Geopolitical social changes set alterations into social reality providing for
the creation of appropriate conditions for an individual as to the development
of his personality, the protection of his needs and legal interests. Modern
personality requires from society the opportunities to act and live according to
the principles of justice, equality and solidarity.
However, only declarative
and philosophical approach is not enough here. We need necessary legal
instruments and mechanisms for protection of a man and his life, views and
preferences, rights and freedoms as valuable categories for the state and the
Modern jurisprudence considers humanism as one of the most important principles
of law, since a civilized society is the basis for the development of a person's
rights. The man does not exist as an abstract category within law, but serves as
its subject that owns legal status. That man is the creator of law and the civil
society provides a person not only with protection and defense, but also the
ability to take an active part in public administration that involves
postulating the autonomy and individuality of each human being as a basic
Legal Status Of Unborn PersonThe legal understanding of the concept of ‘person' or ‘personality' revolves
around possession of rights and capacity to discharge legal duties. Hence,
natural persons, that is, human beings are the prime claimants of legal
personality. Legal personality of natural persons begins at birth and
extinguishes with death with the result that pre-birth, post death stages are
devoid of any legal persona.
Understanding absence of personality in the
pre-birth stage poses problems as the unborn being understood as incapable of
exercising any legal rights and not being duty bound towards anybody, gets a raw
deal when it comes to tortious acts committed towards it. There are crimes
committed against them that are not recognised as such and hence make punishment
For law, the problem is complicated by other disciplines like
theology and medicine maintaining the unborn to be ‘living' entity. A natural
person must be a living human being, i.e., must not be a monster and must be
born alive to be ranked as a person in law. The exception to this rule is that
of an infant en ventresa mere (child in womb), who is supposed to be born for
many purposes. A child in its mother's womb can acquire certain rights and
inherit properly, but the rights are contingent on his being born alive. He is
counted as a person for purposes of partition. Such a child can claim damages
for injury sustained while in its mother's womb.
A pregnant woman condemned to
death is respite as of right till the delivery of the child. A child not yet
conceived cannot be deemed to be a person, although provision may be made for
such beings contingently coming into existence by vesting property in trustees
for them. The creation of proprietary rights in favour of unborn persons is
governed by the rule against perpetuity.
That rule provides that you cannot
postpone vesting of an estate beyond a longer period than the lifetime of the
transferee or transferees existing at the date of the transfer and the minority
of the ultimate unborn beneficiary. The contingent rights of unborn persons
become vested on birth or at the end of such period not exceeding that
prescribed by the rule against perpetuity, as may be fixed by the person
granting the rights to unborn persons.
Legal Status Of Dead PersonsDead men are no longer persons in the eye of law. They have laid down their
legal personality with their lives, and are now as destitute of rights as of
liabilities. They have n rights because they have no interests. They do not even
remain the owners of their property until their successors enter upon their
inheritance. However, there are three things, more especially, in respect of
which the anxieties of living men extend beyond the period of their deaths, in
such sort that the law will take notice of them.
These are man's body, his
reputation and his estate. Dead men are not legal persons. They are immune from
duties as no sanction can be enforced against them. They are not the subjects of
rights either. With their death they lay down their legal personality and as
such are destitute of legal rights and duties.
The law, however, interferes with
respect to a dead person in the following ways:
- A corpse is not a property and cannot be disposed of by will. But every
person dying has a right to a decent burial and the criminal law secures it.
- The law protects the reputation of dead persons from libelous attacks.
Under the Indian Penal Code it is defamation to impute anything to a
deceased person if the same would harm the reputation of that person if
living and is intended to be hurtful to the feelings of his family or other
near relations. But here also the law does not protect a dead person from
being libeled but protects the living descendants who would suffer by an
attack upon their deceased ancestor.
- A man has extensive power to regulate by will the disposition and
enjoyment of the property which he leaves, subject of course to the
restriction imposed by law. But here again the testamentary dispositions are
calculated only to protect the interests of living persons.
Legal Status Of Lower AnimalIn the present day context, the animals are deemed incapable of possessing legal
rights & duties. They are merely things, often the objects of legal rights and
duties but they are never subjects of them.
A beast has no legal personality. Anything done to the animals may
be a wrong to its owner or to the society but it is no wrong to the beast. But
the animals have two rights to be protected.
- Cruelty to animals is made a criminal offence.
- A trust for benefit for a particular class of animals as opposed to
one for individual animal is valid and enforceable as a public and
In law, a man is held liable either for doing acts which are mischievous or for
causing actual injury to the plaintiff. Causation, therefore, is an important
concept for determining liability in law. In fact, before deciding the question
of liability the question of causation should be decided first. Thus, if A is to
be held responsible for burning B's house, he must first be shown to have caused
it. Causation, therefore, is an important factor to determine responsibility
whether it is of a criminal or civil nature.
The causation broadly involves two types of occurrences, namely:
- Abnormal factors;
- Human acts
Thus in the above illustration where a house has been burnt down, presence
of inflammable gas, ignition, an electric short circuit, etc. may be abnormal
circumstances causing fire or it may have been caused by some person. Once
either of these factors is found present, it is easy to know the causation and
attribute responsibility. An act may have been caused due to a change of
causation involving several factors. It is the established principle of law that
a man is not held liable for his act if the chain of causation is broken or
interfered with. This is contained in the maxim - novusactusinterveniens
SALMOND explains the maxim through an illustration. He says:
if A stabs B and B
is taken to hospital where, despite the fact that he is shown to be allergic to terramyein, is injected Math a large dose of it, then his treatment and not the
stab would be treated as a cause of B's death because the treatment which was
abnormal, broke the casual connection between the -wound by the accused and the
The leading case on causation is relation to civil liability is in Re Polemis
wherein the defendant's servant carelessly dropped a plank
into the ship's hold; the plank struck a spark which ignited petrol vapour whose
presence in the hold was unsuspected. The defendant's were, however, held liable
for damages caused to the ship. But this decision has been overruled by the
Privy Council in Wagon Mound case and now forcibility of consequences is the
test for determining causation and liability. In certain cases, the law will
presume that a man has intended the natural and probable consequences of his
Thus in Scott v. Shepherd
the defendant shepherd mischievously threw a
lighted cigarette squib into the market place. It fell where Yates sold
ginger-bread. One will is, to prevent injury to himself and Yates, picked it up
and threw it across when it fell in the shop of one Royal who took it and threw
it across when it struck the plaintiffs eye and injured it.
The court held that
the injury to the plaintiff was directly and immediately caused by the
defendant, as will is and royal, the intermediate agents acted involuntarily and
for self protection. The injury was held to be not too remote. It is true that
the defendant did not intend to injure the plaintiff and much less to destroy
his eye, nevertheless, he was held liable for one must answer for the
consequences which common sense would attribute to his wrong doing.Award Winning Article Is Written By: Mr.Mohd Aqib Aslam
Authentication No: SP26211616735-18-920