Jurisprudence II: Rights and Duties, Legal Personality, Property, Ownership and Possession, Liability, Law, Poverty and Development, Global Justice, and Modernism and Post-Modernism
2. Legal personality
A legal person is any entity the law treats as capable of rights and duties. Natural persons are human beings; juristic (artificial) persons include companies, corporations sole, the State, and in Indian law idols and certain religious texts. The theories of corporate personality disagree about what such a person is.
| Theory | Claim | Associated with |
|---|---|---|
| Fiction theory | The corporation is a fiction created by law; only humans are real persons | Savigny, Salmond |
| Concession theory | Personality is a concession granted by the State | Associated with the fiction theory; favoured by strong-State thinkers |
| Realist (organic) theory | A group has a real will and personality of its own, which law recognises rather than creates | Gierke, Maitland |
| Bracket (symbolist) theory | The corporation is a bracket around its members, a shorthand for their rights | Ihering |
| Purpose theory | Property dedicated to a purpose, without a human subject | Brinz |
- Salomon v A Salomon & Co Ltd (1897): a duly incorporated company is a person distinct from its members, even a one-man company.
- Pramatha Nath Mullick v Pradyumna Kumar Mullick (1925, Privy Council): a Hindu idol is a juristic entity capable of holding property, its interests represented by the shebait.
- Shiromani Gurdwara Parbandhak Committee v Som Nath Dass (2000): the Guru Granth Sahib is a juristic person.
- M. Siddiq v Mahant Suresh Das (2019, the Ayodhya case): the deity Bhagwan Shri Ram Lalla Virajman is a juristic person, but the court declined to treat the disputed land itself as one.
- The unborn: a child in the womb is treated as born for many purposes if later born alive, for example under Section 13 of the Transfer of Property Act 1882 (transfer for the benefit of an unborn person) and in succession.
3. Property, ownership, possession and liability
Ownership is the most complete right a person can have over a thing. Austin described it as a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration; Salmond as the relation between a person and a right that is vested in him. Honoré ("Ownership", 1961) listed eleven incidents, among them the rights to possess, use, manage, receive income, the capital, security, transmissibility, absence of term, the duty to prevent harm, liability to execution and residuarity. Possession, by contrast, is a matter of fact that the law protects: Savigny required corpus (physical control) and animus domini (intention to hold as owner), while Ihering argued that possession is simply the outward visibility of ownership, and Salmond spoke of animus possidendi, an intention to exclude others.
| Concept | Key point |
|---|---|
| Adverse possession | Open, continuous and hostile possession of immovable property for 12 years bars the owner's suit (Article 65, Limitation Act 1963); in Ravinder Kaur Grewal v Manjit Kaur (2019) the Supreme Court held the possessor may also sue on that title |
| Corporeal and incorporeal property | Rights over material things versus rights such as easements, patents and copyrights |
| Theories of property | Natural right and labour (Locke), occupancy (Grotius), personality (Hegel), utility (Bentham), and the socialist critique (Marx, Proudhon: "property is theft") |
| Liability | Salmond: the bond of necessity between the wrongdoer and the remedy. It may be civil or criminal, remedial or penal; fault-based, strict (defences allowed) or absolute (none), and vicarious (for another's wrong) |
| Negligence as a mental state | Subjective theory (Salmond: a state of careless indifference) versus objective theory (Pollock: failure to meet the standard of the reasonable person) |
4. Law, poverty and development; global justice
The Constitution treats access to justice as part of the answer to poverty. Article 39A, inserted by the Forty-second Amendment (1976), directs the State to provide free legal aid; the Legal Services Authorities Act 1987 created the National Legal Services Authority, the State and District authorities and statutory Lok Adalats. The courts read the same idea into Article 21: M.H. Hoskot v State of Maharashtra (1978) held free legal aid for an appeal to be part of fair procedure, and Hussainara Khatoon (1979) treated speedy trial and legal aid for undertrials as fundamental. Public interest litigation, which Upendra Baxi called "social action litigation", relaxed standing so that the poor could be heard through others. Olga Tellis v Bombay Municipal Corporation (1985) linked the right to livelihood with the right to life.
The "law and development" movement of the 1960s assumed that exporting Western legal institutions would modernise developing economies; Trubek and Galanter's "Scholars in Self-Estrangement" (1974) recorded its failure. Amartya Sen's Development as Freedom (1999) redefined development as the expansion of substantive freedoms (capabilities), which gives rights a constitutive, not merely instrumental, role.
| Thinker | Position on global justice |
|---|---|
| John Rawls | A Theory of Justice (1971) applies the difference principle within a society; The Law of Peoples (1999) rejects a global difference principle and accepts only a duty of assistance to "burdened societies" |
| Charles Beitz and Thomas Pogge | Cosmopolitans: principles of distributive justice apply globally; Pogge (World Poverty and Human Rights, 2002) argues the global institutional order actively harms the poor |
| Peter Singer | "Famine, Affluence, and Morality" (1972): if we can prevent something very bad without sacrificing anything of comparable moral importance, we ought to do it, whatever the distance |
| Amartya Sen | The Idea of Justice (2009): comparative, realisation-focused justice (nyaya) over ideal institutions (niti) |
| Martha Nussbaum | A list of central human capabilities as a threshold every person, everywhere, is owed |
5. Modernism and post-modernism
Modernist legal thought, from the Enlightenment through the classical schools, assumes that reason can discover or construct a coherent, neutral and universal body of law. Post-modernism rejects that confidence. Jean-François Lyotard defined the post-modern as "incredulity toward metanarratives" (The Postmodern Condition, 1979); Jacques Derrida's deconstruction shows that texts contain the seeds of their own contrary readings; Michel Foucault treats law as one technique of power that produces the knowledge it claims merely to record.
- Critical Legal Studies (from the 1977 Conference on Critical Legal Studies; Duncan Kennedy, Roberto Unger): law is indeterminate and politics by other means.
- Feminist jurisprudence (Catharine MacKinnon, Carol Gilligan's ethic of care): the apparently neutral "reasonable man" encodes a male standpoint.
- Critical Race Theory (Derrick Bell; Kimberlé Crenshaw, who introduced "intersectionality" in 1989): formal equality can entrench racial hierarchy.
- Law and economics (Richard Posner): a modernist counter-current that judges rules by their efficiency, which critical scholars in turn contest.
Key takeaways
- Hohfeld's correlatives: right–duty, privilege–no-right, power–liability, immunity–disability; opposites: right–no-right, privilege–duty, power–disability, immunity–liability.
- Corporate personality theories: fiction (Savigny), concession, realist (Gierke), bracket (Ihering), purpose (Brinz); idols and the Guru Granth Sahib are juristic persons in Indian law.
- Possession needs corpus and animus; adverse possession of immovable property ripens in 12 years under Article 65 of the Limitation Act 1963.
- Article 39A (1976) and the Legal Services Authorities Act 1987 put legal aid at the centre of law and poverty; Hoskot and Hussainara read it into Article 21.
- Rawls limits distributive justice to societies (The Law of Peoples, 1999); Pogge, Beitz and Singer argue for global duties; Lyotard, Derrida, Foucault and Critical Legal Studies challenge modernist neutrality.
Practice questions (10)
Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.
In Hohfeld's scheme, the jural correlative of a "power" is:
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Answer: D — Liability
A power in one person corresponds to a liability in another (the other's legal position can be changed). Disability is the opposite of a power, duty is the correlative of a right, and immunity is the opposite of liability.Which theory of corporate personality holds that a group has a real will of its own, which the law recognises rather than creates?
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Answer: B — Realist theory of Gierke
Gierke's realist or organic theory treats the group person as a real social entity. Savigny's fiction theory says the reverse, Ihering's bracket theory reduces the corporation to its members, and Brinz sees property tied to a purpose.Which case of the Privy Council held that a Hindu idol is a juristic entity capable of holding property?
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Answer: A — Pramatha Nath Mullick v Pradyumna Kumar Mullick (1925)
Pramatha Nath Mullick (1925) recognised the idol as a juristic entity whose interests the shebait protects. Salomon is on company personality, Mohori Bibee on a minor's contract, and Tulk v Moxhay on restrictive covenants.Assertion (A): Savigny held that possession requires both corpus and animus domini. Reason (R): Ihering agreed with Savigny that the intention to hold as owner is the decisive element of possession. Choose the correct option.
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Answer: C — A is true, but R is false
A is true. R is false: Ihering criticised Savigny's emphasis on animus domini and argued that possession is the outward visibility of ownership, so that the intention requirement is largely presumed from control.Under Article 65 of the Limitation Act 1963, the period for a suit for possession of immovable property based on title, which adverse possession defeats, is:
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Answer: B — 12 years
Article 65 sets 12 years from when the defendant's possession becomes adverse to the plaintiff. Thirty years applies to suits by the government under Article 112, and three years is the common period for many money claims.Which of the following pairs are Hohfeldian correlatives? Select all that apply.
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Answer: A — Right and duty; C — Immunity and disability; D — Privilege and no-right
Right–duty, immunity–disability and privilege–no-right are correlatives. Power and disability are opposites (the presence and absence of the same capacity in one person); the correlative of power is liability.Which thinker defined the post-modern condition as "incredulity toward metanarratives"?
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Answer: C — Jean-François Lyotard
The phrase is from Lyotard's The Postmodern Condition (1979). Derrida is associated with deconstruction, Foucault with power and knowledge, and Unger with Critical Legal Studies.Assertion (A): In The Law of Peoples (1999), Rawls rejected a global difference principle. Reason (R): Rawls accepted a duty of assistance owed by well-ordered peoples to burdened societies. Choose the correct option.
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Answer: B — Both A and R are true, but R is not the correct explanation of A
Both are true, but R does not explain A. The duty of assistance is what Rawls offered in place of global redistribution; the reason he rejected a global difference principle lies in his view that peoples, not individuals, are the parties at the international level.Which of the following are part of the Indian legal response to poverty? Select all that apply.
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Answer: A — Relaxed standing in public interest litigation; B — Article 39A on free legal aid; C — The Legal Services Authorities Act 1987 and Lok Adalats
Article 39A, the 1987 Act and relaxed locus standi in PIL are all part of the response. Article 32 is the right to move the Supreme Court for enforcement of fundamental rights; it abolishes no court fees.Honoré's classic essay "Ownership" (1961) lists how many incidents of ownership? Type the number.
Numerical answer — type the value.
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Answer: 11
Honoré listed eleven incidents, from the right to possess and use to the prohibition of harmful use, liability to execution and residuarity. No single incident is necessary; ownership is the fullest combination of them.