Legal Personality

Course W100: eTMA 3:

Evaluate the importance of the concept of legal personality in English law, drawing on examples from your study of W100 so far.

The concept of legal personality is ‘a fundamental question in law …’

answering ‘ … to whom does the law apply? Who can sue and … who can be sued?’

Since the introduction to Block 2 of W100 so unequivocally aligns the student to the notion that legal personality is indeed an important part of the foundations of the law, it would be brave to seek to argue against the inference of the question.

Mercifully, since considerations of legal personality directly interfere with the most basic issues of human existence – as will be seen literally life and death issues on occasion – such a contradiction is unnecessary. Further, since it is readily demonstrable that the various ‘statuses’ afforded by legal personality effect (affect) pretty much all aspects of our rights and responsibilities, the task becomes a recital of the considerable weight of material which supports the question’s assertion rather than a polemic.

To make your introduction more effective, remember that it needs to do the following: to explain to the reader how you interpret the question (I think that you did this, although I would query some of that interpretation), identify some of the major issues/debates, explain how your essay is going to tackle the question and provide some sort of guidance as to how your essay will be structured. Why not have a look at the ‘points to note for students’ which I’ve attached to the end of your assignment for some ideas as to how you might approach this

As Harris (in An Introduction to Law, (2002)) explains “the identification of individual or group characteristics in law will normally be followed by the provision of rules stating the conditions under which these categories of people will or will not be protected or made liable through the operation of those rules and the legal rights and duties embodied in them.”

In other words, the law classifies people in order to decide whether they can or cannot do certain things.

Against this background of understanding why the concept of legal personality exists, its importance is perhaps readily appreciated in the context of our everyday lives. Driving, working, voting, marrying and making contracts are examples from an inexhaustible list of behaviours which are controlled according to one’s status. Our age, gender, employment and marital ‘status’ all affect what we can or cannot do. Our residency status determines how much tax we pay and it would be difficult to find someone who doesn’t consider that important.

The law may interfere with or influence our lives from the outset – even before our birth. While legal recognition of the foetus is limited, once born, we have the right to sue for damages while in utero.

Broadly, legal personality limits our ability (‘capacity’) according to the extent of protection perceived necessary (whether for ourselves or others). As we grow older, we acquire rights and responsibilities. Minors may only enter into contracts for ‘necessaries’ but at 10 we acquire criminal responsibility. From 16 we may marry, at 17 drive and at the age of majority we attain full legal status. If we are mentally ill the law may restrict our capacity, largely for our own protection, whereas if we become bankrupt the restriction, for example by disqualification as a company director, is largely for the protection of others.

The legal personality of children is limited for their protection and naturally their parents are responsible for making many of their choices for them. In Northwestern Health Board v HW and CW [2002], the importance of such decisions was illustrated when even though the judges disagreed with the parents’ views, such was the importance of recognising parental rights, they were allowed them to prevent their son having a pinprick as part of an important medical test.

So legal personality is important because it is pervasive but how weighty are the issues? As Harris (ibid) goes on to discuss “The fundamental ...

This is a preview of the whole essay

So legal personality is important because it is pervasive but how weighty are the issues? As Harris (ibid) goes on to discuss “The fundamental factors pertaining to human existences are, of course, life and death. It is crucial for law to contain within it some form of test whereby the living existence of a human being may be definitively ascertained, for the most basic rights we enjoyed may be affected.”

Since the ‘form of test’ is legal personality, the answer is that they couldn’t be more fundamental.

The law has from time to time needed to reconsider when life starts and ends, such reconsiderations often necessitated by advances in medicine. For example, the historic definition of death relative to the heart stopping is now replaced by consideration of whether irreversible ‘brain death’ has occurred. Witness the considerations necessary as to whether it is ‘always in the best interest of the patient to be kept alive’ in Airedale National Health Service Trust v Bland [1993] AC 789 HL which contrasts starkly with the decision not to allow Diane Pretty [2002] 1 AC 800 permission for assisted suicide. The reason for the variance owes much to considerations of legal status ~ Bland could be ‘switched off’ because his legal personality as a living human had ended, whereas Pretty’s life could only be ended by active intervention thus (whether unfairly or not) offending more against the principle of sanctity of life that attaches to the legal personality of a living person than the principle of bodily autonomy (which includes inter alia that if of full mental capacity we can refuse medical treatment).

The importance of the law is such that its protection doesn’t end with our own end. Limited status after death enables the law to ensure that our wishes after death (our wills) are respected and that if during life we have not allowed removal of organs or tissue from our bodies then this will also be prohibited after die.

Categorisation has the unfortunate consequence of causing some to feel discriminated against. This is well illustrated in the evolution of gender equality. In De Souza v Cobden (1891), Cobden was convicted for holding office as an ‘unfit person’ because she was a woman. It was not until 1918 that (some) women got the vote and gender equality is arguably, while improving, an ongoing process.

The impact of gender on legal status has also been affected by medical developments. The advent of transgender surgery has caused those individuals affected to petition for change. Following Goodwin v UK [2002], UK law was compelled to alter to accommodate the European Court of Human Rights finding that Articles 8 and 12 of the European Convention on Human Rights encompass inter alia allowing a transsexual to obtain a new birth certificate.

Legal personality also specifically acts to allow the limitation of responsibilities by way of recognising organisations as distinct entities: corporations aggregate, such as registered companies, comprise more than one ‘natural person’ but are also recognised separately. The Queen is, peculiarly, both a natural person and also a ‘corporation sole’ in her capacity as the Crown. Animals, despite the views of many, still do not have recognised legal personality.

In conclusion, the importance of legal personality goes beyond the extent of its intrusion into our lives, although this in itself an important aspect of it. Legal personality could perhaps be seen as the judge’s dictionary: if a ‘person’ is such-and-such then they are defined as x, they may do y and are prohibited from doing z. And a dictionary is essential in any language.

Further, given that the purpose of these categorisations or ‘statuses’ is to ensure people are treated fairly and consistently, legal personality is nothing less than a prerequisite of equity. As de Montesquieu (in The Spirit of the Laws, 1748) better put it, “in the state of nature ….all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law.”

Bibliography

Open University course W100 Assessment Guide Part 1.

Open University course W100, “Block 2 Legal personality”

(particularly Units 6)

Open University course W100, Reader 1

Open University course W100 DVD (particularly the Pretty case and the Jodie and Mary Case).

Harris, P, “An Introduction to Law” (2002)

De Montesquieu “The Spirit of the Laws” (1748)

Wordcount

1,250

I have attached the OU notes for guidance for this essay for your information. You may find it helpful to look at these together with your essay to see where your essay was effective, and areas which could be improved.

Points to note for students eTMA 03

These Points to Note have been provided by the Course Team. They do not represent a model answer but provide guidance on what a very good answer to this question may have contained.

eTMAs 01 and 02 have sought to develop your skills of identifying information, summarising, writing in own words, writing in sentences and paragraphs, finding information and analysis. eTMA 03 built on these skills and is the first essay question you have been asked to attempt on W100.

Section 12 of Assessment Guide Part 1 provided you with detailed advice and guidance on how to approach a legal essay question, including guidance on the appropriate structure of an essay. Considerable assistance was also provided in the eTMA 03 advice to students.

Your work should have been appropriately structured. A very good answer would have included:

An Introduction

This should have covered the following:

the purpose of the essay is to evaluate the importance of the concept of legal personality
the essay will explain the concept of legal personality
it will consider the issues Parliament and the judiciary have considered
it will explain the relevant legislation and common law

A main body

This should have been structured in clear and logical paragraphs with use of examples. The following areas would have been included:

Legal personality

A discussion of the concept of legal personality, in particular that:

a human being - natural legal person
organisations / institutions - artificial legal persons

The importance of the concept is that it helps to determine to whom the law applies i.e. who can have legal rights and responsibilities.

Natural legal person

There are a number of factors to be considered:

when legal personality can begin

Examples could have included AG Reference (No. 3 of 1994) and the cases of Baby P (an unborn child) (1995) or Estate of K (1996) which have taken a slightly different approach to UK courts and legislation.

when legal personality ends

Examples could have included R v Malcherek and Steel (1981), case of Tony Bland, case of Diane Pretty.

legal personality after death

Artificial legal persons

The idea that corporations have legal personality so that they can be held responsible for their actions and its importance.

Limits on natural legal personality

Having set the scene by exploring the concept of legal personality you then needed to explore how legal personality may be limited.

the position of children - and explore that different legal status is acquired at different legal ages - is there any rationale to this?

the mentally ill

bankrupts

It could also have considered the historical position of women was considered and the legal position of those undergoing a sex-change operation and the development of the law in this area.

The importance of the concept of legal personality / an evaluation

You could have chosen to do this separately or as part of your earlier discussions. This was an important aspect of the question. The concept of legal personality:

determines legal rights and responsibilities
helps establish guidance as to who the law recognises can sue / be sued

In effect it is a fundamental legal concept that underpins the working of the law and legal system.

A Conclusion

Your conclusion should follow logically from your introduction and the main body of your essay. It should not introduce new material. The content of the conclusion will depend on what was included in your main body, however any conclusion should be concise and succinct and explain to the reader what the essay has discussed and the conclusion reached.

I can see that you have mentioned this in the next paragraph, but strictly speaking the quotation should be referenced at this point.

You need to explain what inference you believe the question carries. An important part of the introduction is to explain what you understand the question to be about.

I’d take issue with this to an extent. The question does not make an assertion, but specifically asks you to evaluate – thus weigh up for yourself- the importance of legal personality. Therefore it would be appropriate, if you wished, to consider

Good referencing here, William, although you could make this even shorter: Harris (2002) would be fine here.

This is a useful quotation, but remember that you should you quotes to illustrate your point, rather than letting them make the point. What is important is how you explain the issue.

You show a good understanding of the effects of natural legal personality here – well done. However, I think that you could have summarised even more effectively here. You could make the general point without needing to give so many of the examples on p9! This would have left you more room for exploring other issues in more detail – see later comments.

Yes- you might explain why, and give the example of AG Reference no.3 of 1994

Try to avoid ‘we’ and ‘I’ in an assignment.

You are right, but you need to support this with authority, to prove your case – here the Congenital Defects (Civil Liability) Act. See p21 Block 2

I like the idea you are developing here, that legal capacity is limited in order to provide protection.

Arguably, rights are acquired from the moment of birth,

Specify when this is.

This is an accurate summary of p27, and I think it avoids plagiarism problems, but I also think that you could have summarised even more concisely here – e.g. by not mentioning all the examples given in the original passage. This would have left space for you to consider whether there was any rationale behind the current system.

Here I think you needed to expand, and explain the ways in which the courts will limit legal capacity.

True, but you have made this point in the previous paragraph, so you could summarise here.

Good example here. I like the way that you have focused on the decision made and reasons for it, rather than the facts of the case.

Yes- you are right. It is a fundamental concept.

You are right, but it would be helpful to cite the authority here (R v Malcherek and Steel – see p22 Block 2)

I’m not sure about this, William. I think it is more commonly argued that the doctors could do this because the active intervention was required to keep him alive. See p25 Block 2

Yes, and here you could cite the case of Ms B (see p24 Block 2)

Yes- good. You need a reference here, please.

I agree with the points that you are making here, but I feel that you can be more explicit in linking these to legal personality, and explain how they are important to this concept.

Again, you are right, but I think that it would be helpful to have discussed these two paragraphs in the context of legal personality being restricted, or changing over time as social attitudes change.

Yes- well done. It is important to consider artificial legal personality as part of this essay.

Here you could explain the effects of legal personality on a corporate entity (see pp7-8 Block 2).

I think that the concept of legal personality ‘intruding’ into our lives is intriguing! This implies that it is unwelcome. Another view might be that legal personality is welcome because it gives rights as well as duties (consider the position of slaves, for instance (see p12 Block 2)

True, but arguably it is much more than a judge’s dictionary – it allows us to relate to each other – e.g. as parents and children employer/employee.

I think you need to be careful when you use this word, William, as it has a specific legal meaning. Equality might be a better word here.

Is this material in Block 2? If not, best avoided, as there is not credit for going outside the course.

Be careful about ending with a quotation, William, unless it is one which needs no elaboration or explanation at all. It reads here as if you are making a point which needs to be developed further. Also, make sure that you don’t include new material in your conclusion, as it needs to be limited to drawing together the points that you have made in your essay, and coming to a definite answer to the question.

I think it would be better here to give a reference for Unit 6 – see p16 Assessment Guide part 1 for an example of referencing from the course material.

Since this is in reader 1, you need to reference accordingly. See p16 Assessment Guide part 1 for an example of how to reference a reading from the reader.

Thanks for including this.