Jural relations - Jurisprudence, or legal theory, is the theoretical study of law. ... Ancient PDF

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Jurisprudence, or legal theory, is the theoretical study of law. ... Ancient natural law is the idea that there are rational objective limits to the power of legislative rulers. The foundations of law are accessible through reason, and it is from these laws of nature that human laws gain whatever fo...

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UNIT THREE JURAL RELATIONS INTRODUCTION-In this unit is a consideration of jural relations; and the legal relationships existing between people such as rights and duties. The specific subjects covered include rights, duties, privileges, no-right, power, liability, immunity, and disability; also considered are morality, the command theory, enforceability, and sanction in so far as they relate to duty. OBJECTIVES By the end of this unit, the student should be able to analyze various jural relations. GENERAL OVERVIEW Hothfield analysed jural relations and came up with what has come to be known as Hohfeld’s table of jural relations. Hothfield’s table of jural relations lists three categories of jural relations, namely jural correlatives, jural opposites, and jural contradictories. According to Hohfeld: jural correlatives contain right and duty, privilege/liberty and no right, power and liability, and immunity and disability; jural contradictories have right and privilege, duty and no-right, power and immunity, and liability and disability; and jural opposites are found right and no-right, privilege and duty, power and disability, and immunity and liability. This constitutes a bundle of jural relations with implications of legal relations between people. 2.0.0 THE CONCEPT OF RIGHT 2.1.0 Various Views on the Concept of Right There have been advanced various views on what a right is. For present purposes only six views are considered. The first one relates right to the behavioral pattern of life; it is argued that the concept of right is based on the said pattern. The belief is that a right emanates from morality. In other words there is a relationship between morality and a right. However, this view raises some difficulty because it is not certain when morality becomes a right. It is fallacious to say that whatever is moral becomes a right; in fact it is possible to have a right which is immoral. Only that which is recognized in law as such which is a right. The case of Bradford Corporation v. Pickles (1895) A.C. 587 illustrates the fact that a right needs not be moral. 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 to be correlative to duty enforceable at law to uphold that right. However, the problem is that primary duties may not have sanctions. The view of Holland and Gray is only valid if it is taken to mean a demand or claim. In Seymour v. Pickett (1905) 1 K.B., one part of the creditor’s claim was actionable while the other was not. The debtor was aware of this and only paid an amount for the actionable debt without specifying. The creditor credited the debt which was not actionable and brought an action for the actionable debt. It was held that the creditor was entitled to do so. The last view is advanced by Professor Olivercrona who emphasizes title as the origin of right . He argues that as soon as the facts constituting title are established then the person has a right. However, this view does not really answer the question: ‘what is a right?’ It is a short cut to the answer to what a right is. 2.2.0 Situational Analyses of Rights It should be noted that rights involve numerous jural relations; thus, Hohfeld’s scheme is of assistance in analyzing what a right is. Four situations are given hereunder in this analysis: i. If you say that Y has a duty to X, this relationship will be expressed in terms such as: ‘you must not do …’ In this situation what is being said is that there are certain things Y must not do and therefore, that X has a claim or right in relation to Y; in other words Y is under a duty not to do something to X; ii. X’s freedom to do something to Y could be expressed thus: ‘I may do or I may not do…’ This situation entails a liberty or freedom on the part of X. the freedom or liberty is not taken to be a right in the generic sense. Privilege and liberty entail a discretion, and this will be found in a situation where giving is concerned – one is at liberty to give or not to; iii. X’s ability to alter Y’s legal position may be expressed as: ‘I can…’ This situation entails that X has a power. A power is that right which one gets to alter the legal position of another for better or for worse; for instance, a testator making a will has power to alter the legal position of the beneficiary; and iv Y’s inability to alter X’s legal position could be couched in the following terms: ‘you cannot…’ It entails that X has immunity against Y. According to Hohfeld’s scheme, jural relations should only be conceived of between the parties and not those affected by the same. Chapman v. Boyd (1963) 2 Q.B. 502 3.0.0 THE CONCEPT OF DUTY 3.1.0 Duties, Rights, and Legal Obligations Legal obligations arise from rights and duties. Duty in the abstract form is a prescriptive pattern of conduct that is legally recognized. Duty is the recognition whish technical. Where a duty exists, it entails that courts accept that model of conduct. Thus, the existence of a duty depends on whether the kind of conduct, the result of the conduct, and the person are recognized by the law. The question then is: how is one to know that these three elements are or are not recognized by the law? The answer is simply, by knowing the law. Therefore, duty in this instance is always a question of law. It is a question of judicial policy; but it may also be a result of the legislative process. Duty represents the official idea of how people ought to behave. The sphere of recognition of a duty changes with times; it is dynamic. Donoghue v. Stevenson – on the law recognizing the duty of care as extending, in a restricted form, to a manufacturer-consumer relationship. 3.1.1 Ideas Connected with Duty There are some ideas connected with duty; these are morality, command, enforceability, and sanctions. 3.1.2 Duty and Morality Legal and moral duties are different. Often moral duties have an influence on legal duties; and they in fact often become legal duties and at that point lose their morality.

The moral duty is to behave properly but the legal duty, if put negatively, is not to behave improperly. Moral duties reinforce legal duties. Both duties are prescriptive and ‘ought’ in nature but a legal duty is enforceable in law whereas a moral duty is not. However, this is not to say that a moral duty is sanctionless; it only means that the sanction of a moral duty is not in the command. 3.1.3 Duty and the Command Theory The command theory in question is the Austinian one. However, not that, strictly speaking, duty has nothing to do with command per se. It cannot be generalized and said that duty derives from command; for instance who can be said to have commanded the law, or who commands the judges and members of parliament? Commands have been known because of the imperative form they take. Professor Olivercrona has observed that duties are merely expressed in an imperative form and we may as well call them an independent imperative. The notion of command should therefore be discarded. Duties are therefore notional patterns framed in imperative form; for example by use of words such as ‘shall’ and ‘must’. 3.1.4 Duty and Enforceability The two have been confused. Enforceability has two meanings in relation to duty, namely: i. Compelling the observance of a pattern of conduct: or ii. An indirect method of infliction of a penalty. Some have argued that there can be no duty without enforceability. But actual observers note that if you have to observe a directive in imperative form, there are two duties: i. Primary duty; and ii. Secondary duty. The prescription or command that ‘do this’ entails observance of a primary duty. The carrying out of a primary duty is expressed as specific enforcement; and when this is breached, a secondary duty arises and can be enforced to remedy the breach. Sir Carleton Allen says duty cannot be enforced by anything but individual conscience. In this instance the only way is to provide sanctions in the hope that their obedience will prevent breach thereof; even if there is a positive primary duty that ‘do something’ there is no assurance that obedience will be ensured. In other words, Allen is rebutting the presumption that duty can only exist where there are sanctions. There are some primary duties which can be enforced such as by an order for specific performance, or the issue of a writ of habeas corpus. 3.1.5 Duty and Sanction A number of authorities have maintained that the existence of duty is predicated on sanctions prescribed for breach of a duty. Dias has attacked this assertion on the following grounds: a) For law abiding people, the importance of duty is not in the sanctions when there is a breach but its importance is in compliance with it; b) Sanction is an ambiguous term which may mean three things: i. That a duty exists when something happens. However, sanction may fail; for example where a thief steals and is not caught, the sanction would have failed but that does not mean the thief had not duty not to steal; ii. The operation of a sanction depends on the observance of duty and the other way round. Duty is an ‘ought’ prescribing a pattern of conduct but sanction, though associated with duty, is independent. For instance tribunals do not go to sanctions to establish duty but go to facts; it is only

iii. 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; A means to an end, that of ensuring compliance with a duty. How people ought to behave is one thing, what can be done to make them do so is another; and c. Judges and lawyers do speak in terms of duty even where there is no sanction Dickson v. Del-Solr (1930) 1 K.B. 376

4.0.0 JURAL RELATIONS IN DETAIL The starting point is an explanation of the meaning of the three categories of jural relations. Jural correlatives entail a situation in which the one’s existence in person A is dependent on the existence of another in person B. Jural opposites do not relate; they are not dependent on each other. Jural contradictories entail the presence of one negates the existence of another in the same person. 4.1.0 Jural Correlatives 4.1.1 Right – Duty Relationship The concept of right has been explored above, and thus needs not be considered here. Duty is a pattern of behavior prescribed by the law. Those who have a duty must behave according to the prescription by law. It should be noted that sometimes the rights holder may have no redress in that some duties are sanctionless; for example much as diplomats have a duty to take care, breach of such duty cannot be enforced at law since diplomats have an immunity. However, this is more of an exception than a general rule. Note that every right entails a correlative duty; but not every duty entails a correlative right as in the case of sanctionless duties. In other words the existence of a right in A entails a correlative duty in B and, though not always, vice versa. RIGHT – DUTIES: CHRISTINE MULUNDIKA AND 7 OTHERS v THE PEOPLE , in this case the appellant had constitutional right to freedom of assembly meaning a right to assemble freely and associate with others. Thus the state had duty to ensure that these rights are protected and safeguarded. 44 4.1.2 Privilege – No-Right Relationship Whenever privilege exists in one person, there exists correlative to it, no-right in another person. Thus these two are also jurally correlative. Privilege does not mean the same thing as right or claim. See Salmond’s view on privilege. 4.1.3 Power – Liability Relationship Power connotes the ability of a person to alter one’s own legal position or that of the other for better or for worse. Liability entails the legal position of a person that can be altered for better or for worse. Thus power and liability are jurally correlative; the existence of power in one person entails the existence of liability in another person. In other words, where A has power, B has a liability. 4.1.4 Immunity – Disability Relationship This is a relationship between persons where the person with immunity entails disability on the other. The one with a disability has no power o act against the other because that other is immune. Immunity means freedom from a power; and disability in turn means absence of a power. IMMUNITY - DISABILITY Section 7 of THE DIPLOMATIC IMMUNITIES AND PRIVILEGES Act, “a consular officer and a consular employee (other than persons on whom immunities and privileges are conferred by virtue of section three) shall be entitled to immunity from suit and legal process in respect of things done in his official duties.” This means that a consular is entitled to immunity with respect to any legal proceedings for example in suit of a tort. The person against whom the tort is committed is said to be disability from suing the consular CAP 20 of Laws of Zambia

ELIAS KUNDIONA v THE PEOPLE (1993) S.J. 49 (S.C.) : It was held that a serving President, while no doubt a competent witness, could not be coerced by criminal process or sanction if he declined to cooperate because the constitution grants immunity

4.2.0 Jural Contradictories 4.2.1 Right – Privilege Relationship If Y has a right, then there is a duty in X; but the existence of a duty in X means the absence of privilege in X. In this sense right and privilege negate each other. In other words, the presence of right in Y negates the existence of privilege in X and vice versa. 4.2.2 Duty – No-Right Relationship If A has a privilege, then there is no-right in B; and the presence of noright in B entails the absence of duty in A. In other words duty and no-right negate each other. 45 4.2.3 Power – Immunity Relationship and Liability – Disability Relationship These two sets of jural relationships are also representative of jurally contradictory relationships. Thus for example, where A has immunity, he can have no liability; and this implies that B has no power in relation to A. 4.3.0 Jural Opposites Jural opposites mean that the presence of one in a person entails the absence of another in that person. Thus for example, the presence of privilege in a person entails the absence of duty in that person; and where A has a liability there is an absence of immunity in him. Refer to Hohfeld’s table. Right – No-right: The presence of a right in X implies that there is an absence of no right in himself. That is to say X cannot have a right and no-right existing in himself at the same time in regard to a particular matter E.g. If X has a right to assembly has provided for by the constitution, X cannot at the same time have noright in regard to the same Privilege – Duty: The same applies here, the presence of a privilege in X implies the absence of duty in himself E.g. article 29 to 36 of the Vienna Convention which articles are in force in Zambia by virtue of the Diplomatic Immunities and Privileges Act grants privileges upon certain persons these being diplomats and their household. The presence of such privileges implies the absence of duties in themselves. Immunity – Liability: The presence of immunity in X denotes the absence of liability in himself. Thus where X enjoys immunity X cannot be said to be liable for matters of which were that immunity not be there, X would be liable. E.g. immunity enjoyed by the president, members of parliament in parliament as well diplomatic immunity implies the absence of liability in the said persons 4.4.0 Distinction between Right and Privilege Right implies duty whereas privilege does not. A right can be distinguished without affecting the privilege because privilege is discretionary. A non-parishioner attending a church service has a privilege to enter the church but he has no right not to be prevented entry. In Cole v. Police Constable 443A (1937) 1 Q.B. 316; (1936) 3 All E.R. 107 the plaintiff, a nonparishioner, entered the church but was ejected therefrom by the Dean at the instance of the constable. It was held that the plaintiff had no cause of action because a privilege to enter did not entail a right not to be prevented from so doing. It should be noted thought that had the plaintiff been a parishioner, he would have both the privilege and the right to enter the church. In a nutshell, privilege begins where duty ends. 4.5.0 Distinction between Duty and Liability The distinction is more relevant in relation to the relationship between customer and bank. If X deposits or lends a thing to Y, Y has no duty to restore the thing to X until there is a demand from X. it also means that the bank in the interim is under a liability to be placed under a duty. Thus before the duty arises there is only the liability of Y.

In Tidd v. Obdrereal (1893) 3 Ch. 194, it was held that for the time of limitation, you begin counting the time from the date the demand is made. A deposit to a bank amounts to a loan; and once a demand is made, the bank must pay (it is under a duty to pay). Joackimson v. Swiss Banking Corporation (1921) 3 K.B. 110 In Seaval Estate Co. Ltd v. Ford (1949) 2 K.B. 94, a debenture holder appointed a receiver to pay preferential claims first and then the residue to be paid to the company. Judgment creditors wanted to attach a certain amount of money before the receiver had paid the preferential claims. It was held that the judgment creditors could not attach any part of sums of money to the company because the duty had not yet arisen. The duty would only arise when the preferential claims had been paid. In the interim, the receiver is under a liability to pay the preferential claims first. 4.6.0 Distinction between Privilege and Immunity This is best demonstrated by use of the case of a diplomat. A diplomat, like any other person, has a duty and capable of breaching that duty and liable to pay damages but he has an immunity and one has no power to compel him to pay damages. He is immune from the legal process but he has no privilege to breach his duty. In Dickson v. Del-Solr (1930) 1 K.B. 376, it was held that an envoy is under a sanctionless duty but that duty has b...