ANALYSIS OF FUNDAMENTAL LEGAL CONCEPTS II: OWNERSHIP, POSSESSION, PERSONALITY AND LIBERTY
CONTENTS
1.0 Introduction
2.0 Objectives
Main Body
The concepts of ownership and possession
The concept of personality
The concept of liberty
4.0 Conclusion
5.0 Summary
6.0 References/Further Readings
1.0 INTRODUCTION
This unit will consider the other legal concepts in jurisprudence. Specifically, we shall be discussing the concepts of ownership and possession on the one hand and the concepts of personality and liberty subsequently.
OBJECTIVES
The aim of this unit is to guide students through how to understand the concept of ownership and its marked difference from that of possession which may or may not flow from ownership. As a social policy, the concepts permeate commercial law and go into areas as varied as criminal law in terms of the consequences of wrong assumptions.
MAIN BODY
- The concepts of ownership and possession;
The existing interplay between ownership and possession is very pivotal in various fields of law such as contract and commercial laws. Until the conception of ownership as a bundle of rights is mastered in a legal system, the regulation of property in that system will be based on the intuitive concept of the immediate physical control of a thing (i.e. possession). When this is the case the protection of property will be limited. This can be seen clearly if the present legal position of the holder of a right of occupancy in land in Nigeria is compared to that of a person who was ‘seised’( of a piece of land in the 13th century in England.
Thus, while it is possible for the person in immediate control of a property to enjoy both possession and ownership, there may be cases where only possession inures in him while ownership is resident in another person.
To aid a better understanding of the concept of possession, a whole lot of theories have been evolved. These theories should be studied. Some of these include Savigny’s theory, Ihering’s theory, Salmond’s theory, Holmes’s theory, Pollock’s theory, among others.
Ownership is well dissected by Dias in his book. This will be of profound assistance to you in understanding the concept of ownership.
Self-Assessment Exercise (SAE) 1
Discuss, if any, the relations existing between possession and ownership.
The concept of personality
The legal use of the word ‘person’ or ‘personality’ has attracted an assortment of theories which is probably second to none in volume. This word has undergone many shifts in meaning. Consult the various texts to ascertain and analyze these meanings. It is used in respect to human beings, corporation sole, corporations aggregate, public corporations, and unincorporated associations.
As earlier stated, there are several theories of legal personality. They include: the ‘purpose’ theory, the theory of the ‘enterprise entity’, the ‘symbolist’ or ‘bracket’ theory, Hohfeld’s theory, Kelsen’s theory, ‘fiction’ theory, ‘concession’ theory, and ‘realist’ and ‘organism’ theory.
Your attention here should be focused on how these theories impact on the legal personality of the various entities considered/referred to above.
Self-Assessment Exercise (SAE) 2
With regards to the various theories of personality, explain how personality is conferred on various entities.
The concept of liberty
The basic task expected of you here is to grapple with distinction between the concepts of liberty and claim. A claim implies a correlative duty, but a liberty does not. This shows that liberty and claim are separate and separable. Also, the abuse of liberty is never the path to freedom or justice. The achievement of justice in relation to liberty, as with power, lies not in equal distribution, but in disallowing certain liberties altogether and in controlling the exercise of those that are allowed. It is thus essential that you are abreast of how to control liberty.
Apart from controlling liberty, there is equally a need to limit it in some deserving instances. The liberty to exercise power should therefore be limited to within legally available circumstances. Liberty must also be restrained. The whole of Chapter 5 of Dias(on Jurisprudence will be helpful here.
Self-Assessment Exercise (SAE) 3
How can liberty be controlled?(
Conclusion
We have so far examined the concepts of ownership and possession, with particular emphasis on the relationship between the two concepts. We also have looked into the concept of legal personality where we have been able to outline where the law will confer legal personality on certain categories of entities. The concept of liberty and the need to control, limit and restrain it have also been discussed.
SUMMARY
In this unit we have learned the following:
- The concepts of ownership and possession
- The concept of personality
- The concept of liberty
REFERENCES
Dias, R.W.M., Jurisprudence, 4th ed. (Butterworth & Co. (Publishers) Ltd, Boston) Chapter 5.
Funso Adaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communication, Lagos, 2004, pp. 191 – 211
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 196 – 211; 227 – 240