CUZL411 Jurisprudence I Module PDF

CAVENDISH UNIVERSITY ZAMBIA
BACHELOR OF LAW (LLB)
CUZL411 JURISPRUDENCE MODULE

HISTORICAL INTRODUCTION TO THE PHILOSOPHY OF
LAW (CUZL411) MODULE
Prepared by:
MR V CHANZA ADV.DIP.LAW .ASS.DG.(ICM) PGD.DIP.LAW.LLB ,LLM (CUZ)
2011
Table of Contents
PREFACE ...........................................................................................................................
1
MODULE DESCRIPTOR .................................................................................................. 2
1. UNIT ONE: INTRODUCTION TO THE PHILOSOPHY OF LAW AND
DEFINITION OF LAW ...................................................................................................... 5
1.1. INTRODUCTION ................................................................................................... 5
1.2. OBJECTIVES ..........................................................................................................
5
1.3. NATURE AND VALUE OF THE SUBJECT ........................................................ 5
1.4. WHAT IS JURISPRUDENCE ................................................................................ 6
1.5. THEORIES OF JURISPRUDENCE ..................................................................... 11
1.6. NATURAL LAW SCHOOL OF THOUGHT
....................................................... 11 1.7. POSITIVIST SCHOOL OF THOUGHT
............................................................... 17 1.8. THE SOCIOLOGICAL SCHOOL
OF THOUGHT .............................................. 26 1.9. THE REALIST SCHOOL OF
THOUGHT ........................................................... 29 1.10. THE HISTORICAL
SCHOOL OF THOUGHT ................................................ 32 1.11. THE MARXIST
THEORY OF LAW ................................................................ 33
2. UNIT TWO: FORMAL AND NON-FORMAL SOURCES OF LAW .................... 36
2.1. INTRODUCTION ................................................................................................. 36
2.2. OBJECTIVES
........................................................................................................ 36 2.3.
SOURCES OF LAW ............................................................................................. 36
3. UNIT THREE: JURAL RELATIONS
...................................................................... 38 3.1. INTRODUCTION
................................................................................................. 38 3.2. OBJECTIVES
........................................................................................................ 38 3.3.
GENERAL OVERVIEW .......................................................................................
38
3.4. THE CONCEPT OF RIGHT ................................................................................. 38
3.5. THE CONCEPT OF DUTY .................................................................................. 41
3.6. JURAL RELATIONS IN DETAIL ....................................................................... 44
3.7. 4.2.0 JURAL CONTRADICTORIES .................................................................... 45 4.
UNIT FOUR: LEGAL PERSONALITY .................................................................. 50
4.1. INTRODUCTION ................................................................................................. 50
4.2. OBJECTIVES ........................................................................................................
50
4.3. THE NATURE OF LEGAL PERSONALITY ...................................................... 50
4.4. NATURAL PERSONS .......................................................................................... 52
4.5. CORPORATE PERSONALITY ........................................................................... 55
CAVENDISH UNIVERSITY Page ii
4.6. THEORIES OF THE NATURE OF CORPORATE PERSONALITY ................. 56

5. UNIT FIVE: POSSESSION UNDER ENGLISH LAW ........................................... 62
5.1. INTRODUCTION ................................................................................................. 62
5.2. OBJECTIVES ........................................................................................................
62
5.3. DEFINITION OR DESCRIPTION?...................................................................... 62
5.4. FACTORS RELEVENT TO POSSESSION ......................................................... 64
5.5. CONCLUSIONS ON THE RULES AND FACTORS ABOVE ........................... 66
5.6. LOSS AND FINDING OF CHATTELS ............................................................... 67
6. UNIT SIX: THE TECHNIQUES OF THE JUDICIAL PROCESS .......................... 70
6.1. INTRODUCTION ................................................................................................. 70
6.2. OBJECTIVES
........................................................................................................ 70 6.3.
‘BINDING’: IMPLICATIONS OF THE WORD.................................................. 70
6.4. STATUS OF RULES OF PRECEDENT
.............................................................. 71
6.5. DEFINING AND DETERMINING THE RATIO DECIDENDI OF A CASE .... 72
CAVENDISH UNIVERSITY Page

iii
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. Its circulation
must be restricted to students of Jurisprudence at the Cavendish University Zambia.
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.
CAVENDISH UNIVERSITY Page
MODULE DESCRIPTOR
Module Descriptor
Programme Bachelor of Laws
Title: Jurisprudence I: Historical Introduction To The Philosophy Of

Law
Reference/Code CUZL411
Description
The module covers classical and traditional theories of jurisprudence.
The aim of the module is to introduce students to the classical theories
of law as they evolved through the contribution of the various schools
of thought.
The course also aims to enable students understand how the concept
of law has developed under different social, political, economic and
culture conditions and how these have shaped its content and form at
different historic epochs and in different societies of the world
LLB Stage YEAR THREE
Prerequisites: None
Module leader TBA
Tutor TBA
Developed By Tembo,Kenneth
Teaching
Hours: Approximately:
45 hours class contact time or equivalent
120 hours of independent study
Learning
On completion of the module students should;
Outcomes:
1. Show appreciation of the fact that law is conditioned by
society valves that exist in any given society and that this is
demonstrated by the historic development of the idea of law.
2. Demonstrate knowledge that law and legal institutions do not
operate in a vacuum but in the context of the social, political
focus of any given society.
CAVENDISH UNIVERSITY Page 2

3. 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.
4. Appreciate the fact that law as institution devised by human
beings has its drawback and is capable of being used to attain
undesirable or oppressive ends.
Teaching methods will be centered on lecture sessions and case
Teaching
study sessions. Seminars and tutorials will be used to augment these
Methods: methods
Assessment:
Continuous Assessment (15%)
Test (15%)
Case study (10%)
Final Examination (60%)
40% for the assignments/Tests/Case Study and 60% for the written
examination
Assessment Weighting.
Module Content
Topics to be covered will include the following;
1. Historic introduction to the philosophy of law
2. Define of law in the light of the principle school of
jurisprudence.
3. Central concepts in jurisprudence which include rights and
duties, legal obligations, legal personality, possession and
ownership.
4. Formal and non-formal sources of law. Importance of law in
society.
5. Law as distinguished from other techniques of social control,
such as morality, custom, religion, power, etc.

Prescribed Reading
1. Carlson Anyangwe (2005), An outline of the study of

Jurisprudence, Lusaka. UNZA Press.
2. R.W.M Dias(1985) Jurisprudence, London: Butterworth’s
3. H. Gross, Philosophy of Law, Belmont: Sweet and Maxwell.
Recommended 1. P. Harris (1984) Ann introduction to Law, 2nd Edition.

Reading London: Weidenfield and Nicholson.
2. B. Russel (1984) History of Western Philosophy, London:
Allen and Unwin.

1. UNIT ONE: INTRODUCTION TO THE PHILOSOPHY
OF LAW AND DEFINITION OF LAW
1.1. 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.
1.2. 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.
1.3. 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 law1.
According to Lord RADCLIFFE in his book called the law and its compass 1961 he said this
and I quote
’You will not mistake my meaning or suppose that I depreciate one of

the great humane studies if I say that you cannot learn law by learning
law if it is to be anything more than just a technique it is to be much than
1
David Lyons, Moral Aspect of Legal Theory

itself. A part of history, a part of economics and sociology, a part of
ethics and a Philosophy of life2.
1.4. WHAT IS JURISPRUDENCE

This question has raised a lot of concerns and attention among so many jurists including
Terence Phormio who once stated ‘Quot homines tot sententiae’, this is because every jurist
has his own notion of the subject matter and a proper limit of jurisprudence but the approach
is governed by his allegiance or allegiances of his society, this are generally called in
articulate major premises also known as ideological cleavages ordinary meaning
ideological factors.
The ideological factors are always implicit rather than openly avowed.
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
2
Karl Llewellyn on Jurisprudence (1962)

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.
Jurisprudence is a theory and philosophy of law with its main aim to understand the
fundamental nature of law and to analyses its purpose, structure and application and hope
to obtain a deeper understanding of law, the kind of power that it exercises and its role in
human societies. In practical terms some jurists hope to improve society by studying what
the law is and what it ought to be and how it operates.
The common starting point in understanding jurisprudence is the objective of law to achieve
justice. The positive law which is in the written legal statutes and case law is used as a
foundation to ‘TEST’ philosophical theories.
Ideological Factors
Today the ideological factors are more easily such as legal Positivism, Natural law and
Legal Interpretivism are easily descneable than in earlier times by way of an example is the
most claranging ones are the distinction between the basic outlook or soviet block i.e
socialism or communism and the western blocks i.e Capitalism. Other ideological factors
are those between countries whilst traditional theories reflect the old ideologies such as
natural or utilitarialism.
Contemporary Jurisprudence
Contemporary jurisprudence tends to reflect the civil disobedience mushroomed from the
last decade arising from the urban crisis and the war in Vietnams. Law also reflect the
ideologies of its place in time. This is because similar characteristics can be encountered in
many other fields of history, ethics, psycology and indeed in social sciences.
It is well known today ideological difference influence and distiquish legal systems. This
can be seen in the distinction common law and civil law. This civil law is derived from
Europe and is distilled through the medium of the medieval, the roman and canone law on
the other hand links between common wealth and the tradition common law whilst the spirit

of the civil law is one of the factors which tends to cross the frontiers of the nation states of
Europe the acceptance of Rome treaty setting up the common market find it easy acceptance
in the European countries because they were already symented in civil legal thinking.
Another example of ideological factors can be seen in the position of Indian society; this
has a deep root in the tradition and religions order based on a caste system.
The tradition system is now over laid by a modern constitution laying down the natural
rights of man including such matters as, freedom of religion, freedom of expression which
were concentrated in the evolution of the 18th century fo Europe and fused in the later
struggle of the western world to achieve an egalitarian democracy.
The conflict of ideology has been over lain with modern constitution has given rise to built
in controversy with the result that courts are faced with matters of choices and policies e.g
the difficult arising from ex-communication, this is a power exercised by the head of a
religious community but here courts have been involved in the complex problem of
deciding what beliefs are essential to religion and how far exceeding the rights of ex-
communication may not infringe the fundamental constitution of freedom of religion so far
courts have leaned in favour of treaty practice such as ritual slaughter as circular acts not
essential to religion and this may lead to courts treaty all beliefs are mere superstitions as
in essential and not deserving the courts protection such guarantee once achieved would
definitely would approach the freedom of religion since it is difficult to exclude such factors
as above it would be idol to place a formula that would conclusive place the exact province
and scope of such study as jurisprudence.
The development on natural science both physical and biological during the 19th century
and for them remarkable prestige and this produced marked effects on the fields of study
which aspired to share with them this prestige by claiming also to be sciences so other
discipline also claim to engaged in the pursuit of the imperial knowledge by similar
producers accepted as the acknowledgement of the physical sciences such methods includes
those propounded by MILL, DARWIN and ZOLA.

MILLS propounded a scientific method based on determinism and CAUSAL LAW with
DARWISM in Biology the belief grew that similar laws could be shown to govern man in
society as well as the physical world of science.
These powerful sentiments spread even to the fields of Art and Literature in impressionist
art and naturalist Zola tried to create a new type of fiction ruled by scientific laws based on
scientific investigations and written by scientific methods ‘’STUDY MEN AS SIMPLE
ELEMNETS AND NOT THEIR REACTION’’. In his study he studied men as if they were
spacemen in a laborotary with this stimulus social study whether they established such
history and ethics or more recently inaugurated as anthropology and sociology clamoured
to establish their scientic clandentials.
Natural sciences have been since considered by way of induction by way observation of
empirical facts and by the propounding hypothesis, to explain those facts and the
subsequent verification of those or by observation further facts such process were believed
to result in scientific of complete laws of generality and uniformity, this served the time of
industrial revolution with significant success but modern theorists today view the induction
method as a convenient, tentative method which are liable to possible future refutation.
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?’
Analytic Jurisprudence
Analytic or ‘clarificatory’ jurisprudence is using a neutral point of view and descriptive

language when referring to the aspects of legal systems. This was a philosophical
development that rejected natural law’s fusing of what is and what it ought to be3. David
hume famously argued in A Treaty of Human Nature stated that people invariably slip
3
H.L.A HART Positivism & the separation of law and morals(1958)

between describing that the world is a certain way to saying therefore we ought to conclude
on a particular course of action. But as a matter of pure logic, one cannot

conclude that we ought to do something merely because something is the case. The analytic
jurisprudence asks questions distinctive to legal philosophy like’ What is law?’ ‘What are
the criteria for legal validity?’ or ‘What is the relationship between law and morality?’ and
other such questions that legal philosophers may engage.
Normative Jurisprudence
Normative jurisprudence asks what law ought to be. It is the same as political philosophy,
and includes questions of whether one ought to obey the law, on what grounds lawbreakers
might properly be punished, the proper uses and limits of regulation, how judges ought to
decides cases.
In addition to the question,’’What is law?’’, legal philosophy is also concerned with

normative, or ‘’evaluative’’ theories of law. What is the goal or purpose of law? What
moral or political theories provide a foundation for the law? What is the proper function of
laws? What sort of acts should be subjected to punishment, and what sorts of punishment
should be permitted? What is justice? What rights do we have? Is there a duty to obey the
law? What value has the rule of law?
Virtue Jurisprudence
This virtue jurisprudence is the view that the law should promote the development of
virtuous characters by citizens. Historically, this approach is associated with Aristotle.
Aretaic moral theories such as contemporary virtue ethics emphasize the role of character
in morality4.
The Philosophy of Law
Philosophy of law is branch of philosophy and jurisprudence which studies basic questions
about law and legal systems as ‘’what is law? What is the relationship between law and
morality.
4
Shellens ‘’Aristotle on Natural Law’’

The question ‘’what is law’’ is often understood as a request to provide a definition of the
‘’word law’’. This is a natural mistake, but a mistake nonetheless. The aim of jurisprudence
is to provide an account of the nature of law, rather than a definition of the specific term.
Law is a complex social practice, and a philosophical theory of law.
According to Hart, a jurisprudential theory should reveal both the similarity and
differences between law and morality, on the one hand, and law system of
sanctioning on the other.
In the history of legal philosophy, two major schools of thought have emergence
based on the answer they provide to this question.
1.5. 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.
1.6. NATURAL LAW SCHOOL OF THOUGHT

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

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.
Early Theorists
a) Plato
He argued that there are certain moral rules which can be discovered by natural reason.
One can ascertain principles of natural law by reason and common sense. He said human
law is truly law in so far as it conforms to the principles of natural law. According to him,
the physical manifestation of things in a society are only a representation of what is already
laid down by a superior being, and so humans should not antagonize that set up. He says
that if it is natural for a man to act in a certain way, then he morally ought to act in that
way. The behavior of human beings is already laid down and it is discovered by reason and
common sense.
b) Sophists (Greek Theorists)
These constantly referred to natural law which was absolute and could not be changed.
They also argued that it is a duty of public authorities to recognize this natural law in
defining relations between human beings.
Aristotle was one of the Sophists. He emphasized that the State should enable man to attain
good life for which, by nature, he is destined. His argument was that for the State to help
man to attain this good life, it needs to use the law as an instrument to that end.
Aristotle also defined natural justice as that which was equal, lawful, and fair. He said
equality was not the same in all cases for everyone. He argued that we are only equal so far
as we are compared with another person in the same group or status. He said men are
unequal in both status and virtue; each individual is assigned by this super being to a
particular role and then he can only compare himself to other individuals with a similar
role.
c) Roman Empire Theorists

These were known as Stoich 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.
The Medieval Period
This is the period when the church claimed that it was the final interpreter of the truth. The
leaders of the church at that time tried to integrate the teachings of the Greeks and Romans
with the teachings of the church. The notable philosophers for present purposes were St
Augustine and St Thomas Acquinas.
a) St Augustine
He propounded that man had become so selfish that he was interested in property and had
created institutions such as government in order to serve his selfish interests. Man had lost
direction, he argued. Therefore, in order to change the situation as it obtained, there was
need for man to turn back to God’s commandments.
He argued further that the ministers of the church were the people who had the ability to
know what or how man needed to conduct himself. He said that even legislators, before
they passed any legislation, needed to get the counsel of the men of God. Any law enacted
in disregard of natural law was not law. He argued that law OUGHT to be compatible with
natural law for it to be law.
b) St Thomas Acquinas
He postulated that Christianity was the only basis upon which a rational society would
exist. He made three distinctions of natural law:
i. External law – by which he meant law known only to God but in which
man could participate by exercising his practical reason;
ii. Divine law – he argued that these are directions from God on how men
should conduct themselves. The directions are contained in the Bible. He

said these directions could not be understood by just anyone picking the
Bible and reading it; they are best understood by God’s ministers who had
to interpret them to the people; and
iii. Human law – this, he said, is law made by secular rulers or authorities. He
argued that human law only qualifies to be law if and only if it is in
conformity with (i) and (ii) above.
St. Thomas Aquinas claimed that ‘’Law is nothing else than an ordinance of reason for the
promotion of common good, made by him who has the care of the community, and
promulgated’’. Reference to morality is an essential part of any account of what law is.
Morality is not simply a desirable feature to import into law, but rather an essential part of
law as it really is. No adequate test of the validity of a legal rule. St. Thomas Aquinas is
certainly the influential writer in the natural law tradition. However, his writing are difficult
to penetrate and can prove frustrating for some jurists or scholars. He did identify four
different kinds of law: the external law, the natural law, the divine law, and the human law.
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.

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.
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
A proponent of the natural theorist he believed that man as an individual is autonomous,

sovereign and possessed of the whole of bundle of liberties in a state of nature. He believes
that man is to possess certain rights in his natural state devoid in the intervention or with
support of society. He asserts that the state should only be there to protect the security of
the individual whilst the individual should be left alone to carry on his life with such
minimum interference from the state.
He said the State should only be there to protect the security of the individual. The
individual should be left alone to carry on his life with minimum interference from the
State. He argued that there is a contract between the State and the individual.
The nature of this contract is that the individual gives as consideration to the State the right
to be ruled or governed, and the consideration from the State is to protect such an
individual’s life and property. He said that when there is failure of consideration on either
side, the contract could be terminated; for example when the government’s consideration
fails, the people have the right to terminate this contract by voting into office new leaders.
He argued that in practice it may be thought that the government gives to the people these
rights but in reality these rights are given to the people by virtue of their being born human.

This contract between the individuals and government should, if possible, be reduced in
writing. Locke never mentioned this, but this is the beginning of the constitution. The
constitution has been said, though not by Locke himself, by scholars as being the written
contract that Locke was referring to.
He believes that an individual brings his rights with him into society and society is created
not to destroy the rights but to protect them. He argued that man did not lose all his rights
when he gained civil status society. Some of the rights were surrendered in order to enable
society function but others remained to be protected by natural law. His theory in fact
reinforced the mythical social contract idea so as to protect the ruled from the menis of the
ruler.
He further argued that its shortcomings was that life estate, liberty were in secure as there
was neither established law or impartial judge to remedy this flow of men entered into a
social contract were by they made a PACTUM UNIONIST to form a civil society and by
means of a second compact PACTUM SUBJECTIONIS instituted a government with
political powers to protect their respective rights.
a) 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.
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.

1.7. POSITIVIST SCHOOL OF THOUGHT
Introduction
The positivist school of thought is directly opposed to the natural law school of thought. It
arose at a time when science was making an impact. The new scientific age was no longer
satisfied with the natural law theory. Positivists tried to define law not by its contents but
according to the form or criteria of its formation. There are a number of notable theorists
associated with this school of thought. The philosophers considered here are John Austin,
Kelsen and Jeremy Bentham; Fuller and Hart are also considered but not as philosophers
but as scholars who have written about the positivist school of thought. The positivists’
criticism of traditional or primitive societies is also discussed.
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.
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 each norm depends on another. He says that no matter what proposition of law
you begin with, this is traceable to some other initial norm. He argues that eventually all
individual norms are derived from a basic or initial norm which he calls the grund norm.
The grund norm is the final postulate upon which depends the validity of all norms of any
given legal system. He also calls the grund norm as the initial hypothesis. Kelsen’s
argument is that the grund norm is the basis upon which norms exist and that the grund
norm should not be questioned.
He goes further and talks about a revolution. According to him, a revolution is a situation
where the grund norm of a legal system is overthrown in a way not provided for by law.
He argues that a revolution is a situation where the legal order of a community is replaced

in an illegitimate way. He also argues that a revolution, even if initially illegal, will become
legal if successful.
In the case of The Government of Uganda v. The Commissioner of Prisons, Ex Parte

Matov (1966) EALR 514, Obote became prime minister of Uganda in 1962 and in 1966
declared himself the executive president. The 1962 constitution did not provide for an
executive president. However, Obote wrote his own constitution in 1966 disregarding the
1962 constitution. Effectively, he overthrew the 1962 constitution. Pursuant to the 1966
constitution, he issued emergency regulations under which he declared a state of
emergency. Under those regulations Matov was detained. Matov issued a writ of habeas
corpus. His lawyer argued that the 1966 constitution which Obote had issued was illegal
and invalid because it was issued contrary to the 1962 constitution, and because of that the
regulations issued pursuant to the 1966 constitution were also null and void. It was further
argued that the detention of Matov pursuant to these regulations was illegal.
It was held that indeed Obote had overthrown the constitution in an illegal manner; and that
this was equivalent to coup d’estat. However, the court pointed out, under the new
constitution, Obote successfully established a new legal regime which was in control of the
country and had obedience from a number of the majority of the Ugandans.
Note that it is apparent from this decision that what had happened was that the original
grund norm had been overthrown and a new grund norm put in place; and a grund norm is
never illegal. In effect, the court was saying that the 1966 constitution was legal and the
regulations made pursuant thereto were legal and valid.
Kelsen emphasized that if after a revolution, the government assumed power although
contrary to the legal regime existing at the time, the government is legal and its legal regime
valid if that government is able to establish itself or it is in absolute control or the majority
of the people in that country regulate their conduct or behavior according to the new legal
order. The case of E. K. Sallah v. The Attorney-General may illustrate this argument.
The facts of that case are that in 1966, Kwame Nkrumah was overthrown by the military.
In 1969 the government handed back power to the civilian government, and the military
government also handed the civilian government a constitution. Section 9 of that

constitution provided that “any person who occupies a position created or appointed on the
credence of the military government would have to leave the position six months after the
civilian government came to power unless they had authority or letter from the new
government”. Sallah was an employee in a statutory body. This body was created pursuant
to a Statutory Instrument of 1961. When the military government took over in 1966 the
statutory body continued. In 1967, while the military was in control, the applicant was
appointed to the position of manager. Six months after the new civilian government took
over, Sallah was dismissed from employment on the basis of section 9 of the constitution.
He issued court process, arguing that his appointment or position did not exist on the
credence of the military government because he was in that position before the military
government took over. The Attorney-General on behalf of the State argued that the 1966
military take over had amounted to a revolution; that the constitution which existed in 1966
and all laws created under it, which laws included the law which created the body that
employed Sallah, perished. It was therefore, argued that his continuation to hold the
position in this body was on the credence and discretion of the military and that he should
vacate his position in accordance with section 9 of the constitution.
It was held that the military coup of 1966 was a revolution as a result of which the entire
legal regime which existed prior to it perished. In respect of Sallah, the court held that the
natural meaning of the words in section 9 of the constitution was that only people who had
actually been appointed by the military should lose their jobs; and Sallah was not appointed
by the military and could as such not lose his job.
Kelsen’s theory is not without difficulty in terms of application at times. To illustrate this
difficulty, the case of Madzimbamuto v. Lardner-Burke (1969) 1 AC 645; (1968) 3 All
ER 561 is instructive. This case also illustrates how difficult it is to interpret the law when
judges become political. The facts are that prior to 1965, Southern Rhodesia was under the
control of the British government which provided for the constitution and other laws in the
governance of Southern Rhodesia. The appellant sought an order declaring the detention
of her husband under a state of emergency which was proclaimed after the resolution of
parliament sitting under the 1965 constitution. She contended that the declaration of
independence and the purported introduction of the 1965 constitution were illegal and that

constitution was neither legal nor of any force or effect. In effect, she was saying the
detention of her husband was illegal.
It was held that the present government, having effectively usurped governmental powers
granted to Southern Rhodesia under the 1961 constitution, could now lawfully do anything
which its predecessors could lawfully have done. But until its new constitution is firmly
established and thus becomes the de jure constitution of the territory, its administrative and
legislative acts must conform to the 1961 constitution.
The court held further that the decision to detain the applicant’s spouse was taken in order
to maintain peace and order which decision could have been lawful even under the 1961
constitution and as such, the detention was held to be lawful.
c) Jeremy Bentham
The major reason for formulating his philosophy which he referred to as the utility principle
was to spearhead reform in the English legal system. He was unhappy with the system. The
belief that the English legal system was perfect disturbed him. Such principles as equality
and freedom of contract were, to him, a fiction. He gave an example of an employer-
employee relationship where he said that the employee enters into that contract with very
little choice; he must choose to be employed on the terms and conditions of the employer
or choose to starve. There is no freedom of contract where the majorities are disadvantaged
and enter into contract for survival. In order to correct the situation, he came up with the
principle of utility, otherwise known as the calculus of pleasure and pain.
According to him the purpose of law is to ensure the greatest happiness of the greatest
number. All mankind lives under the empire of pleasure and pain. The index of goodness
or badness is pleasure or pain. Everyone, whether a king or servant is governed by the need
to seek pleasure and avoid pain. He argues that the capacity of any given act to confer
pleasure and avoid pain becomes the measure of its goodness.
Bentham does not accept the traditional tests of goodness or badness based on religion or
morality. Rather the test for goodness or badness should be according to the calculus of
pleasure and pain. Every legal institution or law itself should be tested with reference to

the principle of utility. Lawmakers in the process of enacting legislation should follow this
principle of utility in order to determine whether or not a particular piece of legislation
should be passed. He gave an example of the law against gambling as a law that took into
account this principle of utility because banning gambling ensures the greatest happiness.
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

Some Scholars on the Positivist and Natural Law Schools of Thought
There have been debates amongst scholars on the positivist and natural law schools thought.
One such has been between Professor Hart and Professor Fuller; it has been coined the
Hart-Fuller debate.
a) Professor Hart
He defends the positivists’ stand on law. He starts by asking the question: ‘if we insist that
a certain law is not what it ought to be, should we obey it?’ He goes on to say that if laws
are evil or immoral, are we obliged to obey them? What do you do when the law provides
for what in your opinion is evil? Do you ignore the law and obey morality?
In answering these questions, he approaches them from two perspectives:

i. If we insist on what law ought to be, there is a danger of the laws becoming
uncertain; law and authority may be dissolved into human beings’
conception of what they think the law ought to be;
ii. There is a danger that the existing laws may take over morality as a final
test of conduct.
His defence of the positivist school of thought goes further to say that even the decisions
of the courts which may appear automatic or mechanical are law. He argues that even if
judges do not take into account any moral or ethical issues, the decision rendered by the
court stands as law.
b) Professor Fuller
He started by rephrasing the question of law and morals in terms of order and good order.
He argued that the positivists are mainly concerned with order but that his concern was
good order. Mere order, he says, is not good enough. By good order he meant internal
morality. He criticized Hart for completely ignoring the issue of morality. He insisted that
law must represent the human achievements and as such it cannot be a simple fiat of power
or repetitive pattern discernible in the behavior of State officials.
He said there is more to law than the positivists think. He argued that whereas law may
help to achieve order, good order can only be achieved by good laws. He gave an example
of the Nazi legal regime; he argued that going by the positivist theory of law, the Nazi
regime was a valid legal regime. The question he asked was: ‘did that regime provide good
order?’ In conclusion, he said if we really are concerned about the aspect of inner morality,
we cannot call what the Nazi had a legal system. 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 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.
Summary
a) General

According to the positivists, law is that which is laid down; for example, statute or
precedent (court decision). Positivists do admit that issues of morality or ethics do influence
lawmakers or judges in their duties but it is only the incorporation of these moral or ethical
issues into precedents and statutes which give them the quality of law. Therefore, for
positivists, law is that which IS whereas for the naturalists, law is that which OUGHT TO
BE.
For positivists, law is still law even if, in the opinion of the majority, it is unjust; it is law
as long as it has been given the mark of validity by precedents and statutes.
b) Law and Morality
Positivists insist on the separation between law and morality for two reasons:
i. Certainty – they contend that we should be able to clearly know what the
law is and what is not. They argue that one attribute of the law is for it to
be known in advance what is and what is not law. This is opposed to the
naturalists who insist on what ought to be law;
ii. Public order and peace – they argue that if man did not know in advance
what is prohibited, there would be anarchy in society. The purpose of law,
they argue, is to maintain peace and order, and that purpose would be
defeated if law was confused with such external elements as morality,
ethics and justice.
1.8. THE SOCIOLOGICAL SCHOOL OF THOUGHT

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

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.
What the School of Thought States
The sociological school of thought states that you develop the legal order which fits into a
certain type of society. The law cannot be read outside the social context in which it
operates. The making of the law, the interpretation of the law, and the application of the
law should take into account social factors. Certain societal interests should be recognized
and given legal interest. The law is an instrument for serving the needs of society.
The real source of law is not the statutes or precedents as positivists say but the activities
of the society itself as the law is not immobile but rather dynamic and living.
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.
Specific Theories
a) Ihering (1818 – 1892)
This argument is that the success of any legal process is measured by the degree to which
it achieves a proper balance between competing social and individual interests. There is an
inevitable conflict between social interests of men and each individual’s selfish interests.
Man is in a constant search for good things in society; things such as shelter, food, and
pleasure. According to him, the law should be used to control such desires but that at the
same time the law should strive to provide equal opportunity to everyone.
He argues that it is State’s duty to enact legislation which will balance individual interests
against social interests.
b) Ehrlich (1862 - 1922)
His argument centers on the impact of law in society. He looks at the social basis of law.
He says the centre of gravity of legal development does not lie on the legislative juristic
science, but in the society itself. The law is derived from social facts and the real source of
the law is the activities of society itself. The sociology of law, he argues, must begin with
the living law. By the living law he meant the way people regulate themselves in their
everyday lives.
He criticized positivists for ignoring the activities and beliefs of the people in the society.
He asked the question: ‘how far is the formal law observed?’ He said many disputes that
affect individuals inter se are regulated by the living law and not the book law and court
decisions.
He also argues that the scope of jurisprudence should be enlarged to concern itself with the
study of society.

According to him, the duty of legislative and judicial authorities is to give effect to the
living law.
c) Roscoe Pound
He starts by saying law is an instrument of social engineering. There are certain interests
which a legal system must take into account. He identified three such interests:
i. Individual interests; ii.
Public interests; and
iii. Social interests.
By individual interests he meant those interests which pertain to someone’s personality

such as health, freedom of contract, freedom of belief, and reputation.
By public interests he meant interests of society to be politically organized in order to
maintain the dignity of the society and protection of such society.
By social interests he meant people’s claims to peace and order and safety, security of
acquisition of property and social, economic and cultural progress.
He emphasized that the law should strive to achieve the maximum satisfaction of human
wants or needs; and by human needs he meant the three interests referred to above.
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)

1.9. 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.
Causes or Influence of the Theory
This school of thought draws great inspiration from the American legal system. The United
States of America has a written constitution, which is considered the supreme law of the
land. Under this system, courts are constantly engaged in the system through judicial
review. They go as for as reviewing public policy and actions of public officers.
The realists look at the courts as a principal movement in the making of the law and they
play down the role of the legislature. To the realists what the judge says is the law;
legislation is only a source of law. Statutes only become law when they have passed
through judicial interpretation. One does not know the law until the judge has pronounced
what the law is. It is the judge who is the law giver and not the legislator. Judges have a
large part in creating law. You do not know the law merely by reading what a statute says;
you know the law when the judge says what the law is. It is for the courts to deduce from
the rules of law or the text of the statute or words which form statutes as to what the law
is.
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.

Specific Theories
The notable ones are Justice Holmes and John Chipman; and they are the only ones
considered here.
a) Justice Holmes
He was a judge of the Supreme Court of the United States of America; and one of the
reasons for his theory was his experience as such judge. According to him, statutes are just
a prediction of what the court will decide. The law is based on what the courts may do other
than abstract logical deductions of general rules. He says the law is an immense expanse
of knowledge; it is not a closed intellectual box. When deciding cases, courts always have
to take into account many factors. This is because the law has interconnections with a vast
range of other disciplines.
The life of the law, he argues, has not been logic; it has been experience. The decisions that
courts make are governed by the felt necessities of the times. They are also governed by
the prevailing moral and political theories. These decisions may also be influenced by the
prejudices which judges share with their fellow men. Law is not just a system of reason
and ethics but a principle.
The law also needs to concern itself with the views and opinions of the society at a given
time. It is only the judges who give life to statutes and the law is not static as stated in the
statute but dynamic as stated by the judges.
b) John Chipman
His emphasis was on the creative nature of the judiciary. He argued that judges take the
place of legislation. The statute only becomes law if it is interpreted by the courts. The
principle of some cases such as Donoghue v. Stevenson was not law until the judges made
it law. He says the law of a great nation simply means the opinions of half a dozen old
gentlemen for if these half a dozen old gentlemen form the highest tribunal of the land, no
rule or principle which they refuse to follow is law.

One of the people who motivated Chipman was Marshall, chief justice of the Supreme
Court of the United States of America. The chief justice had shown some creative role by
laying down some of the principal trends that have characterized the United States of
America’s judicial system. Chipman argues that statutes are not law per se but only become
law if the courts interpret them. He was in fact saying that statutes are merely sources of
law; and that the law is that which the judges pronounce.
2.0.1 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.
1.10. THE HISTORICAL SCHOOL OF THOUGHT

General Overview
This school emphasizes the importance of history in understanding the present legal
system. It states that law cannot and should not be read in isolation from history. Law is
not an abstract set of rules imposed on society but an integral part of society. We may fail
to understand law if we do not understand its historical context because each legal regime
is fashioned by the past.
This school of thought has a bias towards a term it calls the ‘test of experience’. By this
term it means a legal rule or doctrine which has survived for a long time and has met several
experiences is the best one until the better one is introduced.

There is an argument that even when the old laws are amended we should not throw them
away as they will help us understand the new laws. Therefore, legislators and judges must
refer even to repealed laws in order to come up with laws which are compatible with the
culture, traditions and customs of a particular society.
Savigny (1779-1861)
His main principle of law is that the law of any people is a reflection of the basic national
or tribal character. It is the spirit of the people expressed in legal form. The law is never
made but found among the people. Laws are not of universal validity but are peculiar to
the society that produces them. Laws should not be made arbitrarily but should reflect the
common conscience of the people.
He argued that it is from the traditions and customs of the people that legal rules evolve.
The law should be identical with the opinions of the people. The role of the legislature and
judiciary should be to discover the long established customs and traditions among the
people in order to give them legal effect. He says the re should be an emotional attachment
with the long established traditions and customs.
His conclusion is that it is wrong to import laws from other societies.
1.11. THE MARXIST THEORY OF LAW

Karl Marx on Law
There are other scholars who read his theory of law after him but it is mainly attributed to
him. The first assertion he makes is that the law is an instrument used to protect and further
the interests of the dominant class. He argues that the mode of production that a society has
will condition the political, legal and social life of that society.
He also argues that it is not the conscience of men that determines their being; rather it is
their being that determines their conscience. In other words it is the type pf material
conditions that you are in that determine your thinking; for example, certain prevailing

economic factors will determine the way the ruling class will think and the type of laws
they will create.
He says where the mode of production is capitalism the kind of law that will exist is that
which will favor the interests of the capitalists. He says laws are just a code of rules
promulgated to meet the needs of the dominant class. Economic power translates itself
through the law into power of command; the law is used to convert wealth into power.
Those who control wealth or the means of production use their wealth to control the law
and the State.
He argues that the executive of the modern State is only a committee for managing common
affairs of the bourgeoisie. The State itself is also a political organization for serving the
interests of the dominant class.
According to him the law is an instrument used for oppression; the law is a shield to existing
inequalities. The law promotes such things as private ownership of property and
exploitation of the ‘have-nots’. The workers who work for the owners of the means of
production are in a subjective position because they have no equal bargaining power. For
this reason there is a continuous class struggle or conflict between the owners of the means
of production and the workers. When this conflict is finally resolved, the State and law
disappear or wither away. By resolving class conflict he means the time when the 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.
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

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?

2. UNIT TWO: FORMAL AND NON-
FORMAL
SOURCES OF LAW
2.1. 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.
2.2. 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.
2.3. SOURCES OF LAW

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

i. Legislation; ii.
Court decisions; and
iii. Customs.
Custom
There are two types of custom – the general and the specific or local customs. A general
custom is one of general application to a wider area and usually more than one society. A
very good example of a general custom is common law.
Specific or local customs are specific to a particular group of people within a society. For
a custom to become law it must have the following attributes:
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.
i. Discuss the concept of repugnancy in relation to customs as

sources of law?
ii. Are the above topics the only sources of law?

3. UNIT THREE: JURAL RELATIONS
3.1. 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.
3.2. OBJECTIVES
By the end of this unit, the student should be able to analyze various jural relations.
3.3. 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 noright, 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.
3.4. THE CONCEPT OF RIGHT

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. In that case the Defendant was the owner of land through which ran a
stream. Out of ill motive the Defendant obstructed the stream thereby injuring the neighbor
(the plaintiff).
It was held that he had aright to do so irrespective of the fact that his action was immoral.
The second view is one advanced by Ihering and Salmond; they argue that a right is founded
on interest. But the question is: ‘what is an interest?’ In addition, the right does not
necessarily coincide with an interest because there are instances where an interest and a
right can vest at the same time and in the same person; for example, a trustee is legal owner
and yet the interest in equity is that of the beneficiary. Another example relates to an
employer and his employees; it is in the interest of the employer that the workers should
not go on strike but he cannot stop them from doing so. Therefore, it is only interests that
are protected at law that give rise to rights.
A further view is that of Vinogradoff who finds rights to be based on the psychological
mental attitude of demanding and claiming. This view, like the ones above, is not without
difficulty. The problem with it is that not all demands are rights. A number of instances can
be put forward to buttress this assertion; a promise to be given money on one’s birthday
does not give the promisee a right to the money even if he demanded it as there is no
consideration. Likewise, a marriage promise does not give the promisee a right. Further
there are some people who have no attitude of demand; these include infants and even
adults may have rights which they are not aware of but which the law recognizes as being
possessed by them. In Cooper v. Phibbs, there was a contract to take a lease of a fishery
and yet unknown to these parties, the fishery belonged to the other party.
The House of Lords set aside the contract on the ground that the fishery belonged to the
other party.

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.
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.
Chapman v. Boyd (1963) 2 Q.B. 502
3.5. THE CONCEPT OF DUTY

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.

Ideas Connected with Duty
There are some ideas connected with duty; these are morality, command, enforceability,
and sanctions.
Duty and Morality
Legal and moral duties are different. Often moral duties have an influence on legal duties;
and they in fact often become legal duties and at that point lose their morality.
The moral duty is to behave properly but the legal duty, if put negatively, is not to behave
improperly. Moral duties reinforce legal duties. Both duties are prescriptive and ‘ought’ in
nature but a legal duty is enforceable in law whereas a moral duty is not. However, this is
not to say that a moral duty is sanctionless; it only means that the sanction of a moral duty
is not in the command.
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’.
Duty and Enforceability
The two have been confused. Enforceability has two meanings in relation to duty, namely:
i. Compelling the observance of a pattern of conduct: or

ii. An indirect method of infliction of a penalty.

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.
Duty and Sanction
A number of authorities have maintained that the existence of duty is predicated on

sanctions prescribed for breach of a duty. Dias has attacked this assertion on the following
grounds:
a) For law abiding people, the importance of duty is not in the sanctions when there is
a breach but its importance is in compliance with it;
b) Sanction is an ambiguous term which may mean three things:
i. That a duty exists when something happens. However, sanction may fail;
for example where a thief steals and is not caught, the sanction would have
failed but that does not mean the thief had not duty not to steal;

ii. The operation of a sanction depends on the observance of duty and the other
way round. Duty is an ‘ought’ prescribing a pattern of conduct but sanction,
though associated with duty, is independent. For instance tribunals do not
go to sanctions to establish duty but go to facts; it is only 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
3.6. JURAL RELATIONS IN DETAIL

The starting point is an explanation of the meaning of the three categories of jural relations.
Jural correlatives entail a situation in which the one’s existence in person A is dependent
on the existence of another in person B. Jural opposites do not relate; they are not dependent
on each other. Jural contradictories entail the presence of one negates the existence of
another in the same person.
Jural Correlatives
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.
Privilege – No-Right Relationship
Whenever privilege exists in one person, there exists correlative to it, no-right in another
person. Thus these two are also jurally correlative. Privilege does not mean the same thing
as right or claim. See Salmond’s view on privilege.
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.
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.
3.7. 4.2.0 JURAL CONTRADICTORIES

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.

Duty – No-Right Relationship
If A has a privilege, then there is no-right in B; and the presence of no-right in B entails the
absence of duty in A. In other words duty and no-right negate each other.
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.
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.
Distinction between Right and Privilege
Right implies duty whereas privilege does not. A right can be distinguished without
affecting the privilege because privilege is discretionary. A non-parishioner attending a
church service has a privilege to enter the church but he has no right not to be prevented
entry. In Cole v. Police Constable 443A (1937) 1 Q.B. 316; (1936) 3 All E.R. 107 the
plaintiff, a non-parishioner, entered the church but was ejected therefrom by the Dean at
the instance of the constable.
It was held that the plaintiff had no cause of action because a privilege to enter did not
entail a right not to be prevented from so doing.
It should be noted thought that had the plaintiff been a parishioner, he would have both the
privilege and the right to enter the church. In a nutshell, privilege begins where duty ends.
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.
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.
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.
Relationship between Power, Privilege and Right
This can be illustrated by the case of a testator as follows:
i. A testator has the privilege to make or not to make a will;
ii. In the making or not making of a will, the rights of a testator against other
people are not to be interfered with; and
iii. A testator has power to affect the beneficiaries’ legal positions for better or
for worse.
In other words a testator has the right, privilege and power in the above example.
Another illustration relates to the right to vote. In Ashby v. White (1703), this right was
held to mean the following things:
i. Power coupled with privilege to exercise it; and ii. The voter
has a claim or right not to be prevented from voting.
Furthermore, in Pryce v. Belcher (1847) 4 C.B. 866 in which the plaintiff was not admitted
to vote because he was a non-resident. It was held that the case revealed four things,
namely:
i. The plaintiff exercises power by tendering the vote; ii.
This imposes a duty on the returning officer to accept the vote;
iii. If the returning officer did not accept the vote, he would be in breach of his
duty; and

iv. The plaintiff’s power did not tally with the right to expect that there would
be a fulfillment of a duty by the returning officer.
iii. Look up Hohfeld’s table of jural relations and analyze the

various relations it brings out.

4. UNIT FOUR: LEGAL PERSONALITY
4.1. 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.
4.2. 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.
4.3. THE NATURE OF LEGAL PERSONALITY

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

Later, Salmond said a legal person is any subject other than a human being to which the
law attributes personality; and that this extension of the concept o legal personality is one
of the greatest feats of legal imagination.
The two formulations above have been said to cause confusion. It has been argued that in
one breath ‘person’ refers to anything recognized by the law as capable of bearing rights
and duties whether human or not, and in the other, human beings are persons with
personality but non-human beings may be legal persons. In order to remove some of the
confusion referred to above and to have a clearer understanding of the nature of legal
personality in the sense which refers to the rational individuality of a human being. There
may be advanced three reasons for the need for this distinction, namely:
i. Human beings do not necessarily possess legal personality. For instance in

early legal systems slaves were treated as mere chattels, and aliens could
not bring an action in courts;
ii. Human beings may possess limited legal personality. Examples include
infants and lunatics; and
iii. Legal personality can be granted to entities other than human beings
although in the performance of human actions, the acts of the legally
recognized representatives of such entities are attributed to the legal
persona of the entities. Such entities include corporations.
It is clear from the foregoing that legal personality is not the same as person in the sense of
the rational individuality of a human being. Legal personality then refers to the particular
device by which the law creates or recognized units to which it ascribes certain powers and
capacities.
It must be emphasized that the concept of the legal person is independent from a human
being; in other words it is erroneous to equate or make it dependent on human being. Just
as ‘one’ is a pure concept in arithmetic and independent of ‘one something’ (such as ‘one
orange’), so is the concept of legal person in law. Therefore, the use of the word

‘personality’ to indicate that an entity is recognized by the law as a legal person and also
to indicate the differences in the capacities of legal persons is perhaps unfortunate. It would
thus appear to be necessary to be careful to distinguish between the occasions when the
words ‘legal personality’ are used to refer to the fact that some entity has been 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.
4.4. NATURAL PERSONS

The question may be asked as to when the legal personality granted to human beings begins
and ends. It has already been seen that human beings by virtue of them being human do not
necessarily possess legal personality. Examples have been given of slaves as human beings
who were not possessed of legal personality; and the case of a monk who enters a monastery
in some legal systems may be added to the class of human beings who have no legal
personality.
Today, the norm is to grant legal personality to all human beings, such personality begins
at birth and ends at death. What is meant by birth?
It is a requirement in most legal systems that birth entails complete extrusion from the
mother’s body. Therefore, as a general rule a child in the womb has no legal personality
and can have no rights. However, one clear exception to this rule is the extension that
English law has made in respect of inheritance; an unborn child is entitled to take a benefit
in the estate of his deceased father if it is born alive. The reasoning behind this exception
to the general rule is that it is reasonable that a child who has lost his father should not be

further penalized by losing any interest which he would have secured had he been alive at
his father’s death.
An assertion has been made above that legal personality ceases at death; it is argued that if
birth is necessary to create rights so death, generally ends rights. As a general rule the dead
have no rights and can suffer no wrongs. However, some causes of action survive the
deceased; the personal representatives can recover on behalf of the deceased’s estate.
Similarly, the estate of the deceased may be liable in actions commenced against the
deceased during his life. It can therefore be argued that death does not in all cases end the
rights of the deceased. In fact the Fatal Accidents Act 1846 gives a remedy to certain
dependants in cases where the breadwinner has been killed; this arguably extends the legal
personality of a human being beyond death.
It is clear that the assertion that legal personality begins at birth and ends at death may be
difficult to reconcile with some of the rules in force in most legal systems. This difficulty
notwithstanding, the assertion holds for most legal systems in large measure.
Status
Another concept which relates to legal personality is status. The word ‘status’ has no
precise connotation but it is very important concept in law. Various scholars have given
this word a number of meanings. Salmon has attributed four meanings to status, namely:
i. Legal condition of any kind, whether personal or proprietary;
ii. Personal legal condition excluding proprietary relations; iii.
Personal capacities and incapacities; and iv. Compulsory as
opposed to conventional legal position.
Austin on the other hand points out that the term cannot be used with exactness. He argues
that however when for ease of exposition it is useful to separate a complex of rights and
duties, of capacities and incapacities which specifically affect a narrow class, it is
convenient to designate that complex by the term status.

Allen describes status as the fact or condition of membership of a group of which the
powers are determined extrinsically by law; and affecting not merely one particular
relationship but being a condition affecting generally though in varying degrees a
member’s claims and powers.
It should be noted that there are many factors that lead to the creation of status. The factors
include sex, marriage, minority, illegitimacy, mental or bodily defects, caste, official
position, profession, criminality, and foreign nationality.
There are a number of points involved in Allen’s description of status. The first is that status
arises from membership of a class and the powers of that class are not determined by
agreement between the parties involved but are determined extrinsically by law. A member
of a class cannot vary the conditions imposed by law.
Secondly, the law does not always impose a particular status on somebody for life.
Therefore, the law will not always impose membership of a group; for example one cannot
be forced into the status of marriage against one’s will. However, there are certain groups,
such as infants, upon which status is imposed.
Thirdly, membership of a status does not always result in restricted power; and status does
not only create incapacities but capacities as well.
Fourthly, not all groups give rise to status; membership of a group must affect one’s legal
relations or one’s power to enter legal relations. No legal status attaches to such natural
attributes as height or color.
Lastly, Maine has argued that status normally arises due to a defect in judgment of the
members of the class in question. It has been argued though that this argument is not
universally true as it is not always that defect in judgment is the reason for persons being
accorded a particular status. An example is given of ambassadors; that these may suffer
from occasional defects of judgment but that this is not the reason why the law places them
in a special status.

Allen distinguishes between status, capacity and rights. He argues that status is a condition;
capacity a power to acquire and exercise rights; and rights being what are acquired by the
exercise of the capacity referred to. In Hohfeld’s terms, it could be said that status is the
condition of being a member of a particular group, which membership affects in general
claims, liabilities, power, and immunities.
Maine has argued that the movement of the progressive societies has hitherto been a
movement from status to contract. This proposition should not be treated as a universal law
of legal history; to treat it as such is dangerous. However, when the difficulty of rising
above the level which birth imposed upon a person is contrasted with the comparative
freedom of social movement in the modern world, there appears to be justification for
Maine’s proposition.
It must be pointed out finally that the term ‘status’ is ambiguous; and its ambiguity is such
that there is no need for dogmatic assumptions, and, even on Allen’s test, it is a question
of degree whether the modification of powers and claims is sufficiently general to justify
an assumption that a status has been created.
4.5. CORPORATE PERSONALITY

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
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
Types of Incorporation
Under English law there are two main types, namely the corporation aggregate and the
corporation sole. A corporation aggregate 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
AdministratorGeneral and the Minister of Finance and National Planning.
4.6. 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.
The Fiction Theory

The theory is traceable to the period of Pope Innocent IV’s reign; it has taken many forms
and has been put to various uses. In its modern form, it can be attributed mainly to Savigny.
Savigny argued that besides natural persons the law knows as subjects of proprietary rights
certain fictitious, artificial or juristic persons. The corporation is one such subject he
identified, arguing that this ideal person must be separated from those natural persons who
are called its members. Before Savigny, Coke had made reference to corporations as
invisible, immortal, and resting only in intendment and consideration of the law;
Blackstone had also described corporations as artificial persons. Marshall, CJ in
Dartmouth College v. Woodward 4 Wheat. 518 at 636 defined a corporation as an
artificial being, invisible, intangible, and existing only in contemplation of law.
Salmond on the other hand argued that the corporation has existence but has no real
personality in the philosophic sense. The law, according to him, imagines that the
corporation is capable of exercising its will and performing acts, and imputes to it the acts
of certain agents.
It should therefore, be noted that according to this theory, a corporation cannot have a
personality of its own; it has no will, no mind, no ability to act. It can only have so much
as the law imputes to it by a fiction (that is to say as though it were a real person). It has
been deduced from the fictional nature of the corporation that as it has only a fictional will
imputed by the law, it can only will lawful things. It follows from this deduction that a
corporation cannot make itself liable for certain kinds of legal wrongs; for example it
cannot commit a crime involving any mental element. Some of the practical effects of this
theory will be discussed later.
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.
The Bracket Theory

This theory rests on the proposition that only human beings can have interests and rights,
and that a corporation is only a legal device which enables very complex jural relations to
be understood more simply. The argument is that when a group of people form a company,
it is cumbersome to always refer to all of them; and as such a bracket is placed around them
to which a name is given. And in order to understand the real position, the bracket must be
removed. One value of this theory is that it emphasizes that the corporate veil may be lifted
when need arises.
Wolff, 54 L.Q.R. (1938) 497
According to Kelsen, there is essentially no difference between the legal personality of a

company and that of an individual; that legal personality is only a technical personification
of a complex of rights and duties. He argues that the law individualizes certain parts of the
legal order and establishes a certain unity I the rights and obligations pertaining to it, but
that this is only a technical means of securing facility of procedure, for all that is real
consists of the rights of human individuals.
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.
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.
Theories of the Nature of Corporate Personality: Some Practical Difficulties
An examination of English writing reveals that there is a diversity of views as to which

theory best explains decided cases relating to the nature of corporate personality. Some
have argued that English law has adopted the fiction theory, others the realist; Holdsworth’s
view is that no theory has been adopted except that the corporation should be treated as far
as possible like a natural man, and that practical considerations, rather than the logic of
theory, should be the guiding force. Clearly, this diversity of views shows the real
difficulties that arise in translating any general theory into practical rules of law. A number
of illustrations relating to some of the practical problems referred to above are given
hereunder.
The starting point is that English law makes a clear-cut distinction between a company and
the individuals who compose it. For example in Re Eutrope (1932) V.L.R. 453, a company
had only two shareholders who were also directors; by the articles the directors’ fees were
to be determined by a meeting of shareholders and the two men (as shareholders) voted to
the directors practically all the profits, the object being to secure a lower rate of income
tax. It was held that the validity of this procedure could not be attacked in liquidation
proceedings, however unreal the distinction between the powers of the directors and the
shareholders might be on the facts of the particular case.
However, the problem becomes more complex in the case of a parent corporation creating
subsidiaries controlled by the parent body. Questions arise as to: whether a parent
corporation which is prohibited by law from transporting goods manufactured by itself can
transport goods manufactured by a subsidiary company which has been set up to evade the
law; or whether a company which has undertaken not to engage in a certain business within
a particular town can legally set up subsidiary to carry on that business. This has given rise
to the question of when the corporate veil of a corporation may be pierced to examine the
reality beneath. It has been argued that the solution to the problem when to pierce the
corporate veil is dictated by practical needs, and the theory to be applied is a realism which

holds, not that corporations are real persons, but that they should be treated as such except
where there are imperative reasons to the contrary.
Smith, Stone & Knight Ltd v. Birmingham Corporation (1939) 4 All E.R. 116
Kahn-Freund, O (1944) 7 Mod. L.R. 54
Gower, L.C.B. (2nd Ed.) Modern Company Law, Ch. X
Justice Cardozo cautioned that care should be taken in examining the problem of the
relation between parent and subsidiary companies. In Berkey v. Third Avenue Railway
244 N.Y. 84 at 94, he pointed out that ‘the whole problem of the relation between parent
and subsidiary corporations is one that is still involved in the mists of metaphor. Metaphors
in law are to be carefully watched, for starting as devices to liberate thought, they often end
by enslaving it’.
Another aspect of the present discourse is that early English cases show a tendency to
regard a corporation as possessing only a fictitious will (even if the fiction theory was not
expressly adopted); and thus the argument that a will which was imputed by law could not
commit an offence, for the fictitious will was imputed only for the pursuit of lawful ends.
However, later developments have shown that corporations have been held liable for
certain crimes.
Welsh, R.S. (1946) 62 L.Q.R. 345
It should be pointed out that imputation of criminal liability to a corporation has brought
about its own difficulties. One such difficulty is as regards what punishment to impose if
the only possible sentence is imprisonment or death. Another difficulty is that there is a
presumption against imputing the mens rea of an agent to the principal; yet the company
can only act through agents. This last difficulty may be circumvented by treating acts of
the primary representatives of the company as the acts of the company itself. Who then, for
purposes of criminal liability, are the primary representatives of a company? Are mere
servants included?
D.P.P. v. Kent & Sussex Contractors Ltd (1944) K.B. 146 approved by the C.C.A. in
R. v. I.C.R. Haulage Ltd (1944) 2 All E.R. 515

Still on the question of criminal liability of a company, Welsh is of the view that a
corporation can be indicted and that whether the criminal act of a n agent can be regarded
as the act of the company itself must depend on the nature of the charge, the relative
position of the officer or agent, and pother relevant facts and circumstances of a particular
case.
A further difficulty for present purposes relates to foreign companies. As regards

recognition of foreign companies, application of the concession theory logically would
mean that a French company has no legal personality in Zambia unless Zambian law grants
it personality. However, common sense and convenience require the recognition of the
personality of foreign companies. In this respect, a corporation has been treated as far as
possible like a natural man, but this has been due to the practical needs of business; it has
not been due to deductions from any particular theory.
The residence of a corporation raises quite some problems as well. For instance, for
purposes of liability for income tax, English law uses a realist test, which requires a
determination of where the head and brains of the company are situated. In the case of
domicile, the approach is to consider the place of registration; and in determining enemy
character, actual control is of the essence.
It will be seen from the above survey that it is not possible to regard any one theory as
affording an easy answer to the question which theory best explains the nature of corporate
personality.
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?

5. UNIT FIVE: POSSESSION UNDER ENGLISH LAW
5.1. INTRODUCTION
This unit deals with another central concept in jurisprudence. Many jurists have attempted
to analyze the concept. The unit is intent on showing the student the difficulties that go
with an attempt to define a term such as possession. The unit also looks at various factors
that are relevant to the concept of possession; an analysis of various limbs to the loss and
finding of chattels is also undertaken. It will be seen that English decisions preclude us
from laying down any conditions, such as physical control or a certain kind of intention, as
absolutely essential for a judicial ruling that a man possesses something.
5.2. 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.
5.3. 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 context of these particular rules. In line with
this position, some ‘possessory’ rules in English law are considered as follows;
i. The plaintiff in an action of trespass to goods must have been in possession at the
time of the interference alleged against the defendant.
ii. The plaintiff in an action for conversion of goods must, at the time of the
conversion, have either been in actual possession of them or been entitled to the
immediate possession of them.
iii. As soon as the vendor of land has let the purchaser into possession under an oral
contract, there is an act of part performance which renders it too late for either
party to repudiate the contract on the ground that there is no memorandum or note
in writing as required by section 40(1) of the Law of Property Act, 1925.
iv. Where an owner of land is entitled to possession, the twelve-year period of

limitation under the Limitation Act, 1939, runs against him from the moment
adverse possession is taken by another.
v. ‘Delivery’ means voluntary transfer of possession from one person to another

(section 62 of the Sale of Goods Act, 1893).
vi. Where a mercantile agent is, with the consent of the owner, in possession of goods,
any sale, pledge or other disposition of the goods, made by him when acting in the
ordinary course of business of a mercantile agent, shall be valid (section 2(1) of
the Factors Act, 1889).
vii. A bailee receives possession of a thing from another upon an understanding with
the other to keep and return to him the specific thing.

viii. The expression ‘owner’ includes any part owner, or a person having possession or
control of or a special property in anything capable of being stolen (section
1(2)(iii) of the Larceny Act, 1916).
ix. A taking, for purposes of larceny, consists in acquisition of possession without the
consent of the previous possessor to part with the possession.
The above possessory rules deal with such different situations that it is not surprising that
English judges have not adopted any consistent approach to the meaning of possession.
They have used ‘possession’ in the various rules of law as a functional and relative 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.
5.4. FACTORS RELEVENT TO POSSESSION

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

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

goods under lock and key may be delivered to another person by delivering the key, partly
as a symbol of possession, and partly as transfer of control.
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).
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.
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.
5.5. CONCLUSIONS ON THE RULES AND FACTORS ABOVE

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

the court in carrying out the purpose of one possessory rule, whereas a similar emphasis on
the same factor would hinder the achievement of the purpose of another rule.
It will be noted from the above discourse that judges seem to have had at the back of their
minds a perfect pattern in which the possessor has complete, exclusive and unchallenged
physical control over the object, full knowledge of its existence, attributes and location,
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.
5.6. 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.
Owner versus Finder
An owner has a right to possession and can enforce it by an action for possession or detinue;
but the owner must first make a demand for it. In Clayton v. Le Roy (1911) 2 K.B. 1031,
it was held that as soon as the owner is ascertained, the finder must return the chattel to
him.
Note that the honest finding is not a trespass as the honest finder will take steps to discover
the true owner of the chattel; his taking of possession is for the purpose of protecting the
chattel on behalf of the owner. This Pollock termed an ‘excusable taking’.
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
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.
The Wide Rule in Favor of the Finder
Some English cases favor the finder as against an occupier. A case in point is Bridges v.
Hawkesworth (1851) 21 L.J. Q.B. 75. In that case the question was who was entitled to
possession of money found by a customer in a shop if the owner was not found; was it the
shopkeeper (occupier) or the customer? Patteson relied on Armory v. Delamirie (a finder
versus stranger case) and held in favor of the customer. This decision has been the subject
of academic controversy with some eminent criticizing it as having been wrongly decided.
Doctor Harris has stated that in his opinion the decision of the Bridges case was thus: in
the absence of a claim by the true owner, the finder of a lost article has a better claim to it
than anyone else, including even the occupier of the premises where it was found. It would
appear that the decision ignores the differences between the finder versus occupier and
finder versus stranger situations; thus a number of qualifications are suggested to this wide
rule in favor of the finder.
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 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

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?

6. UNIT SIX: THE TECHNIQUES OF THE JUDICIAL
PROCESS
6.1. 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.
6.2. 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.
6.3. ‘BINDING’: IMPLICATIONS OF THE WORD

There have been many attempts to explain and understand the doctrine of precedent.
Inevitably the meaning or implications of ‘binding’ is of the essence in this respect. Being
bound clearly implies the existence of some sort of obligation. Many jurists have advanced
various arguments on the implications of the word binding in relation to the doctrine of
precedent. Some writers have argued for instance that the doctrine of precedent, of which
the doctrine of binding precedent is an integral part, is a fiction or device which conceals
legal change and the exercise of judicial discretion.
In relation to the word ‘binding’ one may ask as to whether the superior court is the one
which binds the lower courts or whether the lower courts are the ones who bind themselves
as they decide whether or not the case cited should be followed in any particular case. Sir
Carleton Allen says the lower courts bind themselves as the superior court does not impose

fetters on the lower court; the lower court places the fetters on its won hands – it has to
decide on its own whether or not it is bound.
6.4. STATUS OF RULES OF PRECEDENT

It has been argued that the doctrine of precedent must consist only in a set of propositions
about the judges in various courts as a matter of fact do; and that cases on this doctrine can
only be sensibly be cited as evidence of certain facts of judicial behavior. However, when
cases are cited in legal arguments and in judgments to provide support for arguments, and
justifications for decisions, they are not being used as evidence of historical facts. The
function of these arguments and decisions is not to increase knowledge of the truth, but to
show what ought to be done by judges and to justify what judges have decided to do. In a
nutshell cases are used to indicate standards of conduct, and cases on the doctrine of
precedent are used to indicate standards of conduct for judges.
Further, binding authorities serve only as proofs of the way in which a law-making power
has been exercised in fact; not as proof of the law-making competence as Doctor Williams
seems to suggest.
The doctrine of binding precedent can be said to be that the House of Lords (in the case of
Zambia the Supreme Court) has power to make rulings about the status of its own decisions,
whether they are binding or not; that all its decisions, unless given per incuriam or in
ignorance of a statute, are binding; and that a decision of that court is binding. The doctrine
as stated above has been recognized by the judges, lawyers and, to a limited extent,
members of society.
London Street Tramways Ltd v. London County Council
Davies Jokie Kasote v. The People (1977) Z.R. 75

6.5. DEFINING AND DETERMINING THE RATIO DECIDENDI
OF A CASE
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.
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.
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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CAVENDISH UNIVERSITY ZAMBIA

BACHELOR OF LAW (LLB)

CUZL411 JURISPRUDENCE MODULE

MR V CHANZA ADV.DIP.LAW .ASS.DG.(ICM) PGD.DIP.LAW.LLB ,LLM (CUZ)

CAVENDISH UNIVERSITY Page ii

4.6. THEORIES OF THE NATURE OF CORPORATE PERSONALITY ................. 56

CAVENDISH UNIVERSITY Page

Programme Bachelor of Laws

Title: Jurisprudence I: Historical Introduction To The Philosophy Of

LLB Stage YEAR THREE

Module leader TBA

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1. Carlson Anyangwe (2005), An outline of the study of

Recommended 1. P. Harris (1984) Ann introduction to Law, 2nd Edition.

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 Define law in light of the principal schools of thought; and

1.3. NATURE AND VALUE OF THE SUBJECT

’You will not mistake my meaning or suppose that I depreciate one of

CAVENDISH UNIVERSITY Page 5

1.4. WHAT IS JURISPRUDENCE

looks at how the law exists and functions in society; and

CAVENDISH UNIVERSITY Page 6

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

Analytic or ‘clarificatory’ jurisprudence is using a neutral point of view and descriptive

CAVENDISH UNIVERSITY Page 9

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In addition to the question,’’What is law?’’, legal philosophy is also concerned with

The Philosophy of Law

CAVENDISH UNIVERSITY Page 11

1.5. THEORIES OF JURISPRUDENCE

1.6. NATURAL LAW SCHOOL OF THOUGHT

CAVENDISH UNIVERSITY Page 12

b) Sophists (Greek Theorists)

c) Roman Empire Theorists

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The Medieval Period

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A proponent of the natural theorist he believed that man as an individual is autonomous,

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a) Jean Jacques Rousseau

In a nutshell, the natural law school theorists say the following:

CAVENDISH UNIVERSITY Page 17

i. Law as a command – commands, according to him, are expressions of

ii. Commands emanate from a sovereign – by sovereign he meant people

CAVENDISH UNIVERSITY Page 18

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

Mulundika and 7 Others v. The People (1995 - 1997) Z.R. 20

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

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Nkumbula v. Attorney-General (1972) ZR 111

Nkumbula v. Attorney-General (1979) ZR 267

Kachasu v. Attorney-General (1967) ZR 145

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

CAVENDISH UNIVERSITY Page 23

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