JURISPRUDENCE – Guiding Notes

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.

This material is purely for study purposes and is not meant for publication.

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

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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
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

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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
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

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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
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

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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

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

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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.

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

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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.

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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;
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

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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

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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 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.

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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.

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.

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 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;
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

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 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

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the constitution. The constitution has been said, though not by Locke
himself, by scholars as being the written contract that Locke was referring
to.

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

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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:
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.

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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.

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

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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

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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.

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

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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 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.

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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.

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

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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

25
into account this principle of utility because banning gambling ensures the
greatest happiness.

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?

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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.

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

27
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.
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

28
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.

2.2.5 Summary
a) General

29
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

30
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 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

31
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.

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)

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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.

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.

33
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.

34
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

35
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.
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

36
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.

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

37
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.

2.5.0 THE HISTORICAL SCHOOL OF THOUGHT

2.5.1 General Overview

38
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.

39
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.

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;

40
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 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.

41
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.

ACTIVITY 1 – Questions for discussion:

1. Which of the schools of thought would say is most

42
 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?

43
 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

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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:
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?

45
 2. Are the above topics the only sources of law?

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

46
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 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.

47
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 a right 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.

48
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.
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.

49
 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 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.

50
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.

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

51
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

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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.
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

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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 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

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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.
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

55
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

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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.

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.

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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 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.

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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.

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.

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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.

UNIT FOUR
LEGAL PERSONALITY

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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

61
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.

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.

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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 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

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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.

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

64
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.

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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 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.

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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.

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.

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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.
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

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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

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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 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

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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.

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

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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 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

73
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

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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, 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.

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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.

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

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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 law as the word has no meaning apart from the

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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.

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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 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

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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.

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

81
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

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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, 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

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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

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

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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 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

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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

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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.

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.

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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 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.

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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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