Legal Personality

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[b1]? ' 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[b2].

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[b3].

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[b4])) 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[b5]. " 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[b6].

The law may interfere with or influence our lives from the outset – even before our birth. While legal recognition of the foetus is limited[b7], once born, we[b8] have the right to sue for damages while in utero[b9]. Broadly, legal personality limits our ability ('capacity') according to the extent of protection perceived necessary[b10] (whether for ourselves or others). As we grow older, we acquire rights[b11] 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[b12] we attain full legal status. If we are mentally ill the law may restrict our capacity, largely for our own protection[b13], 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[b14] 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[b15]. So legal personality is important because it is pervasive[b16] 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[b17]. 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[b18], 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[b19]).

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[b20]. 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[b21]. 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[b22]. 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[b23], comprise more than one 'natural person' but are also recognised separately[b24].

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[b25] 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[b26].

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[b27]. As de Montesquieu (in The Spirit of the[b28] 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[b29]. "


Open University course W100 Assessment Guide Part 1. Open University course W100, "Block 2 Legal personality" (particularly Units 6[b30])