Legal Personality as Licence

Abstract

This article extends discussion of the recently introduced licence theory of legal personality to the two remaining categories of legal personality available under Australian law, namely, Natural Legal Personality and Bodies Politic. The licence theory conceives of legal personality as designated legal functions, grouped together for nominated purposes. More particularly, it conceives of legal personality as a licensing system, whereby legal personality is granted by the State subject to various nominated conditions. These conditions reflect the overarching purpose behind the grant of legal personality, and may be organised into three general categories: Capability Conditions; Public Interest Conditions; and Use Conditions. According to the licence theory, in forming an understanding of legal personality it is necessary to consider the following design factors: i) the means by which a particular legal person is activated; ii) the purpose underwriting the grant of legal personality by the State; iii) legal capacities and obligations; and iv) the various different conditions operative in relation to the grant of a particular class of legal personality. In this article, these four factors are applied and considered in relation to both Natural Legal Personality and the Commonwealth of Australia (being the pre-eminent manifestation of the Body Politic).