
laying down some of the principal trends that have characterized the United States of
America’s judicial system. Chipman argues that statutes are not law per se but only
become law if the courts interpret them. He was in fact saying that statutes are merely
sources of law; and that the law is that which the judges pronounce.

2.4.3 Criticisms
There are two major criticisms that have been leveled against the realists:
i. There are situations when the courts have decided contrary to the earlier
decisions, and the critics ask as to which one is the law – is it the earlier decision
or the latter one; and
ii. Court decisions only interpret legislation vis-à-vis a particular set of facts. Does it
then mean that the law is different depending on which facts have been brought
before court for interpretation? Critics argue that the position taken by the realists
could lead to chaos as, then, nobody would know what the law is.

31
2.5.0 THE HISTORICAL SCHOOL OF THOUGHT
2.5.1 General Overview
This school emphasizes the importance of history in understanding the present legal
system. It states that law cannot and should not be read in isolation from history. Law is
not an abstract set of rules imposed on society but an integral part of society. We may fail
to understand law if we do not understand its historical context because each legal regime
is fashioned by the past.

This school of thought has a bias towards a term it calls the ‘test of experience’. By this
term it means a legal rule or doctrine which has survived for a long time and has met
several experiences is the best one until the better one is introduced.

There is an argument that even when the old laws are amended we should not throw them
away as they will help us understand the new laws. Therefore, legislators and judges must
refer even to repealed laws in order to come up with laws which are compatible with the
culture, traditions and customs of a particular society.

2.5.2 Savigny (1779-1861)

His main principle of law is that the law of any people is a reflection of the basic national
or tribal character. It is the spirit of the people expressed in legal form. The law is never
made but found among the people. Laws are not of universal validity but are peculiar to
the society that produces them. Laws should not be made arbitrarily but should reflect the
common conscience of the people.

He argued that it is from the traditions and customs of the people that legal rules evolve.
The law should be identical with the opinions of the people. The role of the legislature
and judiciary should be to discover the long established customs and traditions among the
people in order to give them legal effect. He says the re should be an emotional
attachment with the long established traditions and customs.

His conclusion is that it is wrong to import laws from other societies.

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2.6.0 THE MARXIST THEORY OF LAW
2.6.1 Karl Marx on Law
There are other scholars who read his theory of law after him but it is mainly attributed to
him. The first assertion he makes is that the law is an instrument used to protect and
further the interests of the dominant class. He argues that the mode of production that a
society has will condition the political, legal and social life of that society.

He also argues that it is not the conscience of men that determines their being; rather it is
their being that determines their conscience. In other words it is the type pf material
conditions that you are in that determine your thinking; for example, certain prevailing
economic factors will determine the way the ruling class will think and the type of laws
they will create.

He says where the mode of production is capitalism the kind of law that will exist is that
which will favor the interests of the capitalists. He says laws are just a code of rules
promulgated to meet the needs of the dominant class. Economic power translates itself
through the law into power of command; the law is used to convert wealth into power.
Those who control wealth or the means of production use their wealth to control the law
and the State.

He argues that the executive of the modern State is only a committee for managing
common affairs of the bourgeoisie. The State itself is also a political organization for
serving the interests of the dominant class.

According to him the law is an instrument used for oppression; the law is a shield to
existing inequalities. The law promotes such things as private ownership of property and
exploitation of the ‘have-nots’. The workers who work for the owners of the means of
production are in a subjective position because they have no equal bargaining power. For
this reason there is a continuous class struggle or conflict between the owners of the
means of production and the workers. When this conflict is finally resolved, the State and
law disappear or wither away. By resolving class conflict he means the time when the

33
workers will control the economic base and this he calls the socialist stage or dictatorship
of the proletariat. At this stage, classes still exist and the only difference is that the
workers are controlling the economic base, and this is a necessary stage for the
transformation to the final stage, communism.

At communism stage you have a classless society. At this stage there is no law and there
is no State. There is communal ownership of property. There is no exploitation because
everybody owns everything; there is no private property or private interests in anything,
and therefore law and the State are not necessary. He argues that when the law and State
have disappeared there will just be an administration of things.

2.6.2 Criticisms
There are two major criticisms to this theory of law. The first is that law cannot depend
on the economic base or the modes of production prevailing at a given time. The critics
say there are certain things which are of a human nature but which do not depend on the
economic base and cannot be put away with by putting the means of production in the
hands of the workers; for example jealousy or lust cannot be eliminated by putting the
means of production in the hands of the workers. For this reason laws like criminal law
are needed regardless of the economic set up you have in society.

Secondly, Marx did not fully explain his concept of administration of things because if
you leave things to be done by everybody, those things will never be done.

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ACTIVITY 1 – Questions for discussion:
1. Which of the schools of thought would say is most
representative of what law is?
2. Do you agree with the positivists’ assertion that primitive
societies do not have law?
3. In light of the various schools of thought considered, what
would you say law is?

35
 UNIT TWO
FORMAL AND NON-FORMAL SOURCES OF LAW

INTRODUCTION
In this unit the student is introduced to the various sources of law. Law as an institution
has several functions – the main one being that of social control. There are other
institutions which are responsible for social control such as the family, religion and
customs. The unit is very brief.

OBJECTIVES
By the end of this unit the student should be able to:
 Appreciate the various sources of law; and
 Distinguish between formal and non-formal sources of law.

SOURCES OF LAW
There are both formal and non-formal sources of law. A formal source of law is that
which derives its validity from some rule of law; whereas non-formal sources of law
provide the raw material for law. Examples of formal sources of law are the legislature,
the executive and the judiciary. Examples of non-formal sources of law include customs
and traditions. In effect there are three main sources of law, namely:
i. Legislation;
ii. Court decisions; and
iii. Customs.

CUSTOM
There are two types of custom – the general and the specific or local customs. A general
custom is one of general application to a wider area and usually more than one society. A
very good example of a general custom is common law.

Specific or local customs are specific to a particular group of people within a society. For
a custom to become law it must have the following attributes:

36
 i. It must have existed for a long time;
ii. It must be continuous;
iii. It must be enjoyed as a right and not only as a privilege;
iv. It must be certain and precise;
v. It must not be unreasonable, repugnant to justice, equity and morality. This aspect
of custom is captured in section 16 of the Subordinate Courts Act CAP 28 of the
Laws of Zambia. The case of Jairus Kaniki v. The People (1967) Z.R. is
instructive on the issue of repugnancy;
vi. It must not be in conflict with fundamental principles of common law;
vii. It must not be incompatible with any other long established custom; and
viii. It must be a local custom in respect of the society which intends to make it law.

ACTIVITY 2 – Questions for discussion:

1. Discuss the concept of repugnancy in relation to customs as
sources of law?
2. Are the above topics the only sources of law?

37
 UNIT THREE
JURAL RELATIONS

INTRODUCTION
In this unit is a consideration of jural relations; and the legal relationships existing
between people such as rights and duties. The specific subjects covered include rights,
duties, privileges, no-right, power, liability, immunity, and disability; also considered are
morality, the command theory, enforceability, and sanction in so far as they relate to
duty.

OBJECTIVES
By the end of this unit, the student should be able to analyze various jural relations.

1.0.0 GENERAL OVERVIEW

Hohfeld analyzed jural relations and came up with what has come to be known as
Hohfeld’s table of jural relations. Hohfeld’s table of jural relations lists three categories
of jural relations, namely jural correlatives, jural opposites, and jural contradictories.
According to Hohfeld, jural correlatives contain right and duty, privilege/liberty and no-
right, power and liability, and immunity and disability; jural contradictories have right
and privilege, duty and no-right, power and immunity, and liability and disability; and
jural opposites are found right and no-right, privilege and duty, power and disability, and
immunity and liability. This constitutes a bundle of jural relations with implications of
legal relations between people.

2.0.0 THE CONCEPT OF RIGHT

2.1.0 Various Views on the Concept of Right
There have been advanced various views on what a right is. For present purposes only six
views are considered. The first one relates right to the behavioral pattern of life; it is
argued that the concept of right is based on the said pattern. The belief is that a right
emanates from morality. In other words there is a relationship between morality and a
right. However, this view raises some difficulty because it is not certain when morality

38
becomes a right. It is fallacious to say that whatever is moral becomes a right; in fact it is
possible to have a right which is immoral. Only that which is recognized in law as such
which is a right. The case of Bradford Corporation v. Pickles (1895) A.C. 587
illustrates the fact that a right needs not be moral. In that case the Defendant was the
owner of land through which ran a stream. Out of ill motive the Defendant obstructed the
stream thereby injuring the neighbor (the plaintiff).

It was held that he had aright to do so irrespective of the fact that his action was immoral.

The second view is one advanced by Ihering and Salmond; they argue that a right is
founded on interest. But the question is: ‘what is an interest?’ In addition, the right does
not necessarily coincide with an interest because there are instances where an interest and
a right can vest at the same time and in the same person; for example, a trustee is legal
owner and yet the interest in equity is that of the beneficiary. Another example relates to
an employer and his employees; it is in the interest of the employer that the workers
should not go on strike but he cannot stop them from doing so. Therefore, it is only
interests that are protected at law that give rise to rights.

A further view is that of Vinogradoff who finds rights to be based on the psychological
mental attitude of demanding and claiming. This view, like the ones above, is not without
difficulty. The problem with it is that not all demands are rights. A number of instances
can be put forward to buttress this assertion; a promise to be given money on one’s
birthday does not give the promisee a right to the money even if he demanded it as there
is no consideration. Likewise, a marriage promise does not give the promisee a right.
Further there are some people who have no attitude of demand; these include infants and
even adults may have rights which they are not aware of but which the law recognizes as
being possessed by them. In Cooper v. Phibbs, there was a contract to take a lease of a
fishery and yet unknown to these parties, the fishery belonged to the other party.

The House of Lords set aside the contract on the ground that the fishery belonged to the
other party.

39
The fourth view is held by Lundsted who defines a right as simply the favorable position
of a person on account of the functioning of the legal machinery. He argues that
therefore, judges should be thinking of social ends and not rights. But then, some social
ends are mischievous as in the case of Pickles above.

The other view is that of Holland and Gray; they find a right t be correlative to duty
enforceable at law to uphold that right. However, the problem is that primary duties may
not have sanctions. The view of Holland and Gray is only valid if it is taken to mean a
demand or claim. In Seymour v. Pickett (1905) 1 K.B., one part of the creditor’s claim
was actionable while the other was not. The debtor was aware of this and only paid an
amount for the actionable debt without specifying. The creditor credited the debt which
was not actionable and brought an action for the actionable debt.

It was held that the creditor was entitled to do so.

The last view is advanced by Professor Olivercrona who emphasizes title as the origin of
right. He argues that as soon as the facts constituting title are established then the person
has a right. However, this view does not really answer the question: ‘what is a right?’ It is
a short cut to the answer to what a right is.

2.2.0 Situational Analyses of Rights

It should be noted that rights involve numerous jural relations; thus Hohfeld’s scheme is
of assistance in analyzing what a right is. Four situations are given hereunder in this
analysis:
i. If you say that Y has a duty to X, this relationship will be expressed in terms such
as: ‘you must not do …’ In this situation what is being said is that there are
certain things Y must not do and therefore, that X has a claim or right in relation
to Y; in other words Y is under a duty not to do something to X;
ii. X’s freedom to do something to Y could be expressed thus: ‘I may do or I may
not do…’ This situation entails a liberty or freedom on the part of X. the freedom
or liberty is not taken to be a right in the generic sense. Privilege and liberty

40
 entail a discretion, and this will be found in a situation where giving is concerned
– one is at liberty to give or not to;
iii. X’s ability to alter Y’s legal position may be expressed as: ‘I can…’ This
situation entails that X has a power. A power is that right which one gets to alter
the legal position of another for better or for worse; for instance, a testator
making a will has power to alter the legal position of the beneficiary; and
iv. Y’s inability to alter X’s legal position could be couched in the following terms:
‘you cannot…’ It entails that X has immunity against Y.

According to Hohfeld’s scheme, jural relations should only be conceived of between the
parties and not those affected by the same.
Chapman v. Boyd (1963) 2 Q.B. 502

3.0.0 THE CONCEPT OF DUTY

3.1.0 Duties, Rights, and Legal Obligations
Legal obligations arise from rights and duties. Duty in the abstract form is a prescriptive
pattern of conduct that is legally recognized. Duty is the recognition whish technical.
Where a duty exists, it entails that courts accept that model of conduct. Thus the
existence of a duty depends on whether the kind of conduct, the result of the conduct, and
the person are recognized by the law. The question then is: how is one to know that these
three elements are or are not recognized by the law? The answer is simply, by knowing
the law. Therefore, duty in this instance is always a question of law. It is a question of
judicial policy; but it may also be a result of the legislative process.

Duty represents the official idea of how people ought to behave. The sphere of
recognition of a duty changes with times; it is dynamic.
Donoghue v. Stevenson – on the law recognizing the duty of care as extending, in a
restricted form, to a manufacturer-consumer relationship.

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 3.1.1 Ideas Connected with Duty
There are some ideas connected with duty; these are morality, command, enforceability,
and sanctions.

3.1.2 Duty and Morality

Legal and moral duties are different. Often moral duties have an influence on legal
duties; and they in fact often become legal duties and at that point lose their morality.

The moral duty is to behave properly but the legal duty, if put negatively, is not to behave
improperly. Moral duties reinforce legal duties. Both duties are prescriptive and ‘ought’
in nature but a legal duty is enforceable in law whereas a moral duty is not. However, this
is not to say that a moral duty is sanctionless; it only means that the sanction of a moral
duty is not in the command.

3.1.3 Duty and the Command Theory

The command theory in question is the Austinian one. However, not that, strictly
speaking, duty has nothing to do with command per se. It cannot be generalized and said
that duty derives from command; for instance who can be said to have commanded the
law, or who commands the judges and members of parliament?

Commands have been known because of the imperative form they take. Professor
Olivercrona has observed that duties are merely expressed in an imperative form and we
may as well call them an independent imperative. The notion of command should
therefore be discarded. Duties are therefore notional patterns framed in imperative form;
for example by use of words such as ‘shall’ and ‘must’.

3.1.4 Duty and Enforceability

The two have been confused. Enforceability has two meanings in relation to duty,
namely:
i. Compelling the observance of a pattern of conduct: or
ii. An indirect method of infliction of a penalty.

42
Some have argued that there can be no duty without enforceability. But actual observers
note that if you have to observe a directive in imperative form, there are two duties:
i. Primary duty; and
ii. Secondary duty.

The prescription or command that ‘do this’ entails observance of a primary duty. The
carrying out of a primary duty is expressed as specific enforcement; and when this is
breached, a secondary duty arises and can be enforced to remedy the breach.

Sir Carleton Allen says duty cannot be enforced by anything but individual conscience. In
this instance the only way is to provide sanctions in the hope that their obedience will
prevent breach thereof; even if there is a positive primary duty that ‘do something’ there
is no assurance that obedience will be ensured. In other words, Allen is rebutting the
presumption that duty can only exist where there are sanctions. There are some primary
duties which can be enforced such as by an order for specific performance, or the issue of
a writ of habeas corpus.

3.1.5 Duty and Sanction

A number of authorities have maintained that the existence of duty is predicated on
sanctions prescribed for breach of a duty. Dias has attacked this assertion on the
following grounds:
a) For law abiding people, the importance of duty is not in the sanctions when there
is a breach but its importance is in compliance with it;
b) Sanction is an ambiguous term which may mean three things:
i. That a duty exists when something happens. However, sanction may fail;
for example where a thief steals and is not caught, the sanction would have
failed but that does not mean the thief had not duty not to steal;
ii. The operation of a sanction depends on the observance of duty and the
other way round. Duty is an ‘ought’ prescribing a pattern of conduct but
sanction, though associated with duty, is independent. For instance
tribunals do not go to sanctions to establish duty but go to facts; it is only

43
 after a duty has been identified that the sanction comes into play.
Therefore, to say a sanction creates a duty is a fallacy. In Hagues v.
Harwood (1935) K.B. 146, the Court of Appeal awarded damages
because it recognized duty;
iii. A means to an end, that of ensuring compliance with a duty. How people
ought to behave is one thing, what can be done to make them do so is
another; and
c. Judges and lawyers do speak in terms of duty even where there is no sanction
Dickson v. Del-Solr (1930) 1 K.B. 376

4.0.0 JURAL RELATIONS IN DETAIL

The starting point is an explanation of the meaning of the three categories of jural
relations. Jural correlatives entail a situation in which the one’s existence in person A is
dependent on the existence of another in person B. Jural opposites do not relate; they are
not dependent on each other. Jural contradictories entail the presence of one negates the
existence of another in the same person.

4.1.0 Jural Correlatives

4.1.1 Right – Duty Relationship
The concept of right has been explored above, and thus needs not be considered here.
Duty is a pattern of behavior prescribed by the law. Those who have a duty must behave
according to the prescription by law.

It should be noted that sometimes the rights holder may have no redress in that some
duties are sanctionless; for example much as diplomats have a duty to take care, breach of
such duty cannot be enforced at law since diplomats have an immunity. However, this is
more of an exception than a general rule.

Note that every right entails a correlative duty; but not every duty entails a correlative
right as in the case of sanctionless duties. In other words the existence of a right in A
entails a correlative duty in B and, though not always, vice versa.

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 4.1.2 Privilege – No-Right Relationship
Whenever privilege exists in one person, there exists correlative to it, no-right in another
person. Thus these two are also jurally correlative. Privilege does not mean the same
thing as right or claim. See Salmond’s view on privilege.

4.1.3 Power – Liability Relationship

Power connotes the ability of a person to alter one’s own legal position or that of the
other for better or for worse. Liability entails the legal position of a person that can be
altered for better or for worse. Thus power and liability are jurally correlative; the
existence of power in one person entails the existence of liability in another person. In
other words, where A has power, B has a liability.

4.1.4 Immunity – Disability Relationship

This is a relationship between persons where the person with immunity entails disability
on the other. The one with a disability has no power o act against the other because that
other is immune. Immunity means freedom from a power; and disability in turn means
absence of a power.

4.2.0 Jural Contradictories

4.2.1 Right – Privilege Relationship
If Y has a right, then there is a duty in X; but the existence of a duty in X means the
absence of privilege in X. In this sense right and privilege negate each other. In other
words, the presence of right in Y negates the existence of privilege in X and vice versa.

4.2.2 Duty – No-Right Relationship

If A has a privilege, then there is no-right in B; and the presence of no-right in B entails
the absence of duty in A. In other words duty and no-right negate each other.

45
 4.2.3 Power – Immunity Relationship and Liability – Disability Relationship
These two sets of jural relationships are also representative of jurally contradictory
relationships. Thus for example, where A has immunity, he can have no liability; and this
implies that B has no power in relation to A.

4.3.0 Jural Opposites

Jural opposites mean that the presence of one in a person entails the absence of another in
that person. Thus for example, the presence of privilege in a person entails the absence of
duty in that person; and where A has a liability there is an absence of immunity in him.
Refer to Hohfeld’s table.

4.4.0 Distinction between Right and Privilege

Right implies duty whereas privilege does not. A right can be distinguished without
affecting the privilege because privilege is discretionary. A non-parishioner attending a
church service has a privilege to enter the church but he has no right not to be prevented
entry. In Cole v. Police Constable 443A (1937) 1 Q.B. 316; (1936) 3 All E.R. 107 the
plaintiff, a non-parishioner, entered the church but was ejected therefrom by the Dean at
the instance of the constable.

It was held that the plaintiff had no cause of action because a privilege to enter did not
entail a right not to be prevented from so doing.

It should be noted thought that had the plaintiff been a parishioner, he would have both
the privilege and the right to enter the church. In a nutshell, privilege begins where duty
ends.

4.5.0 Distinction between Duty and Liability

The distinction is more relevant in relation to the relationship between customer and
bank. If X deposits or lends a thing to Y, Y has no duty to restore the thing to X until
there is a demand from X. it also means that the bank in the interim is under a liability to
be placed under a duty. Thus before the duty arises there is only the liability of Y. In

46
Tidd v. Obdrereal (1893) 3 Ch. 194, it was held that for the time of limitation, you
begin counting the time from the date the demand is made.

A deposit to a bank amounts to a loan; and once a demand is made, the bank must pay (it
is under a duty to pay).
Joackimson v. Swiss Banking Corporation (1921) 3 K.B. 110

In Seaval Estate Co. Ltd v. Ford (1949) 2 K.B. 94, a debenture holder appointed a
receiver to pay preferential claims first and then the residue to be paid to the company.
Judgment creditors wanted to attach a certain amount of money before the receiver had
paid the preferential claims.

It was held that the judgment creditors could not attach any part of sums of money to the
company because the duty had not yet arisen. The duty would only arise when the
preferential claims had been paid. In the interim, the receiver is under a liability to pay
the preferential claims first.

4.6.0 Distinction between Privilege and Immunity

This is best demonstrated by use of the case of a diplomat. A diplomat, like any other
person, has a duty and capable of breaching that duty and liable to pay damages but he
has an immunity and one has no power to compel him to pay damages. He is immune
from the legal process but he has no privilege to breach his duty. In Dickson v. Del-Solr
(1930) 1 K.B. 376, it was held that an envoy is under a sanctionless duty but that duty has
been suspended by his immunity. However, he is liable to pay damages but you cannot
enforce this at law. This position notwithstanding, an insurance company can pay
damages on behalf of the diplomat because it is the diplomat who has immunity and not
the insurance company.

Note that a diplomat, who waives his immunity to pay damages and volunteers to pay,
cannot later invoke the immunity not to pay.

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 4.7.0 Relationship between Power, Privilege and Right
This can be illustrated by the case of a testator as follows:
i. A testator has the privilege to make or not to make a will;
ii. In the making or not making of a will, the rights of a testator against other
people are not to be interfered with; and
iii. A testator has power to affect the beneficiaries’ legal positions for better
or for worse.
In other words a testator has the right, privilege and power in the above example.

Another illustration relates to the right to vote. In Ashby v. White (1703), this right was
held to mean the following things:
i. Power coupled with privilege to exercise it; and
ii. The voter has a claim or right not to be prevented from voting.

Furthermore, in Pryce v. Belcher (1847) 4 C.B. 866 in which the plaintiff was not
admitted to vote because he was a non-resident. It was held that the case revealed four
things, namely:
i. The plaintiff exercises power by tendering the vote;
ii. This imposes a duty on the returning officer to accept the vote;
iii. If the returning officer did not accept the vote, he would be in breach of
his duty; and
iv. The plaintiff’s power did not tally with the right to expect that there would
be a fulfillment of a duty by the returning officer.

ACTIVITY 3 – Questions for discussion:

3. Look up Hohfeld’s table of jural relations and analyze the
various relations it brings out.

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 UNIT FOUR
LEGAL PERSONALITY

INTRODUCTION
In this unit, the concept of legal personality is discussed. The topics covered include the
nature of legal personality and the theories about the nature of corporate personality,
some practical difficulties relating to the said theories, and types of incorporation.

OBJECTIVES
It is expected that by the end of the unit the student will be able:
 Explain the nature of legal personality;
 Understand the distinctions between natural persons and corporate persons;
 Demonstrate an understanding of the meaning of status;
 Analyze the various components of the concept of legal personality; and
 Appreciate some difficulties relating to the various theories of corporate
personality.

1.0.0. THE NATURE OF LEGAL PERSONALITY

It has been asserted that legal personality is an artificial creation of the law; and legal
persons are all entities capable of being right and duty bearing. Further, a legal person is
recognized by the law as capable of creating and entering into legal relationships. The
question to be asked is whether the nature of legal personality has been clearly defined.
Salmond gave two formulations in relation to legal personality. He argued first that so far
as legal theory is concerned, a person is any being whom the law regards as capable of
rights and duties whether he be a human being or not; and any being not so capable is not
a person even if he is a human being.

Later, Salmond said a legal person is any subject other than a human being to which the
law attributes personality; and that this extension of the concept o legal personality is one
of the greatest feats of legal imagination.

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The two formulations above have been said to cause confusion. It has been argued that in
one breath ‘person’ refers to anything recognized by the law as capable of bearing rights
and duties whether human or not, and in the other, human beings are persons with
personality but non-human beings may be legal persons. In order to remove some of the
confusion referred to above and to have a clearer understanding of the nature of legal
personality in the sense which refers to the rational individuality of a human being. There
may be advanced three reasons for the need for this distinction, namely:
i. Human beings do not necessarily possess legal personality. For instance
in early legal systems slaves were treated as mere chattels, and aliens
could not bring an action in courts;
ii. Human beings may possess limited legal personality. Examples include
infants and lunatics; and
iii. Legal personality can be granted to entities other than human beings
although in the performance of human actions, the acts of the legally
recognized representatives of such entities are attributed to the legal
persona of the entities. Such entities include corporations.

It is clear from the foregoing that legal personality is not the same as person in the sense
of the rational individuality of a human being. Legal personality then refers to the
particular device by which the law creates or recognized units to which it ascribes certain
powers and capacities.

It must be emphasized that the concept of the legal person is independent from a human
being; in other words it is erroneous to equate or make it dependent on human being. Just
as ‘one’ is a pure concept in arithmetic and independent of ‘one something’ (such as ‘one
orange’), so is the concept of legal person in law. Therefore, the use of the word
‘personality’ to indicate that an entity is recognized by the law as a legal person and also
to indicate the differences in the capacities of legal persons is perhaps unfortunate. It
would thus appear to be necessary to be careful to distinguish between the occasions
when the words ‘legal personality’ are used to refer to the fact that some entity has been

50
recognized as a legal person and the occasions when reference is to the differing legal
personalities of entities whose recognition as legal persons is assumed.

Note that much as a distinction must be drawn between ‘legal personality’ and ‘human
personality’, the nature of the latter may be vital to the question whether or not humans
should be recognized as legal persons and to questions as to the rules which shall govern
their legal rights, duties, liabilities, powers, and capacities, among others. It has been
asserted that the mere recognition of legal persons, as such, remains a basic juristic
device by which the organizing of rights and duties is made possible.

2.0.0. NATURAL PERSONS

The question may be asked as to when the legal personality granted to human beings
begins and ends. It has already been seen that human beings by virtue of them being
human do not necessarily possess legal personality. Examples have been given of slaves
as human beings who were not possessed of legal personality; and the case of a monk
who enters a monastery in some legal systems may be added to the class of human beings
who have no legal personality.

Today, the norm is to grant legal personality to all human beings, such personality begins
at birth and ends at death. What is meant by birth?

It is a requirement in most legal systems that birth entails complete extrusion from the
mother’s body. Therefore, as a general rule a child in the womb has no legal personality
and can have no rights. However, one clear exception to this rule is the extension that
English law has made in respect of inheritance; an unborn child is entitled to take a
benefit in the estate of his deceased father if it is born alive. The reasoning behind this
exception to the general rule is that it is reasonable that a child who has lost his father
should not be further penalized by losing any interest which he would have secured had
he been alive at his father’s death.

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An assertion has been made above that legal personality ceases at death; it is argued that
if birth is necessary to create rights so death, generally ends rights. As a general rule the
dead have no rights and can suffer no wrongs. However, some causes of action survive
the deceased; the personal representatives can recover on behalf of the deceased’s estate.
Similarly, the estate of the deceased may be liable in actions commenced against the
deceased during his life. It can therefore be argued that death does not in all cases end the
rights of the deceased. In fact the Fatal Accidents Act 1846 gives a remedy to certain
dependants in cases where the breadwinner has been killed; this arguably extends the
legal personality of a human being beyond death.

It is clear that the assertion that legal personality begins at birth and ends at death may be
difficult to reconcile with some of the rules in force in most legal systems. This difficulty
notwithstanding, the assertion holds for most legal systems in large measure.

3.0.0. STATUS
Another concept which relates to legal personality is status. The word ‘status’ has no
precise connotation but it is very important concept in law. Various scholars have given
this word a number of meanings. Salmon has attributed four meanings to status, namely:
i. Legal condition of any kind, whether personal or proprietary;
ii. Personal legal condition excluding proprietary relations;
iii. Personal capacities and incapacities; and
iv. Compulsory as opposed to conventional legal position.

Austin on the other hand points out that the term cannot be used with exactness. He
argues that however when for ease of exposition it is useful to separate a complex of
rights and duties, of capacities and incapacities which specifically affect a narrow class, it
is convenient to designate that complex by the term status.

Allen describes status as the fact or condition of membership of a group of which the
powers are determined extrinsically by law; and affecting not merely one particular

52
relationship but being a condition affecting generally though in varying degrees a
member’s claims and powers.

It should be noted that there are many factors that lead to the creation of status. The
factors include sex, marriage, minority, illegitimacy, mental or bodily defects, caste,
official position, profession, criminality, and foreign nationality.

There are a number of points involved in Allen’s description of status. The first is that
status arises from membership of a class and the powers of that class are not determined
by agreement between the parties involved but are determined extrinsically by law. A
member of a class cannot vary the conditions imposed by law.

Secondly, the law does not always impose a particular status on somebody for life.
Therefore, the law will not always impose membership of a group; for example one
cannot be forced into the status of marriage against one’s will. However, there are certain
groups, such as infants, upon which status is imposed.

Thirdly, membership of a status does not always result in restricted power; and status
does not only create incapacities but capacities as well.

Fourthly, not all groups give rise to status; membership of a group must affect one’s legal
relations or one’s power to enter legal relations. No legal status attaches to such natural
attributes as height or color.

Lastly, Maine has argued that status normally arises due to a defect in judgment of the
members of the class in question. It has been argued though that this argument is not
universally true as it is not always that defect in judgment is the reason for persons being
accorded a particular status. An example is given of ambassadors; that these may suffer
from occasional defects of judgment but that this is not the reason why the law places
them in a special status.

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Allen distinguishes between status, capacity and rights. He argues that status is a
condition; capacity a power to acquire and exercise rights; and rights being what are
acquired by the exercise of the capacity referred to. In Hohfeld’s terms, it could be said
that status is the condition of being a member of a particular group, which membership
affects in general claims, liabilities, power, and immunities.

Maine has argued that the movement of the progressive societies has hitherto been a
movement from status to contract. This proposition should not be treated as a universal
law of legal history; to treat it as such is dangerous. However, when the difficulty of
rising above the level which birth imposed upon a person is contrasted with the
comparative freedom of social movement in the modern world, there appears to be
justification for Maine’s proposition.

It must be pointed out finally that the term ‘status’ is ambiguous; and its ambiguity is
such that there is no need for dogmatic assumptions, and, even on Allen’s test, it is a
question of degree whether the modification of powers and claims is sufficiently general
to justify an assumption that a status has been created.

4.0.0. CORPORATE PERSONALITY

4.1.0. The Notion of Corporate Personality
In mature legal systems the doctrine of corporate personality is fully developed and a
clear-cut distinction is made between the individuals who compose a corporation and the
corporation itself. It is recognized that a corporation or company has a legal persona
distinct from that of the shareholders or directors. By contrast a partnership does not exist
as a separate legal person from the partners. A company, other than the unlimited one,
has limited liability but a partnership formed under the Partnership Act 1890 has
unlimited liability. Thus a shareholder may retain his money while the company goes
bankrupt but a partner must answer to the last kwacha for the debts of the firm. A man
may, therefore, become his own preferred creditor by taking debentures from a company
in which he is majority shareholders; and as a consequence other creditors of the
company can only recover after the debentures have been satisfied.

54
Salomon v. Salomon and Co. (1897) A.C. 22

The formation of a company introduces a new legal persona which owns assets.
Wurzel v. Houghton (1937) 1 K.B. 380

There is a clear-cut distinction between the personality of the company and the
personalities of its members. The company may engage in juristic acts, sue and be sued.
Though all the members change overnight or they all die, the company remains the same
legal persona.
ZCCM and Ndola Lime Ltd v. Sikanyika and Others SCZ Judgment No. 24 of 2002
Newton Siulanda and Others v. Food Corp Products Ltd (2002) Z.R. 36

4.2.0. Types of Incorporation

Under English law there are two main types, namely the corporation aggregate and the
corporation sole. A corporation is an incorporated group of co-existing persons; and a
corporation sole is an incorporated series of successive persons. In Zambia, the most
common types of company are private companies (which may be limited by guarantee or
shares, or be unlimited), public companies, and statutory corporations. Most of the
companies obtainable in Zambia may come under the broad head of the corporation
aggregate.

On the other hand, examples of the corporation sole in Zambia include the Administrator-
General and the Minister of Finance and National Planning.

4.3.0. Theories of the Nature of Corporate Personality

A number of theories have been advanced in describing the nature of corporate
personality. There are five notable theories namely, the fiction theory, concession theory,
brackets theory, realist theory, and purpose theory.

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4.3.1. The Fiction Theory
The theory is traceable to the period of Pope Innocent IV’s reign; it has taken many forms
and has been put to various uses. In its modern form, it can be attributed mainly to
Savigny. Savigny argued that besides natural persons the law knows as subjects of
proprietary rights certain fictitious, artificial or juristic persons. The corporation is one
such subject he identified, arguing that this ideal person must be separated from those
natural persons who are called its members. Before Savigny, Coke had made reference to
corporations as invisible, immortal, and resting only in intendment and consideration of
the law; Blackstone had also described corporations as artificial persons. Marshall, CJ in
Dartmouth College v. Woodward 4 Wheat. 518 at 636 defined a corporation as an
artificial being, invisible, intangible, and existing only in contemplation of law.

Salmond on the other hand argued that the corporation has existence but has no real
personality in the philosophic sense. The law, according to him, imagines that the
corporation is capable of exercising its will and performing acts, and imputes to it the acts
of certain agents.

It should therefore, be noted that according to this theory, a corporation cannot have a
personality of its own; it has no will, no mind, no ability to act. It can only have so much
as the law imputes to it by a fiction (that is to say as though it were a real person). It has
been deduced from the fictional nature of the corporation that as it has only a fictional
will imputed by the law, it can only will lawful things. It follows from this deduction that
a corporation cannot make itself liable for certain kinds of legal wrongs; for example it
cannot commit a crime involving any mental element. Some of the practical effects of
this theory will be discussed later.

4.3.2 The Concession Theory

This theory is sometimes confused with the fiction theory. It postulates that the law is the
only source from which legal personality may flow. This is obviously true because
whatever one may think the law should do, few would maintain that legal personality can

56
be secured otherwise than by compliance with the conditions laid down by the legal
order.

4.3.3 The Bracket Theory

This theory rests on the proposition that only human beings can have interests and rights,
and that a corporation is only a legal device which enables very complex jural relations to
be understood more simply. The argument is that when a group of people form a
company, it is cumbersome to always refer to all of them; and as such a bracket is placed
around them to which a name is given. And in order to understand the real position, the
bracket must be removed. One value of this theory is that it emphasizes that the corporate
veil may be lifted when need arises.
Wolff, 54 L.Q.R. (1938) 497

According to Kelsen, there is essentially no difference between the legal personality of a

company and that of an individual; that legal personality is only a technical
personification of a complex of rights and duties. He argues that the law individualizes
certain parts of the legal order and establishes a certain unity I the rights and obligations
pertaining to it, but that this is only a technical means of securing facility of procedure,
for all that is real consists of the rights of human individuals.

4.3.4. The Realist Theory

This theory builds on an analysis of human personality, and considers group personality
as essentially possessing the same characteristics. Gierke suggest that a group has a real
mind, a real will, and a real power of action.

However, it has been argued that this theory may not be applied with similar ease to
various groups; it may be more easily applied to certain groups than to others. An
example is given that there may be very real analogies to human personality in the life of
a nation, a group, or a university, but a one-man company (not obtainable in Zanbia0 or a
foundation seems worlds removed.

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4.3.5. The Purpose Theory
This theory is premised on the assertion that really only human beings are persons. The
theory postulates that be this as it may, the law protects certain purposes as well as the
interests of individual beings. As such, it is argued, all juristic or artificial persons are
merely legal devices for protecting or giving effect to some real purpose.

4.4.0 Theories of the Nature of Corporate Personality: Some Practical Difficulties

An examination of English writing reveals that there is a diversity of views as to which
theory best explains decided cases relating to the nature of corporate personality. Some
have argued that English law has adopted the fiction theory, others the realist;
Holdsworth’s view is that no theory has been adopted except that the corporation should
be treated as far as possible like a natural man, and that practical considerations, rather
than the logic of theory, should be the guiding force. Clearly, this diversity of views
shows the real difficulties that arise in translating any general theory into practical rules
of law. A number of illustrations relating to some of the practical problems referred to
above are given hereunder.

The starting point is that English law makes a clear-cut distinction between a company
and the individuals who compose it. For example in Re Eutrope (1932) V.L.R. 453, a
company had only two shareholders who were also directors; by the articles the directors’
fees were to be determined by a meeting of shareholders and the two men (as
shareholders) voted to the directors practically all the profits, the object being to secure a
lower rate of income tax. It was held that the validity of this procedure could not be
attacked in liquidation proceedings, however unreal the distinction between the powers of
the directors and the shareholders might be on the facts of the particular case.

However, the problem becomes more complex in the case of a parent corporation
creating subsidiaries controlled by the parent body. Questions arise as to: whether a
parent corporation which is prohibited by law from transporting goods manufactured by
itself can transport goods manufactured by a subsidiary company which has been set up
to evade the law; or whether a company which has undertaken not to engage in a certain

58
business within a particular town can legally set up subsidiary to carry on that business.
This has given rise to the question of when the corporate veil of a corporation may be
pierced to examine the reality beneath. It has been argued that the solution to the problem
when to pierce the corporate veil is dictated by practical needs, and the theory to be
applied is a realism which holds, not that corporations are real persons, but that they
should be treated as such except where there are imperative reasons to the contrary.
Smith, Stone & Knight Ltd v. Birmingham Corporation (1939) 4 All E.R. 116
Kahn-Freund, O (1944) 7 Mod. L.R. 54
Gower, L.C.B. (2nd Ed.) Modern Company Law, Ch. X

Justice Cardozo cautioned that care should be taken in examining the problem of the
relation between parent and subsidiary companies. In Berkey v. Third Avenue Railway
244 N.Y. 84 at 94, he pointed out that ‘the whole problem of the relation between parent
and subsidiary corporations is one that is still involved in the mists of metaphor.
Metaphors in law are to be carefully watched, for starting as devices to liberate thought,
they often end by enslaving it’.

Another aspect of the present discourse is that early English cases show a tendency to
regard a corporation as possessing only a fictitious will (even if the fiction theory was not
expressly adopted); and thus the argument that a will which was imputed by law could
not commit an offence, for the fictitious will was imputed only for the pursuit of lawful
ends. However, later developments have shown that corporations have been held liable
for certain crimes.
Welsh, R.S. (1946) 62 L.Q.R. 345

It should be pointed out that imputation of criminal liability to a corporation has brought
about its own difficulties. One such difficulty is as regards what punishment to impose if
the only possible sentence is imprisonment or death. Another difficulty is that there is a
presumption against imputing the mens rea of an agent to the principal; yet the company
can only act through agents. This last difficulty may be circumvented by treating acts of
the primary representatives of the company as the acts of the company itself. Who then,

59
for purposes of criminal liability, are the primary representatives of a company? Are mere
servants included?
D.P.P. v. Kent & Sussex Contractors Ltd (1944) K.B. 146 approved by the C.C.A. in
R. v. I.C.R. Haulage Ltd (1944) 2 All E.R. 515

Still on the question of criminal liability of a company, Welsh is of the view that a
corporation can be indicted and that whether the criminal act of a n agent can be regarded
as the act of the company itself must depend on the nature of the charge, the relative
position of the officer or agent, and pother relevant facts and circumstances of a
particular case.

A further difficulty for present purposes relates to foreign companies. As regards

recognition of foreign companies, application of the concession theory logically would
mean that a French company has no legal personality in Zambia unless Zambian law
grants it personality. However, common sense and convenience require the recognition of
the personality of foreign companies. In this respect, a corporation has been treated as far
as possible like a natural man, but this has been due to the practical needs of business; it
has not been due to deductions from any particular theory.

The residence of a corporation raises quite some problems as well. For instance, for
purposes of liability for income tax, English law uses a realist test, which requires a
determination of where the head and brains of the company are situated. In the case of
domicile, the approach is to consider the place of registration; and in determining enemy
character, actual control is of the essence.

It will be seen from the above survey that it is not possible to regard any one theory as
affording an easy answer to the question which theory best explains the nature of
corporate personality.

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ACTIVITY 4 – Questions for discussion:
1. Discuss the various theories of the nature of corporate personality and
ascertain which one, if any, accurately represents the nature of the
said personality.
2. To what extent would you say the Zambian legal system has been
influenced by the English concept of legal personality?

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 UNIT FIVE
POSSESSION UNDER ENGLISH LAW

INTRODUCTION
This unit deals with another central concept in jurisprudence. Many jurists have
attempted to analyze the concept. The unit is intent on showing the student the difficulties
that go with an attempt to define a term such as possession. The unit also looks at various
factors that are relevant to the concept of possession; an analysis of various limbs to the
loss and finding of chattels is also undertaken. It will be seen that English decisions
preclude us from laying down any conditions, such as physical control or a certain kind
of intention, as absolutely essential for a judicial ruling that a man possesses something.

OBJECTIVES
By the end of this unit the student should be able:
 Analyze the concept of possession in light of the various possessory rules;
 Appreciate the factors that are relevant to the concept of possession;
 Understand the intricacies that surround various cases of loss and finding in
relation to the concept of possession; and
 Understand the fact that the possessory rules herein considered are not exhaustive.

1.0 DEFINITION OR DESCRIPTION?

The concept of possession has developed through judicial interpretation. It is a central
concept in jurisprudence. So far as English law is concerned there has not been worked
out a completely logical and exhaustive definition of ‘possession’. In fact, Professor Hart
has shown that it is impossible to define a legal concept, and that the task of legal writers
should be rather to describe the use of a word like ‘possession’, in the particular legal
rules in which it occurs. It is said that ‘possession’ in the legal sense has no meaning at
all apart the rules of law in which it is used as a tool of legal thought.

It is clear from the foregoing that the concept of ‘possession’ cannot be studied in the
abstract; instead what should be studied is the way in which it is used in English rules of

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law as the word has no meaning apart from the context of these particular rules. In line
with this position, some ‘possessory’ rules in English law are considered as follows;
i. The plaintiff in an action of trespass to goods must have been in possession at the
time of the interference alleged against the defendant.
ii. The plaintiff in an action for conversion of goods must, at the time of the
conversion, have either been in actual possession of them or been entitled to the
immediate possession of them.
iii. As soon as the vendor of land has let the purchaser into possession under an oral
contract, there is an act of part performance which renders it too late for either
party to repudiate the contract on the ground that there is no memorandum or note
in writing as required by section 40(1) of the Law of Property Act, 1925.
iv. Where an owner of land is entitled to possession, the twelve-year period of
limitation under the Limitation Act, 1939, runs against him from the moment
adverse possession is taken by another.
v. ‘Delivery’ means voluntary transfer of possession from one person to another
(section 62 of the Sale of Goods Act, 1893).
vi. Where a mercantile agent is, with the consent of the owner, in possession of
goods, any sale, pledge or other disposition of the goods, made by him when
acting in the ordinary course of business of a mercantile agent, shall be valid
(section 2(1) of the Factors Act, 1889).
vii. A bailee receives possession of a thing from another upon an understanding with
the other to keep and return to him the specific thing.
viii. The expression ‘owner’ includes any part owner, or a person having possession or
control of or a special property in anything capable of being stolen (section
1(2)(iii) of the Larceny Act, 1916).
ix. A taking, for purposes of larceny, consists in acquisition of possession without the
consent of the previous possessor to part with the possession.

The above possessory rules deal with such different situations that it is not surprising that
English judges have not adopted any consistent approach to the meaning of possession.
They have used ‘possession’ in the various rules of law as a functional and relative

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concept, which gives them some discretion in applying an abstract rule to a concrete set
of facts. Various cases show that the courts are evolving a list of factors which must be
considered when deciding whether a litigant’s relationship to the chattel amounts to
possession. A number of such factors are considered hereunder. It must be pointed out
though that the list of factors examined hereunder is not exhaustive for there is no reason
why judges should not in future be faced with additional factors which ought to be
considered on the issue of possession. Note also that no single factor should be
considered to be necessarily decisive on the issue of possession.

2.0 FACTORS RELEVENT TO POSSESSION

2.1 Physical Control
This refers to the degree of physical control over the chattel actually exercised or
potentially exercisable. The party with the greater degree of physical control is likely to
be held to have possession of the chattel in issue. A high degree of physical control is
necessary for the original acquisition of possession and ownership of something not
possessed or owned by anyone. By way of illustration it has been held in cases of the
capture of fish and wild animals that possession is acquired only when the thing cannot
escape of its own power; the net must have closed completely around the fish; close
pursuit short of actual capture, of a wild animal is likewise insufficient.
Young v. Hichens (1844) 6 Q.B. 606
Pollock and Wright, Possession in the Common Law, pp 37, 125-126

2.2 Knowledge and Intention of the Plaintiff

The plaintiff’s knowledge of the existence of the chattel, its major attributes or qualities,
its location at the relevant time, and his intention in regard to it are relevant in
ascertaining whether the chattel was in his possession or not. The weight to be given to
the plaintiff’s knowledge and intention depends on whether the defendant or any stranger
also had such knowledge and intention. Surely if the plaintiff is the only person who
knows of the chattel and its location, and is the only one who intends to exercise control
over it, his claim to possession of it is strengthened.

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2.3 Knowledge and Intention of the Defendant
The defendant’s or stranger’s knowledge of the existence of the chattel, its attributes and
location, as well as his intention in regard to the chattel are important in determining the
weight to be given to the plaintiff’s knowledge and intention in respect of the chattel in
dispute. The parties’ intention is crucial and decisive in many cases especially those
involving delivery or bailment of chattels. The intention of a previous possessor of the
chattel to deliver possession or exclusive control over it may be considered. On the
question of intention the case of Ashby v. Tolhurst (1937) 2 K.B. 242 is of help. The
question was whether there had been a bailment when the plaintiff left his car in the
defendant’s car park for a nominal fee. The Court of Appeal decided that there was no
intention to deliver possession to the defendants. There was merely a license whereby the
defendant granted the plaintiff permission to leave his car on the defendant’s land; the
plaintiff had possession of it even while it was on another’s land.

In commercial transactions, delivery of chattels or bailment thereof is decisive. For

instance goods under lock and key may be delivered to another person by delivering the
key, partly as a symbol of possession, and partly as transfer of control.

2.4 The Possession of Premises

Possession of premises may entail occupation, ownership and ownership, or licenceeship,
or trespass on the part of the plaintiff. The same may be true for the defendant. Thus, in
order to protect an occupier against trespassers, the courts are likely to hold that an
occupier possesses chattels lying on the premises despite his ignorance of them.

Similarly possession of a vehicle or container in which a chattel is lying may be favored

in deciding who possess the chattel therein; this is so even if the possessor of the vehicle
does not know of the chattel.
William v. Phillips (1957) 41 Cr. App. Rep. 5 (concerning refuse placed in a dust cart).

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2.5 Other Legal Relationships or Special Rules of Law Applicable to the Facts
There are a number of legal relationships in which the question of possession may need
to be resolved. One such relationship is that between a master and his servant. As against
his master, a servant, who in the course of his service receives chattels from his master,
has mere custody of them and not possession; the master retains possession through his
servant. The master in such case enjoys possession irrespective of factors such as
physical control, knowledge, intention or occupation of premises.

Other relationships where special rules regarding possession have been developed include
bailor – bailee, principal – mercantile agent, and buyer – seller relationships. Similarly a
guest using the chattels of his host has custody; the host has possession even though the
guest may have complete physical control at the moment. Likewise a shopkeeper retains
possession of goods which he permits a customer to handle and inspect.

2.6 The Policy behind the Rule

The last factor will involve the court considering the social purpose of the rule of law
relied upon by the plaintiff in order to establish possession.

3.0 CONCLUSIONS ON THE RULES AND FACTORS ABOVE

A cursory examination of the selected possessory rules above will reveal the quite
different topics they cover; naturally the policies behind the different rules must vary, and
this justifies the courts in giving varying weight to the different factors relevant to
possession according to the particular rule in question. The lack of consistency in the
English decisions on possession is quite defensible on this ground. Emphasis on a
particular factor may assist the court in carrying out the purpose of one possessory rule,
whereas a similar emphasis on the same factor would hinder the achievement of the
purpose of another rule.

It will be noted from the above discourse that judges seem to have had at the back of their
minds a perfect pattern in which the possessor has complete, exclusive and unchallenged
physical control over the object, full knowledge of its existence, attributes and location,

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and a manifest intention to act as its owner and to exclude all other persons from it. But
in the practical world, however, the judges realize that justice and expediency compel
constant modification of the ideal pattern, as shall be seen soon.

4.0 LOSS AND FINDING OF CHATTELS

The topic of loss and finding of chattels has provided some of the most difficult problems
on possession in English law. Though few reported cases are available, a careful
classification of the different situations leads to clarity. This is attempted hereunder.

4.1 Owner versus Finder

An owner has a right to possession and can enforce it by an action for possession or
detinue; but the owner must first make a demand for it. In Clayton v. Le Roy (1911) 2
K.B. 1031, it was held that as soon as the owner is ascertained, the finder must return the
chattel to him.

Note that the honest finding is not a trespass as the honest finder will take steps to
discover the true owner of the chattel; his taking of possession is for the purpose of
protecting the chattel on behalf of the owner. This Pollock termed an ‘excusable taking’.

4.2 Finder versus Stranger

A finder acquires possession of the chattel by taking it into his control. He can sue a
stranger in trespass or conversion. In Armory v. Delamirie (1772), it was held that the
finder of a jewel, though he does not by such finding acquire absolute ownership, has
such property in it as enables him to keep it against all but the true owner; and that he
may maintain an action.

In an action for conversion a finder may rely on his possession at the material time in the
place of the usual title of a plaintiff in conversion. A finder’s possession is unassailable as
against strangers.
Bird v. Fort Francis (1949) 2 D.L.R. 791

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4.3 Occupier versus Finder
As between them, both are obliged to give to the true owner once he has been found.
Further, morally neither of them has a better claim over the other by virtue of the fact that
the owner does not show up within a reasonable time. In Roman law and some American
States the windfall must be shared between the occupier and the finder. However, English
law lays down no rule which expressly deals with the problems of occupier and finder.

4.3.1 The Wide Rule in Favor of the Finder

Some English cases favor the finder as against an occupier. A case in point is Bridges v.
Hawkesworth (1851) 21 L.J. Q.B. 75. In that case the question was who was entitled to
possession of money found by a customer in a shop if the owner was not found; was it the
shopkeeper (occupier) or the customer? Patteson relied on Armory v. Delamirie (a finder
versus stranger case) and held in favor of the customer. This decision has been the subject
of academic controversy with some eminent criticizing it as having been wrongly
decided. Doctor Harris has stated that in his opinion the decision of the Bridges case was
thus: in the absence of a claim by the true owner, the finder of a lost article has a better
claim to it than anyone else, including even the occupier of the premises where it was
found. It would appear that the decision ignores the differences between the finder versus
occupier and finder versus stranger situations; thus a number of qualifications are
suggested to this wide rule in favor of the finder.

4.3.2 Proposed Qualifications to the Wide Rule in Favor of the Finder

a) Finding on Private Property not open to the Public
In the Bridges case the money was found on the floor of the public part of the shop.
Would the decision have been different if the money was found in a private part of the
shop where customers had no access? The case of South Staffordshire Water Company
v. Sharman (1896) 2 Q.B. 44 could be of help. In that case the plaintiffs owned and
occupied land covered by a pool. Sharman was employed by them to clean out the pool,
and he found two gold rings in the mud at the bottom of the pool. The police were unable
to find the owner, and so the plaintiffs brought detinue against their servant. It was held
that where a person has possession of a house or land, with a manifest intention to

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exercise control over it and the things which may be upon it, then, if something is found
on that land, whether by an employee of the owner or by a stranger, the presumption is
that the possession of that thing is in the owner of the place.

Contrast the Sharman case with Hannah v. Peel (1945) K.B. 509 – the Bridges case was
followed in this case.

b) Finding by a Trespasser
There is no clear answer in civil law as to whether such finder becomes entitled to its
possession. English criminal law punishes such finder if he has a guilty intention. It
would appear unlikely that the civil courts would grant possession to such a one
Hibbert v. McKiernan (1948) 2 K.B. 142
Shamabanse v. The People

ACTIVITY 5 – Questions for discussion:

1. Discuss the English concept of possession in the context of Zambian
law relating thereto.
2. What are your thoughts on the wide rule in favor of a finder?

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 UNIT SIX
THE TECHNIQUES OF THE JUDICIAL PROCESS

INTRODUCTION
In this unit, we are concerned with the ratio decidendi of a case and the doctrine of
binding precedent. The unit discusses the following topics: implications of the word
‘binding’, status of rules of precedent, defining the ratio decidendi of a case, and
determining the ratio decidendi of a case.

OBJECTIVES
By the end of this the student should be able:
 To explain the nature of the ratio decidendi of a case; and
 To understand the intricacies inherent in the doctrine of binding precedent.

1.0 ‘BINDING’: IMPLICATIONS OF THE WORD

There have been many attempts to explain and understand the doctrine of precedent.
Inevitably the meaning or implications of ‘binding’ is of the essence in this respect.
Being bound clearly implies the existence of some sort of obligation. Many jurists have
advanced various arguments on the implications of the word binding in relation to the
doctrine of precedent. Some writers have argued for instance that the doctrine of
precedent, of which the doctrine of binding precedent is an integral part, is a fiction or
device which conceals legal change and the exercise of judicial discretion.

In relation to the word ‘binding’ one may ask as to whether the superior court is the one
which binds the lower courts or whether the lower courts are the ones who bind
themselves as they decide whether or not the case cited should be followed in any
particular case. Sir Carleton Allen says the lower courts bind themselves as the superior
court does not impose fetters on the lower court; the lower court places the fetters on its
won hands – it has to decide on its own whether or not it is bound.

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2.0 STATUS OF RULES OF PRECEDENT
It has been argued that the doctrine of precedent must consist only in a set of propositions
about the judges in various courts as a matter of fact do; and that cases on this doctrine
can only be sensibly be cited as evidence of certain facts of judicial behavior. However,
when cases are cited in legal arguments and in judgments to provide support for
arguments, and justifications for decisions, they are not being used as evidence of
historical facts. The function of these arguments and decisions is not to increase
knowledge of the truth, but to show what ought to be done by judges and to justify what
judges have decided to do. In a nutshell cases are used to indicate standards of conduct,
and cases on the doctrine of precedent are used to indicate standards of conduct for
judges.

Further, binding authorities serve only as proofs of the way in which a law-making power
has been exercised in fact; not as proof of the law-making competence as Doctor
Williams seems to suggest.

The doctrine of binding precedent can be said to be that the House of Lords (in the case
of Zambia the Supreme Court) has power to make rulings about the status of its own
decisions, whether they are binding or not; that all its decisions, unless given per
incuriam or in ignorance of a statute, are binding; and that a decision of that court is
binding. The doctrine as stated above has been recognized by the judges, lawyers and, to
a limited extent, members of society.
London Street Tramways Ltd v. London County Council
Davies Jokie Kasote v. The People (1977) Z.R. 75

3.0 DEFINING AND DETERMINING THE RATIO DECIDENDI OF A CASE

3.1 Definition
The term ratio decidendi is normally used to refer to some binding rule or rules to be
found in decided cases; some rule which a later court cannot generally question. The ratio
decidendi can be alternatively stated to be the relevant part of a decision which has
binding force. The question arises as to what relevance means in this context. In resolving

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this question limitations are placed upon the rule-making power of judges. The limitation
is that only a rule acted upon in court can rank as a binding rule subject to exceptions
such as the per incuriam rule. The fact that the rule has been acted upon is the hallmark of
relevance in the above context.

3.2 Determination
The problem of determining the ratio decidendi of a case is quite separate from the
problem of defining the same. The question is how do you determine what the ratio of a
case is? There is no one single technique that a lawyer can utilize in determining the ratio
of a case. It has been argued that to search for a satisfying answer to the question ‘how do
I determine the ratio decidendi of a case?’ is to search for a phantom.

ACTIVITY 6 – Questions for discussion:

1. Distinguish between definition and determination of the ratio
decidendi.
2. Would you say the doctrine of binding precedent has reduced the
courts to mechanical devices in rendering their decisions?

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