The foundational principle of a legal system is that it must recognise the subjects it seeks to govern. This is done by the law recognising distinct legal units or “legal persons”. To be a legal person is to be recognised by the law as a subject which embodies rights, entitlements, liabilities and duties. The law may directly regulate the behaviour of legal persons and their behaviour in relation to each other. Therefore, to be a legal person is to possess certain rights and duties under the law and to be capable of engaging in legally enforceable relationships with other legal persons.

Who or what is a legal person is a function of the legal system. The ability to create or recognise legal persons has always varied depending upon historic circumstances. The power of legal systems to recognise and hence also to deny legal personality has been used over history to wreak fundamental breaches of human rights. Roscoe Pound alludes to this in the following passage in “Jurisprudence”:

“In civilised lands even in the modern world it has happened that all human beings were not legal persons. In Roman law down to the constitution of Antonius Pius the slave was not a person. He enjoyed neither rights of family nor rights of patrimony. He was a thing, and as such like animals, could be the object of rights of property. …

In French colonies, before slavery was there abolished, slaves were put in the class of legal persons by the statute of April 23, 1833 and obtained a somewhat extended juridical capacity by a statute of 1845. In the United States down to the Civil War, the free Negroes in many of the States were free human beings with no legal rights.”[1]

Pound’s observations were extracted by Supreme Court in Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass[2] where a two judge Bench of the Court had to determine whether the Guru Granth Sahib possessed a legal personality. While discussing “who is a legal personJustice A P Misra observed:

“11. …If we trace the history of a “person” in the various countries we find surprisingly it has projected differently at different times. …

13. With the development of society, where an individual’s interaction fell short, … cooperation of a larger circle of individuals was necessitated.

Thus, institutions like corporations and companies were created, to help the society in achieving the desired result. The very constitution of a State, municipal corporation, company etc. are all creations of the law and these “juristic persons” arose out of necessities in the human development. In other words, they were dressed in a cloak to be recognised in law to be a legal unit.”

The concept of legal personality beyond natural persons

Legal systems across the world evolved from periods of darkness where legal personality was denied to natural persons to the present day where in constitutional democracies almost all natural persons are also legal persons in the eyes of the law. Legal systems have also extended the concept of legal personality beyond natural persons. This has taken place through the creation of the “artificial legal person” or “juristic person”, where an object or thing which is not a natural person is nonetheless recognised as a legal person in the law.

Two examples of this paradigm are, where a collection of natural persons is collectively conferred a distinct legal personality (in the case of a cooperative society or corporation) and where legal personality is conferred on an inanimate object (in the case of a ship). The conferral of legal personality on things other than natural persons is a legal development which is so well recognised that it receives little exposition by courts today. The legal development is nonetheless well documented.

Salmond in his work titled “Jurisprudence” notes:

“Conversely there are, in the law, persons who are not men. A joint-stock company or a municipal corporation is a person in legal contemplation. It is true that it is only a fictitious, not a real person; but it is not a fictitious man. It is personality, not human nature that is fictitiously attributed by the law to bodies corporate. So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man.

Persons are the substance of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition. But we may go one step further than this in the analysis. No being is capable of rights, unless also capable of interests which may be affected by the acts of others. For every right involves an underlying interest of this nature.

Similarly no being is capable of duties, unless also capable of acts by which the interests of others may be affected. To attribute rights and duties, therefore, is to attribute interests and acts as their necessary bases. A person, then, may be defined for the purposes of the law, as any being to whom the law attributes a capability of interests and therefore of rights, of acts and therefore of duties.”[3]

Capability to bear interests, rights and duties

A legal person possesses a capability to bear interests, rights and duties. Salmond makes a crucial distinction between legal personality and the physical corpus on which legal personality is conferred:

“The law, in creating persons, always does so by personifying some real thing. Such a person has to this extent a real existence, and it is his personality alone that is fictitious. There is, indeed, no theoretical necessity for this, since the law might, if it so pleased, attribute the quality of personality to a purely imaginary being, and yet attain the ends for which this fictitious extension of personality is devised.

Personification, however, conduces so greatly to simplicity of thought and speech, that its aid is invariably accepted. The thing personified may be termed the corpus of the legal person so created; it is the body into which the law infuses the animus of a fictitious personality. …

Legal persons, being the arbitrary creations of the law, may be as of as many kinds as the law pleases. Those which are actually recognised by our own system, however, all fall within a single class, namely corporations or bodies corporate. A corporation is a group or series of persons which by a legal fiction is regarded and treated as itself a person. If, however, we take account of other systems of our own, we find that the conception of legal personality is not so limited in its application…”

Legal personality is not human nature. Legal personality constitutes recognition by the law of an object or corpus as an embodiment of certain rights and duties. Rights and duties which are ordinarily conferred on natural persons are in select situations, conferred on inanimate objects or collectives, leading to the creation of an artificial legal person. An artificial legal person is a legal person to the extent the law recognises the rights and duties ascribed to them, whether by statute or by judicial interpretation.

Salmond presciently notes that the rights and duties conferred on artificial legal persons ultimately represent the interests and benefits of natural persons. In fact, it is precisely because of the substantial benefits derived by natural persons from such objects or collectives that legislators and courts are called upon to consider conferring legal personality on such objects or collectives.

On what legal personality may be conferred?

At a purely theoretical level, there is no restriction on what legal personality may be conferred. What is of significance is the purpose sought to be achieved by conferring legal personality. To the extent that this purpose is achieved, legal personality may even be conferred on an abstract idea. However, Salmond notes that legal personality is usually conferred on objects which are already the subject of personification or anthropomorphisms in layman‘s language out of “simplicity for thought and speech”.

The question whether legal personality is conferred on a ship, idol, or tree is a matter of what is legally expedient and the object chosen does not determine the character of the legal personality conferred. The character of the legal personality conferred is determined by the purpose sought to be achieved by conferring legal personality. There is thus a distinction between legal personality and the physical corpus which then comes to represent the legal personality. By the act of conferring legal personality, the corpus is animated in law as embodying a distinct legal person possessing certain rights and duties.

By conferring legal personality, legal systems have expanded the definition of a “legal person” beyond natural persons. Juristic persons so created do not possess human nature. But their legal personality consists of the rights and duties ascribed to them by statute or by the courts to achieve the purpose sought to be achieved by the conferral of such personality. It is important to understand the circumstances in which legal personality has been conferred and consequently the rights and duties ascribed to the inanimate objects on which this conferment takes place.

The Corporation

The most widely recognised artificial legal person is the corporation in Company law. However, for the purposes of understanding the circumstances under which courts have conferred legal personality, the example of the corporation is of limited use. The idea of treating a collective of individuals as a single unit for the purposes of identification in law is as old as human civilisation itself. There exists a plethora of examples of such recognition scattered across human history with the advent of guilds, partnerships and early unincorporated businesses.

As Phillip Blumberg notes in his book titled ‘The Multinational Challenge to Corporation Law”-

“When the Crown finally began to charter craft guilds and trading companies – the first business corporations – in the fifteenth century, an understanding of the legal nature of the corporation was already substantially in place. … With this history before them, Sir Edward Code, writing in the beginning of the seventeenth century; … and Blackstone and Kyd, writing in the late eighteenth century, could confidently assert what the corporation was, how it was created, and what legal attributes flowed from its organization. While they had primarily ecclesiastical and municipal corporations in mind, their commentary fully applied to business corporations as well.”

The jurisprudential concept of treating a collective of entrepreneurs as a single unit for the purposes of legal recognition was already well established by the time the first business corporations came into existence and did not warrant examination by the courts. The author further states:

“Until well into the nineteenth century, recognition of a corporation for business purposes, both in England and in the United States, required a specific governmental decision to grant corporate status. In England, this took the form of a character from the Crown or an act of Parliament. In the United States it required a legislative act. …

With the universal triumph of general incorporation statutes more than a century ago, corporations could be formed simply by filing certain forms and paying certain fees and taxes. The state’s role has shrunken dramatically to a general specification of procedures and a ministerial administrative acknowledgement of the incorporators’ compliance with statutory formalities.”

The independent legal personality of a corporation has never been dependent on recognition by courts. The legal personality of the corporation was originally granted by a positive act of the government. In later years, as incorporation became the preferred method of doing business, corporate personality was conferred by general statutes of incorporation which permitted any person to incorporate a company subject to the satisfaction of certain statutory conditions.

These historical developments outline the departure from a positive act of the government as the basis of corporate personality, to the creation of statutory frameworks within which it was conferred. It does not, however, outline the reasons underlining the conferral of legal personality and is of little assistance in the present situation.

The Ship

A more pertinent example for the present purposes is the conferment of legal personality on a ship. The concepts of a maritime lien and of actions in remare established precepts of maritime law. A maritime lien may arise in the case of a wrongdoing or damage caused by a ship which gives the claimant a charge on the “res” of the ship. The charge is crystallised by an “action in rem” under which the ship is directly proceeded against, as a legal person.

In 1881, Sir George Jessel MR explained this in The City of Mecca, where he observed:

“You may in England and in most countries proceed against the ship. The writ may be issued against the owner of such a ship, and the owner may never appear, and you get your judgement against the ship without a single person being named from beginning to end. That is an action in rem, and it is perfectly well understood that the judgement is against the ship.”

D R Thomas in his book titled “Maritime Liens” traces the history of the judicial conferment of legal personality on ships. He speaks of two theories- the “personification theory” and the “procedural theory” in explaining the evolution of the concept:

“The first [theory], commonly coined as the personification theory, traces the historical origin and development of maritime liens to the juristic technique, which has obtained since medieval times, of ascribing personality to a ship. Under this theory a ship is personified and regarded as a distinct juristic entity with a capacity to contract and commit torts. The ship is both the source and limit of liability. …

The second theory, known as the procedural theory, is based on the premise that maritime liens evolved out of the process of arrest of a vessel in order to compel the appearance of the res owner and to obtain a security. … Although the point is not free of uncertainty it is probably the case that a maritime lien is a substantive right whereas a statutory right of action in rem is in essence a procedural remedy. The object behind the availability of a statutory right of action in rem is to enable a claimant to found a jurisdiction and to provide the res as security for the claim.”

There is a direct nexus between the conferral of a limited legal personality and the adjudicative utility achieved by the conferral. Courts treat the physical property of the ship as a legal person against which certain actions may be taken. Conferring legal personality on the ship allows for actions to be taken independent of the availability or presence of the ship‘s owners, who in a great many cases may be in other parts of the world. As a ship may only be in port for a brief period, an action in rem allows the claimant to ensure pre-judgement security. Thus, even absent an express personification, actions against the ship as a legal person ensure the effective adjudication of admiralty disputes.

In this view, the conferral of legal personality on a ship sub-served the purpose of business certainty and expediency. The decree against the ship binds all interested in her, and despite her nomadic nature, satisfies the requirement of ensuring pre-judgment security. Besides the UK and India, the attribution of legal personality to ships has been used extensively across jurisdictions.


[1] Roscoe Pound, Jurisprudence, Part IV, 1959 Edition

[2] (2000) 4 SCC 146

[3] J W Salmond, Jurisprudence, Steven and Haynes (1913)