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03 Jan

JURISPRUDENCE I.8 FUNDAMENTAL LEGAL CONCEPTS

FUNDAMENTAL LEGAL CONCEPTS.

Professor Wesley Newcomb Hohfeld (1879-1918) an analytical jurist gifted jurisprudence the concept of Jural Relations (jural opposites and jural correlatives). He wanted to clarify certain notions which he called “lowest common denominators”. They include:

    (1) (2) (3) (4)
JURAL OPPOSITES Right
No-right
Privilege
Duty
Power
Disability
Immunity
Liability

 

    (1) (2) (3) (4)
JURAL CORRELATIVES Right
Duty
Privilege
No-right
Power
Liability
Immunity
Disability

 

Jural opposite means the limit beyond which a person cannot go. The existence of one element (e.g. right) implies the non-existence of the other element (no-right) in the same person. E.g. If you have a right, the opposite of your right is no right. As was noted in Gresswood V State of Connecticut, that the right of free speech does not include a right to spit fire[1]. The opposite of privilege is duty. E.g. If a person has a privilege to attend a wedding he is not under a duty to do so. Meaning that a person with privilege has no duty. Therefore, if Dr Akaayar has the priviledge of parking in the Faculty’s car park, he is not under a duty to do so. In Tunji Braithwaite V Minister of Internal Affairs, the court noted that since the minister is at liberty (it was at his discretion) to issue an international passport to the defendant, he is under no duty to issue it.

Jural Correlatives on the other hand states that the existence of one element (power, right, priviledge…) in one person implies the existence of the other (correlatives) in another person. The correlative of right is duty. E.g. If A has a right against B, then B has a duty to honor A’s right. E.g. If Professor  Ibidapo has a right to park in the Faculty of Law Car Park, the park-attendant has a duty to let him park. If the law students have a right to a clean and healthy learning environment, the faculty has a duty to provide same. If the students of Unilag have a right to write exams and have their scripts marked, the lecturer has a duty to mark the scripts and record the results. If the public has a right to pass the third mainland bridge, Mr John has a duty not to obstruct passage with his broken down car. If A has a right to live, B is under a duty not to take A’s life. the examples go on and on[2].

Kocourek criticised Hohfeld’s theory for confusing physical liability with legal liability. He said that Hohfeld failed to distinguish between rights in rem[3] and rights in personam[4].Similarly Adams Smith noted that Hohfeld failed to understand the difference between physical and legal control. Freeman criticised Hohfeld, noting that most, if not all of Hohfeld’s examples are drawn from private law. Furthermore, that most of his concepts are inadequately explained.

Hohfeld has also been criticised for Neologism. E.g. that the use of terms like;  “no-right” is a confusion.

Prof Oyebode said that critics should be soft on Hohfeld because he was young and lived for only 29 years.

Fundamental Legal Conceptions are terms that are constantly employed in daily legal use. They include:

Right: is that which can be enforced by an action. Vinogradoff sees it as “a kind of claim”. Salmond: “an interest of benefit recognised by law”. Holmes: “prophesies or expectation”. Gray: “rights are essentially protected choices”. Dworkins: “rights are trumps over other arguments”. Raz: “a person has a right when an aspect of his well-being is sufficient reason for holding some other person or persons under a duty”. He further noted that right has a beneficiary on one hand and a second party who is under a duty to act or refrain from acting by virtue of the beneficiary’s right. A right is an (actionable and enforceable) advantage conferred on a person or group of persons by a rule of law. E.g. Section 33 of the 1999 Constitution guarantees the right to life.

Liberty/Priviledge: it is what a person may do for himself. He may decide to or not to do it. Non-existence of restraint nor obligation. The jural opposite of privilege is duty. See Olaniyan V Unilag.

Power: Ordinarily means the ability to do something. It is the ability to effect changes in legal relations. E.g. when a court declares on the rights and liabilities of the parties, when A sells his car to B[5], e.t.c. The jural opposite of power is disability. E.g. an infant or insane.

Immunity: It is a shield from the sword of law. May be sovereign[6], diplomatic or consular. Section 308 of the 1999 Constitution confers immunity on Presidents, governors and like persons. The jural opposite of Immunity is liability. The jural correlative of immunity is disability. As was held in Ahmed Tinubu V IMB Securities; where a governor has immunity, enforcement agencies are disabled from exercising their power of prosecution while he remains in office. In Savannah Bank V Ajiloh, the court held that the mortgage was immune from the power of sale by operation of the law since the governor’s consent had not been obtained.

Possession: described as legal advantages derivable from legal control. Possession after a long time usually transforms into ownership. Possession needs the intention to remain in possession and the exclude others-Davies V Lagos City Council. Usually physical ownership. Once the thing possessed is lost, there is no more possession.

Ownership: Defined in Abraham V Olorunfunmi as: a complete and total right over a property. Right to use, dispose, alienate without the consent of another party. He is the alpha and omega of his property[7]. Ownership generally comes with the right to exclude others. Even where the property owner is lost the owner still retains ownership.

Person: is an entity endowed with capacity. A “person” has the ability to possess rights and obligations. An infant or insane person is regarded as a non-entity and cannot enter into a binding contract. Except it is a contract for necessaries. In the past, slaves had no capacity. “Person” is divided into natural and artificial. -Natural person refers to biological. Human beings with capacity while Artificial persons are creations of the law. E.g. an  incorporated entity like a company[8]. they usually have perpetual succession, can sue and be sued-Salomon V Salomon.

 

[1] There are also some derogations provided under Section 45 of the 1999 Constitution.

[2] Other examples shall be noted while discussing the fundamental legal concepts.

[3] Right enforceable against the whole world. E.g. nobody should deny the fact that A is married to B if a court pronounces on the validity of their marriage.

[4] Enforceable against certain persons (not the whole world). E.g. A and B enter a contract for the supply of goods. B cannot go and sue a third party C to supply the goods. He should only enforce his right against A.

[5] Lord Atkin has noted that power tends to corrupt and absolute power corrupts absolutely.

[6] In international law a sovereign cannot be sued in another territory. E.g. Dragging the Federal Government of Nigeria before the U.S. courts in U.S. However, Lord Denning in Trendtex V CBN held that a sovereign can be tried where it engaged in acts which an ordinary person would (like contract, commerce… and it cannot evade obligation because it is a sovereign). Note also Kramer Italo V Embassy of Belgium in Lagos and Govt of Belgium. Same point has been enacted in Foreign Sovereign Convention of 1972 U.K, Sovereign Immunities Act 1976 U.S.

[7] Note that this definition of ownership is subject to various statutory and common law limitations like, sc 22 LUA which requires the consent of the governor to be sought before land is alienated, nuisance, Rylands V Fletcher. Thus the owner of a land is not the “alpha and omega” as he cannot use his land in any manner if such use would contradict or contravene the law.

[8] There are various theories of incorporation like: Purpose theory: Why the co was set up.

Enterprise Theory: that people who pool funds together constitute the corporation.

Symbolic Theory: that people use the company as a means to achieving their goals.

Kelsen Approach: That the company is a norm.

Fiction Theory: That companies don’t exist in reality but are a creation of the mind-Lon Fuller.

Realist Theory: that the company exists in reality and even survives the members.

Concession theory: that the company is alive because the state permitted it to be. E.g. CAC grants certificate of incorporation to companies.

Organic Theory: That companies just like the human body, has different organs E.g. Board of Directors, shareholders, and so on.

Isochukwu

Quite eccentric really

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