who owns my body?

8/18/2019 Who owns my body?

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Who Owns My Body

Author(s): J. W. Harris

Source: Oxford Journal of Legal Studies, Vol. 16, No. 1 (Spring, 1996), pp. 55-84Published by: Oxford University Press

Stable URL: http://www.jstor.org/stable/764628

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Who Owns My Bodyt

J. W. HARRIS*

1 Introduction

Remember your body is your own private property.

Your body's nobody's body but your own.'

Some years ago when I was driving down the South Island of New Zealand with

a four-year-old son, we bought a children's audio-cassette to while away the

hours of travel. The cassette combined entertainment with sensible warnings for

the author's child audience--about not crossing roads without looking for traffic,

not playing on your own near deep water, and not allowing adults 'to interfere

with you privately'. She accompanied each piece of advice with a catchy jingle.

In the case of the warning against adults who might sexually abuse her young

addressees, she sang the above-quoted two lines about your body being your

own private property. These two sentences encapsulate widespread conceptions,

and misconceptions, about body-ownership.

Property notions are both deeply entrenched in popular consciousness and

also extremely fluid. As I listened to the jingle, over and over again, my mind

wandered to the many other contexts, literary and philosophical, in which, for

quite disparate purposes, the idea of self-ownership is invoked. I shall investigate

what sense they might have in three very different contexts.

We first need to get a grip on what it means for anything to be anybody's

property and, to that end, I sketch the basic features of a property institution in

Part 2. Without such an anchor, the very idea of property is liable to balloon in

all directions. Property is indeed complex, but not as problematic a conception

as the writings of modern jurists suggest.

I then turn, in Part 3, to body ownership rhetoric. This is a widespread species

of discourse employed to bolster what I shall call the 'bodily-use freedom

principle'. It is harmless, if not taken too literally.

* Fellow of Keble College, Oxford.

t The bulk of the research for this paper was undertaken while I was the holder of a British Academy readership

(1990-2). I wish to express my thanks to the Academy for this support. Earlier versions of the paper in lecture

form were delivered as the Richardson Lecture at Keble College Oxford in November 1993 and at the University

of Hong Kong in March 1994. I have benefited from comments made in discussions on those occasions.

1 Rochelle Brader, Rochelle's Place (Kiwi Pacific Records Ltd, 1986).

? Oxford University Press 1996 Oxford Journal of Legal Studies Vol 16, No 1



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56 Oxford Journal of Legal Studies VOL 16

In Part 4 I shall summarize the mix of justice reasons in terms of which

property institutions have been lauded or condemned, as a precursor to the

discussion of the diverse connections which philosophers have sought to draw

between self-ownership and the fruits of labour. Self-ownership assertions have

a long pedigree in the history of western political philosophy. The liberal and

Marxist versions will be distinguished. I shall argue that this tradition is entirely

spurious and its effects baleful.

In Part 5, I turn to the equally inapposite citations of self-ownership in that

novel context where decisions have to be made about property in commercially

important separated bodily parts. I consider other property-specific justice reasons

which bear on this question, especially in the light of recent litigation in California.

2 What is a Property Institution?

Property is a legal and social institution governing the use of most things and

the allocation of some items of social wealth. 'Social wealth' comprises all those

things and services as to which there is a greater potential total demand than

there is a supply.

As an institution, property is a complex organizing idea. Through social

learning and interaction, it is made available to the individual as. a point of

reference intervening between the brute facts of his situation, on the one hand,

and his claims, desires, projects and plans, on the other hand. Its complexity is

twofold. It resides partly in the fact that the institution comprises many elements,

from relatively determinate prescriptive or permissive rules to open-ended prin-

ciples of exclusive use and allocation. Its complexity resides also in the fact that

the package of elements it contains varies enormously in time and place and is

nowhere static for long.

Despite its complexity, property, as an organizing idea, is very old and is now

worldwide. The oldest written records attest to it. Few primitive peoples, whose

societies have been researched by anthropologists, have turned out to lack any

conception of it.2 In the modern world, any normal person will have heard of it

from childhood up.

In the modern world, the institution of property is everywhere embodied in

law. That is to say, the various organs of government deploy it, officially, as part

of the mechanism for controlling the use of things and as part of the mechanism

for supervising or directing the allocation of wealth. Nowhere is property the

only such mechanism. There are commonly laws controlling abuse of the

atmosphere, but the air, above a certain height, is not parcelled out into thing-

like units subject to the institution of property. A considerable proportion of

social wealth is allocated in specie through the form of public services, such as

education and health care, without benefit of property.

2 See Lawrence C. Becker, 'The Moral Basis of Property Rights', inJ. Rowland Pennock and John W. Chapman

(eds) Pwperty: Nomos xxii (NYUP, 1980) 187, and works there cited at 198 ff.



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SPRING 996 Who Owns My Body? 57

Property is a social institution as well as a legal institution. Members of

societies make assumptions and claims, and defer to the claims of others, against

a background in which the institution of property is taken for granted. Countless

such assumptions and claims are informed by the idea of property without

reference to official agencies of the law. Furthermore, the open-ended nature of

many proprietary principles entails that, even when embodied in law, their

official interpretation and implementation often interacts with current social

understandings of them.

Property has a dual function, since it governs both the use of things and the

allocation of items of social wealth. It is in this duality of function that its

controversiality principally resides. It is one thing to say that a society ought to

afford to an individual the use of some resource. It is another to say that the

individual should be armed with power over others by virtue of a capacity to

dictate the use of the resource. 'Property' encompasses both.

Property is thus ubiquitous and complex, socially important and controversial.

Yet any general notion of property is notoriously elusive. Political philosophers

who have dealt with it are not obviously discussing the same thing and what

lawyers mean by it seems to be something different again.

One tradition of political philosophy sought to explain that relationship between

a person and a thing (conceived of as paradigmatic of property) and to explore

its moral foundations-property as rights to things. Today political philosophers

ask whether unequal distributions of property can be justified-property as

wealth. Does anything unite these senses of property, the one which begins with

the individual and some feature of the physical environment, and the other

which conceives of property as a social cake capable of being sliced up in

different ways? A third tradition explored the connections between property and

independence within civil society. Does that enquiry have in mind property in

things, or holdings of property including money, or both? 'Private' property is

commonly contrasted with 'common', 'state', 'collective', 'group', or 'tribal'

property. Is there anything in the term 'property' which makes all these expressions

branches of a common conceptual tree?3

Further mystifications arise when, in pursuit of a variety of theoretical projects,

'property' is extended beyond the sphere of resource-holdings. As we shall see,

philosophers have for centuries advised us that we have 'property' in our own

persons. Social theorists of our day insist that welfare entitlements and jobs are

in some sense 'property'.4 The literature of modem economics includes references

to 'property' wherein propertization is a function of internalizing externalities

3 See generally Richard Schlatter, Private P1uperty: the History of an Idea (George Allen and Unwin, 1951);

Lawrence C. Becker, Property Rights: Philosophic Foundations (Routledge and Kegan Paul, 1977); Alan Ryan,

Property and Political Theory (Basil Blackwell, 1984); Andrew Reeve, Property (Macmillan, 1985); Jeremy Waldron,

The Right to Private Property (Clarendon Press, 1988); Stephen R. Munzer, A Theory of Property (CUP, 1990);

James Grunebaum, Private Ownership (Routledge, 1991).

See, for example, Charles A. Reich, 'The New Property' (1964) 73 YLJ 733; C. B. Macpherson, Property:

Mainstream and Critical Positions (Basil Blackwell, 1978) chs 1 and 12; 'Capitalism and the Changing Concept of

Property', in E. Kamenka and R. S. Neale (eds) Feudalism, Capitalism and Beyond (Edward Arnold, 1975); Joseph

W. Singer, 'The Reliance Interest in Property' (1988) 40 Stan LR 611.



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into the decisions of economic actors.5 Is there anything, could there be anything,

which constitutes an essence of 'propertiness' underlying all these uses?

The practising lawyer is not concerned with these problems. He consults legal

materials and advises his client about property transactions. If he consults

English textbooks and manuals, he will usually find that they deal with property

piecemeal-real property, personal property, intellectual property and so forth.6

He does not limit his advice to matters contained in textbooks which have

'property' on the title page. He may be concerned with tax planning in order to

preserve as much as possible of his client's 'property' (property as wealth) from

the in-roads of the revenue. Or he may be concerned with aspects of planning

law which restrict the uses his client may make of his 'property' (property as

things). It is not his business to speculate as to whether any uniting idea underlies

the 'property law' in the textbooks and these other contexts in which law has a

bearing on 'property'. He may occasionally come across a statute or a con-

stitutional provision or some case law doctrine which deploys the term 'property'

dispositively-one legal consequence follows if some jural entity constitutes

'property' and another if it does not. Such questions he will settle ad hoc,

depending on the statutory, constitutional or doctrinal context.

For all this elusiveness of the idea of property, all of us (philosophers, lawyers

and ordinary folk) seem to share an intuitive sense of what property is. We get

by in daily life with a range of conventional property talk which has no problems

in 'knowing' who owns a particular book or a car or a house or a ten pound

note. Otherwise we could not borrow or lend or sell, or use things without

consulting other people's preferences. Must we assume that there is a radical

disconnection between this conventional property talk and its background as-

sumptions, on the one hand, and the theoretical agenda of philosophy or the

adhocness of legal practice, on the other?7 Or should we adopt a position of

comfortable scepticism? 'Property' means nothing in particular and those who

seek to justify or condemn it engage in sound and fury signifying nothing."

If we wish to take seriously justificatory and disjustificatory arguments about

property (arising at the abstract level of philosophical enquiry or piecemeal

within political controversy or legal interpretation), we needs must forego the

comforts of scepticism. If we find that common assumptions underlie lay and

legal property talk, we must try to expose a conception of property institution

which is not hide-bound by professional technicalities. I shall not here address

all the far-reaching questions raised in the foregoing paragraphs. (I shall attempt

s See Harold Demsetz, 'Toward a Theory of Property Rights' (1967) 57 Am Econ Rev 347; and the literature

surveyed in Yoram Barzel, Economic Analysis of PRperty Rights (CUP, 1989).

6 For an exception, see F. H. Lawson and Bernard Rudden, The Law of jvperry (2nd ed, Clarendon Press,

1982).

7 Such an assumption appears, for example, in Bruce A. Ackerman, Private Poperty and the Constitution (1977)

ch 2.

8 That is the conclusion of Thomas C. Grey, 'The Disintegration of Property', in Pennock and Chapman (eds)

Property above n 2. Kevin Gray also announces his 'scepticism' about property--'Property in Thin Air' (1991) 50

CGL 252, but in his case it is difficult to understand what it is he supposes he is sceptical about as he offers his

own definition of the essence of property (as power to exclude).



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that in a forthcoming book.) All that is needed for present purposes is a brief

sketch of the essential, and the typical, features to be found in that particular

variety of legal and social institution which is invoked by conventional property

talk-a 'property institution'. It is not as elusive as our discussion to this point

might suggest.

The essentials of a property institution are, in my submission, trespassory

rules and the ownership spectrum.

By 'trespassory rules' I mean any social rules, whether or not embodied in

law, which purport to impose obligations on all members of a society, other than

an individual or group who is taken to have some form of open-ended relationship

to a thing, not to make use of that thing without the consent of that individual

or group. The most hallowed such trespassory rule embodies the command

'thou shalt not steal'. Legal trespassory rules may be supported by criminal

or civil sanctions, or both. In modem legal systems, they protect privileged

relationships to land, chattels, money and various sorts of ideational entities. As

Bentham put it, the paradigm type of a property law is: '"Let no one, Rusticus

excepted", (so we will call the proprietor) "and those whom he allows meddle

with such or such a field. '9

By 'the ownership spectrum' I mean the range of open-ended relationships

presupposed and protected by trespassory rules. All attempts in the history of

theorizing about property to provide a univocal explication of the concept of

ownership, applicable within all societies and to all resources, have failed."' Yet

property talk, lay and legal, deploys ineliminable conceptions of ownership

interests. They find their place within the ownership spectrum. At the lower end

is what may be called 'mere property'. Mere property embraces some open-

ended set of use-privileges over a resource and some open-ended set of powers

of control over uses made by others. At the upper end of the ownership spectrum

stands 'full-blooded ownership'. Full-blooded ownership entails a relationship

between a person and a thing such that she has, prima facie, unlimited privileges

of use and unlimited powers of control and transmission, so far as such use or

exercise of power does not infringe some property-independent prohibition.

The content of ownership interests is a function of cultural assumptions. It

varies with time and place. The same property institution may recognize a variety

of ownership interests over the same resource, as common law doctrines of

estates in land illustrate. Even a short leaseholder '... is able to exercise the

rights of an owner of land, which is in the real sense his land albeit temporarily

and subject to certain restrictions'.'2 Transmissibility is only a necessary feature

of an ownership interest in the case of money.

The items on the ownership spectrum are united in three respects only. First,

they all involve a juridical relation between a person (or group) and a resource.

9 J. Bentham, Of Laws in General (Athlone Press, 1970) 177.

10 See Tony HonorE, Making Law Bind (Clarendon Press, 1987) chs 8 and 10.

" Cf my 'Ownership of Land in English Law', in N. MacCormick and P. Birks, The Legal Mind (Clarendon

Press, 1986).

'2 Street v Mountford [1985] AC 809, 816, Lord Templeman.



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Secondly, the privileges and powers which they comprise are open-ended--that

is, they cannot be concretely listed. Thirdly, they authorize self-seekingness on

the part of the individual or group to whom they belong.

Sophisticated property institutions contain elaborate conditions of title whereby

individuals or groups are vested with ownership interests and thereby slot into

the protection of trespassory rules. It is a controversial question whether there

are any natural conditions of title, that is, facts about the world from which it

follows, in justice, that an individual or group ought to be accorded some

conception of ownership and the protection of trespassory rules.

Ownership interests are not reducible to the rules which protect or presuppose

them. No enumeration of such rules, however exhaustive, could yield their

content. They operate as unreflective organizing ideas in countless social in-

teractions, and have always done so. In the parable of the labourers in the

vineyard in Saint Matthew's gospel, the landowner takes it to be obvious that:

'Is it not lawful for me to do what I will with mine own?'13

Ownership interests also interact with trespassory rules in legal reasoning.

Their implicit normative force is taken to be a principled ground for giving some

open-textured rule one interpretation rather than another-as when a court

enjoined mere dissemination of information about etchings which plaintiffs had

created and wished to keep private;"4 or where the Torts (Interference with

Goods) Act 1977 was construed widely enough to make it wrongful for a

railway authority (which wished to placate striking steel-workers) to retain, even

temporarily, steel belonging to a company, that being conduct which denied to

the plaintiffs 'most of the rights of ownership';"5 or where courts have ruled that

neither the common law doctrine of necessity nor any principle of equity can

be invoked, as a defence to an owner's right to recover land, by homeless people

who squat in empty premises."6

Ownership interests are also presupposed by three categories of rules which,

whilst not essential to the idea of a property institution, are universally to be

found in all modem property institutions. These are 'property-limitation rules',

'expropriation rules' and 'appropriation rules'. They are addressed to holders of

ownership interests as such. They are to be contrasted with 'property-independent

prohibitions'. It is criminal to commit assault or homicide with a weapon, but

it is completely irrelevant whether the accused owned the weapon or not.

Property-limitation rules, like those contained in the law of nuisance, planning

law, environmental protection law, industrial safety law and so forth, dock

privileges and powers prima facie contained within prevailing conceptions of

ownership interests. Expropriation rules, like those contained in the law of civil

execution and bankruptcy, criminal forfeiture, compulsory purchase and taxation,

empower the stripping of ownership interests. Appropriation rules, such as those

13 Chapter 20, v 15.

14 Pince Albert v Strange [1849] 1 Mac and G 25.

'5 Howard E. Perry and Co Ltd v British Railways Board [1980] 2 All ER 579, 583 Sir Robert Megarry VC.

16 Southwark LBC v Williams [1971] Ch 1; Department of the Environment vJ ames [1972] 3 All ER 629; Mcphail

v Persons Unknown [1973] Ch 447.



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contained in the law of succession, family law, social security law and public

housing law, enable ownership interests in money or other resources to be

conferred.

There are other characteristic outworks from the core idea of the twinned

conceptions oftrespassory rules and the ownership spectrum. The most important

are 'quasi-ownership interests', 'non-ownership proprietary interests' and 'cash-

ab le righ ts .

Quasi-ownership interests are vested in agencies discharging public functions,

such as organs of central or local government or charity trustees. They are

protected by trespassory rules in much the same way as ownership interests

proper, but their content falls nowhere along the ownership spectrum since they

lack the third crucial feature of ownership interests, namely, authorized self-

seekingness. The content of any particular quasi-ownership interest is a variable

composed of elements borrowed from ownership interests and elements deriving

from the particular social function which the vesting of the quasi-ownership

interest in a public agency is supposed to serve. It has been held, for example,

that a statutorily created airport authority, even though its statutory functions

required it to grant a public right of access to travellers, had the same power to

exclude picketers as any other 'owner' of land.'7 On the other hand, it has been

held that, whereas a private landowner may ban stag-hunting on his land if he

likes, a local authority 'landowner' may not, since to do so does not come within

the statutory function for which its land is held, viz, the 'benefit, improvement

or development' of the area under its control.'8 Even money may be the subject

of a quasi-ownership interest, as some major banks learned to their cost when

the House of Lords held that interest-swap transactions were ultra vires their

statutory powers. 'Individual trading corporations and others may speculate as

much as they please or consider prudent. But a local authority ... is a public

authority dealing with public monies. ....

Quasi-ownership interests are always modelled, in part, on ownership interests

proper. Hence conceptions of 'private' property are logically prior to those of

'state' or 'public' property. The input of ownership privileges and powers varies

enormously from one quasi-ownership interest to another. One of the leitmotifs

of the last United Kingdom parliamentary election was a verbal dispute as to

whether the Government's programme for transferring hospitals from local public

authorities to public trusts amounted to 'privatization'. Clearly it did not, in the

sense that the ownership interest to be conferred on the trustees would entail

the self-seekingness characteristic of ownership interests proper. Such trustees

cannot give as a complete answer to any criticism, as private trustees and

company directors may: 'What we propose is in the best interest of the equitable

owners (shareholders)'. On the other hand, the programme had the effect of

incorporating into the new quasi-ownership interest many more ownership

1' British Airports Authority v Ashton [1983] 3 All ER 6.

1a R v Somerset CC, ex p Fewings [1995] 3 All ER 20.

19 Hazellv Hammersmith and Fulham LBC [1992] AC 1, 31 Lord Templeman.



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powers, especially those connected with market transactions and the hiring and

firing of staff.

Non-ownership proprietary interests (servitudes, mortgages and so forth) are

protected by special trespassory rules which presuppose transferable ownership

interests, but their content is not open-ended in the way that the content of

ownership interests is. Their classification and contours constitute a favourite

topic for technical juridical doctrine.20

Cashable rights (assignable interests in trust funds, bank accounts, shares and

other choses in action) may or may not be the direct subject of trespassory

protection, but the cash into which they are transmutable always is. For that

reason, they are brought within the purview of property institutions. Expropriation

rules and appropriation rules typically apply to cashable rights as they apply to

ownership interests in money and other resources.

3 Body Ownership Rhetoric

How might assertions about owning bodies be fitted into a property institution?

There would be no conceptual problems so far as other people's bodies are

concerned. In slave-owning societies there were trespassory rules prohibiting

stealing or injuring the slaves of others, and owners had open-ended use-

privileges, control-powers and powers of transmission over slaves similar to those

enjoyed over other valuable chattels (although there might be some property-

limitation rules designed to reflect the fact that these particular chattels were

human beings). But what could it mean, in a society in which slavery is prohibited,

to claim that each individual's body is his or her own private property?

In answering that question, attention should first be drawn to a pervasive

phenomenon of both ordinary and literary discourse, that of property rhetoric.

For better or for worse, property is a familiar and deeply ingrained notion in

the consciousness of everyone. It is regularly invoked, analogically, to confer

heightened force on claims which, in themselves, have nothing to do with any

of the structural elements of a property institution. 'You don't own me ' says

the teenager in rebellion against what she considers to be excessive parental

restraints. 'My life belongs to me ' insists the suffering patient in protest against

the ban on euthanasia.

Body ownership rhetoric may seem particularly apt, for this reason. Just as

there are trespassory rules against meddling with other people's chattels, so

too there are rules banning homicide, assault, rape and false imprisonment.

Furthermore, any society committed to conceptions of universal individual

freedom takes it as axiomatic that one of the most fundamental freedoms is what

we may call the 'bodily-use freedom principle': a person is free to use his body

as he pleases and, at his say-so, to permit or refuse bodily (and especially sexual)

20 Cf my 'Legal Doctrine and Interests in Land', in John Eekelaar and John Bell (eds) Oxford Essays in

Jurisprudence 3rd Series (Clarendon Press, 1987).



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contacts with others. Since there is this open-ended set of use-privileges and

control-powers over one's body, it seems natural enough to speak of 'owning'

one's body. Just as no one should steal your books, but you can do what you

like with them and authorize others to do what they like with them, so too no

one should invade your bodily integrity, but you yourself can do what you like

to your body and permit others to do so.

Rhetorical invocations, in this context, of body ownership are an optional

extra. We do not need to appeal to the analogy with property in resources in

order to make points which follow from the bodily-use freedom principle.

Nevertheless, such invocations may add pithiness and force to what would

otherwise seem laboured and tame. They are not intended to be taken literally,

for, if they were, they would prove too much. The ownership interest recognized

both by law and by societal norms in ordinary chattels lies at the upper end of

the ownership spectrum-full-blooded ownership. If I own a book it follows that

I may scribble in it, use it to prop up the leg of a rickety table, burn it, lend or

sell it to whom I will, or give it away inter vivos or by will. Someone invoking

body ownership, rhetorically, is not committed to claiming the same panoply of

use-privileges, control-powers and transmission powers over each person's body.

To return to the example of the children's cassette with which we began. It is

to be hoped that the addressees are not too wickedly sophisticated. The author

of the cassette warns her audience against sexual molestation by adults. She

invokes the property analogy on the assumption-a correct one- that children

acquire a sense of ownership from a very young age. It is clearly not part of her

message, however, that children may choose to accord sexual favours to adults

if they please, just as they are free to share their toys.

Xemantha, how dare you let Uncle Joe do these things to you

But the lady said 'Your body is your own private property'

In other contexts, body ownership rhetoric might be positively misleading or

even double-edged. Sometimes those who appeal to the bodily-use freedom

principle in support of the contention that there should be no restraints on a

woman's right to abortion seek to reinforce their argument by announcing that

a woman's body is her own property. Those who take this line, however, might

not necessarily wish to commit themselves to the view that women are also

morally free to sell their bodies for any use, however degrading.

The proper limits of the bodily-use freedom principle are controversial,

especially when other contested values are in play. When this is so, body

ownership rhetoric settles nothing. It can be no more than a device for recasting

in vivid form a conclusion already reached without it.

The limits of the principle were, for example, the subject of a three-two

division in the House of Lords in the recent case of R v Brown. 2 The issue

21 [1994] 1 AC 212.



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64 Oxford fournal of Legal Studies VOL 16

was whether legislation which criminalizes unlawful wounding and assaults

occasioning actual bodily harm22 should be applied to masochistic practices

engaged in between consenting adult men. The accused had, for their mutual

sexual gratification and with the willing co-operation of all concerned, indulged

in conduct which included sticking pins through parts of their genitals. The

majority of the House found for the prosecution on the ground that all harms

to the person, going beyond the merely transient and trifling, are, in English

law, the proper subject of legal intervention and doing it for sexual kicks was

not an appropriate exception. The minority (especially Lord Mustill) argued

forcefully that, however bizarre or disgusting the activities might seem to most

people, the bodily-use freedom principle of a liberal society required that the

criminal law should not intrude. The minority said nothing whatever about

persons' bodies being their own private property. Property-invocation would

have proved far too much. You can smash up your own chattels if you have a

mind to do so. The minority took it to be indisputable that people are not at

liberty to consent to serious or permanent maiming of their bodies, let alone to

take part in duels.

Property rhetoric is occasionally invoked by judges as a top-up to appeals to

the bodily-use freedom principle. The House of Lords recently abolished the

marital exemption for rape. Ever since the days of Sir Matthew Hale in the

seventeenth century it had been taken to be an axiom of the common law that

husbands could not be guilty of raping their wives. The House of Lords has

unanimously declared that no such exemption now exists as part of English

common law. In delivering the only speech (with which all the other members

of the House agreed), Lord Keith said: 'marriage is in modern times regarded

as a partnership of equals, and no longer one in which the wife must be the

subservient chattel of the husband'.23

But did Hale and his contemporaries suppose that husbands were empowered

to deal as freely with the bodies of their wives as they were with their chattels?

Clearly not. Even in their day wife murder or mutilation was criminal and--

Thomas Hardy's Mayor of Casterbridge notwithstanding-the common law

made no provision for selling or giving away wives. Hale had another argument.

He maintained that women, upon marriage, must be taken to have given an

irretractable consent to sexual intercourse. Lord Keith was well aware of this.

He expressly deals with it and demolishes it as entirely fictional and out of touch

with modem notions of personal freedom. His 'chattel' aside was merely a bit

of unnecessary, but harmless, rhetoric.

Property notions are so deeply ingrained as to be readily susceptible to

rhetorical or literary use. John Galsworthy wrote a novel which is entitled A

Man of Property. One is to infer, it seems, that the principal character viewed

both his possessions and his wife with an equivalent sense of egocentric self-

assertion--indeed, he commits marital rape and sees no reason why he should

22 Offences Against the Person Act 1861 Ss 20 and 47.

23 RvR [1992] 1 AC 599, 616.



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not. But even Soames Forsyte did not suppose that he was at liberty to engage

in jovial wife-swapping, or to leave his wife by will to the next generation.

The ordinary run of property rhetoric is clearly not intended to be taken

literally-as though some feature of a property institution were actually being

invoked. It might be argued, however, that the case of owning one's own body

is special--that people really do think that their bodies are among the things

they own. It would have to be conceded that the relevant ownership interest was

well down the ownership spectrum, far below the full-blooded ownership which

applies to other chattels. It would need to be a unique kind of 'ownership',

specially tailored for bodies, so that there was no danger of proving too much.

The fact that people deploy possessive pronouns in relation to their bodies is,

in itself, no indication of ownership assumptions. 'My', 'yours', 'his' or 'hers'

may signify a host of relationships which have nothing to do with owning.24 Even

a child will not confuse the sense of 'my' as between: 'It's my ball ' and 'She's

m y teacher .

How then might it be established that people regard their bodies as among

the things they own--albeit that they take 'owning' here to have specially

circumscribed implications? We could only do that, I suggest, by showing that

men and women make certain claims about what they are, or are not, free to

do (or to permit to be done) to their bodies. In other words, the supposed body-

ownership conception is the product of the bodily-use freedom principle and

other relevant values--paternalism, self-esteem, intrinsic human dignity and so

forth. Ownership, in the case of ordinary chattels, is a primitive organizing idea

from which a host of conclusions are derived in daily life. Ownership of one's

body is not.

The bodily-use freedom principle has whatever normative force it has without

benefit of self-ownership notions. Property rhetoric in this context is unnecessary,

usually harmless, but always potentially proves too much.

4 The Fruits of Labour

Body ownership rhetoric presupposes a background in which a property in-

stitution reigns over various material, monetary and ideational resources and

applies the terminology of that institution to the human body. Its point is to

provide dramatic support for the bodily-use freedom principle. The history of

western political philosophy includes a tradition of self-ownership invocations

which have another object and which employ a different strategy. They seek to

provide one kind of justificatory argument for property institutions, or for

particular features of property-institutional design. Beginning with the premise

of self-ownership, they move to the conclusion that every individual has a natural

right to own the fruits of his or her labour.

24 Cf Frank Snare, 'The Concept of Property' [1972] 9 Am Phil Q 200.



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A The Mix of Property-Specific Justice Reasons

Political philosophy has bequeathed a wealth of justificatory and disjustificatory

arguments bearing on property institutions. I shall summarize them here merely

for the purpose of setting self-ownership arguments within their appropriate

normative context, and also because some of them compete, as we shall see,

with those arguments in the context of claims to own separated bodily parts.

The mix of property-specific justice reasons may, very roughly, be divided

into four categories. First, there are instrumental arguments: some outcome is

desirable and it could not be attained without property institutions, or without

property institutions containing particular features. Additions to total social

wealth are a good and their achievement requires, as a necessary incentive, that

ownership interests be conferred on those who create or improve resources.

Efficient allocation of resources is a good. That requires markets, which in turn

requires that each resource is the subject of an ownership interest comprising a

power to transmit. Centres of independence from the State are a good, and to

achieve this we must have private holdings of wealth vested in individuals and

groups.

Secondly, there are distributional arguments which suppose that the totality

of social wealth is a cake which ought to be distributed in a particular way. The

favoured distribution is claimed as a dominating factor over all particular

questions of property-institutional design. At one extreme, social wealth is to be

treated as a windfall to which no one has any particular claim, analogy being

drawn between the relationship of the members of any society to the totality of

assets and that between a group of castaways and the resources of an uninhabited

island or planet."25 Consequently, equality of resources should be the lodestone

guiding all features of institutional design. At the other extreme, whatever

distribution has actually come about as the result of social proprietary conventions

should be respected. To do otherwise would be to disappoint legitimate ex-

pectations.26 There are many other distributional variants.

Thirdly, there are freedom arguments for property. Appeal is made to the

freedoms to control the external world which are inherent to property institutions.

Most famously Hegel propounded the connection, at the level of abstract right,

between the historical evolution of liberal property institutions and the idea of

a freely self-realizing will.27

In opposition to all this, property institutions in general, or particular features

of them, have been condemned on many grounds. They corrupt individuals by

promoting thing-fetishism. They impede human fraternity by allowing for socially

25 See, for example, Ronald Dworkin, 'What is Equality? part 2: Equality of Resources' [1981] 10 Phil and Pub

Aff283; Bruce A. Ackerman, Socialf ustice in the Liberal State (YUP, 1980) chs 2, 6 and 7.

26 See David Hume, A Treatise on Human Nature, L A. Selby Bigg (ed) (Clarendon Press, 1888) book 3 pt 2

ss 2-4; Jeremy Bentham, PWnciples of the Civil Code, in C. K. Ogden (ed) Bentham: The Theory of Legislation (Kegan

Paul, 1931) pt I chs 7-11.

27 G. W. F. Hegel, Elements of The Philosophy of Right, trans H. B. Nisbet (CUP, 1991) 73-103.



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divisive inequality in resource-holdings. They are a mechanism for illegitimate

domination in the family and the work place.

Arguments of the foregoing types take property institutions, or particular kinds

of property institutions, in the round and proclaim their virtues or vices. There

are as well arguments which focus on an individual and his or her interactions

with the environment and with other people. They contend that, given certain

assumptions about the normative significance of human agency, such interactions

entail that the individual ought to be accorded ownership of some resource.

These may be called arguments for natural property rights.

Claims to natural property rights may be based on first occupancy, personhood

or privacy. Others focus on labour, and of the latter there are three important

variants.

The first is the labour-desert argument: people who perform useful work

deserve to be rewarded with property.28 The problem with this argument is that

it cannot succeed at an abstract level since it is always hostage to convention.

Given that a person has worked meritoriously, the conventionally appropriate

acknowledgement or reward may be something other than property, such as

recognition or acclaim.

Another natural-right contention focusing on productive labour may be called

the 'creation-without-wrong' argument. If someone creates a new valuable entity

and wrongs no one in doing so, he ought to be the owner of that entity. This

argument-though not the name I have given it-has a long pedigree. It is one

of the two principal arguments entwined in John Locke's celebrated defence of

private property in the fifth chapter of his Second Treatise of Government. Locke

sought to show how property could arise, justly, in a state of nature in which all

was held in common, without the need for general consent. If a man produced

some new item of value, by gathering produce, or fencing and improving land,

he should be recognized as its owner 'at least where there is enough and as good

left in common for others'."9 John Stuart Mill employs the same argument for

all resources other than land, in his qualified defence of private property in book

two of his Principles of Political Economy, Land was created by no one so that

property in it could be justified, if at all, only by virtue of the incentive-

instrumental argument mentioned above. But the creation-without-wrong ar-

gument supported private ownership of manufactures. 'It is no hardship to

anyone, to be excluded from what others have produced: they were not bound

to produce it for his use, and he loses nothing by not sharing in what otherwise

would not have existed at all.'30

The applicability of the creation-without-wrong argument in the conditions

of modem social production would be controversial precisely because it might

be difficult to say whether or not a creative process had been carried out at no

28 See Munzer, A Theory ofPtroperty above n 3 at 254-91.

29 John Locke, The Second Treatise of Government, J. W. Gough (ed) (Basil Blackwell, 1976) chv at 27. 'Nor

was appropriation of any parcel of land, by improving it, any prejudice to any other since there was still enough

and as good left ...' (ibid v 33).

30 Principles of Political Economy, in J. M. Robson (ed) Collected works of John Stuart Mill (U Tor P) 230.



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one's expense so that no one had been 'wronged'. That problem might not seem

insuperable in the context of some examples of intellectual property. If someone

invents a wonderful new game, using nothing but his inventive imagination and

a few bits of cheap and easily obtainable materials,, he has produced something

new of value and, surely, has exploited no one in doing so. The creation-without-

wrong argument would call for him to be accorded ownership of a perpetual

patent. In fact, the argument is not invoked in this context. Intellectual property

is commonly supported by instrumental-incentive arguments, and patents and

copyrights are granted only for so long a period as is thought sufficient to this

end.

There is in fact a more fundamental objection to the argument. If full-blooded

ownership were the moral consequence of creation-without-wrong of the new

thing, that would mean that trespassory rules were required imposing obligations

not to use the thing without the owner's consent. These obligations would bind

the world in favour of the owner himself and anyone to whom the owner or his

successors in title sold or gave the new thing away. The mere fact that a person

acts non-wrongfully when he creates something does not entail a unilateral power

to impose new trespassory obligations.

B Self-Ownership--the Liberal Version

1. If I am not a slave, nobody else owns my body. Therefore

2. I must own myself. Therefore

3. I must own all my actions, including those which create or improve resources.

Therefore

4. I own the resources, or the improvements, I produce.

The foregoing four steps constitute the essence of the third argument for a

natural right to property based on labour. They appear to escape objections to

the other two. There is no need to appeal to conventions about property being

a fitting reward for meritorious work. I do not assert a power to create new

obligations because there are already obligations not to interfere with my bodily

integrity. Stairting with the premise of self-ownership, ownership of the fruits of

my labour follows automatically. My body is the tree; my actions are the branches;

and the product of my labouring activities is the fruit.

This is the other (and more famous) argument presented by Locke (besides

creation-without-wrong). Locke envisaged a natural state in which all were equal,

there was no enslavement and bans on invasions of bodily integrity were

universalized. What followed, so far as property was concerned? '... every man

has a property in his own person; this nobody has any right to but himself. The

labour of his body and the work of his hands we may say are properly his.

Whatsoever, then, he removes out of the state that nature hath provided and



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left it in, he hath mixed his labour with, and joined to it something that is his

own, and thereby makes it his property'.31

The literature spawned by the above passage is enormous. In particular, the

'mixing labour' metaphor has been subjected to minute analysis.32 I am here

concerned only with the self-ownership premise of the argument and, in particular,

the problematic move between steps 1 and 2.

Robert Nozick is the most celebrated Lockean apologist of our day. He too

criticizes the 'mixing' metaphor.3 Nevertheless, he appeals to the self-ownership

argument for a natural right to property as part of his critique of measures aimed

at redistributing wealth. He claims that redistributive taxation is 'on a par' with

forced labour." On the face of it, that looks like a very odd contention. There

may be many objections to redistributive taxation, but surely it is very different

from lining people up on a chain gang and whipping them to work. How could

the two operations be on a par?

Nozick seeks to demonstrate the similarity by running the four steps in the

self-ownership argument backwards. If the State expropriates any of the fruits

of my labour, it is denying my moral ownership of them (contrary to step 4).

Therefore, it is implicitly denying step 3, that I own all my labouring activities,

and hence also step 2, that I own myself. Now since the only alternative to my

owning myself is that someone else owns me, the redistributive State is implicitly

denying even step 1, that I am not a slave. Thus, redistributive taxation turns

me, at least partially, into the slave of the community and so is on a par with

forced labour. 'Seizing the results of someone's labor is equivalent to seizing

hours from him and directing him to carry on various activities.... This process

whereby they take the decision from you makes them a part-owner of you.'35 All

measures of wealth redistribution represent a 'shift from the classical liberal

notion of self-ownership'.36 The inegalitarian implications of Nozick's argument

have been challenged on many grounds, but usually not by a simple denial of

the self-ownership premise and the move from step 1 to step 2 (or backwards

from 2 to 1) in the liberal version of the self-ownership argument." If I am not

a slave, must I own myself? If anyone denies that I own myself, must he be

implying that I am a slave?

" Second Treatise of Government above n 29 v 27.

32 See, for example, Waldron, The Right to Private Property above n 3 at 184-8.

33 Robert Nozick, Anarchy, State and Utopia (Basil Blackwell, 1974) 174-5.

4 Nozick above n 33 at 169-70.

3s Nozick above n 33 at 172.

36 Nozick above n 33 at 173-4.

3~ G. A. Cohen, for example, investigates various ways of rebutting Nozick's argument--'Self-Ownership, World-

Ownership and Equality part ii' (1986) 3 Social Philosophy and Policy 77. His preferred strategy is to argue that

'self-ownership' of the individual should be combined with 'joint ownership' of all resources. The analysis is

difficult to follow as Cohen employs a conception of 'joint ownership' which he does not explain. It seems to

involve a right of veto by each joint owner over actions on the part of other joint owners. Cohen makes no attempt

to relate his conception of joint ownership to instances of joint or group property actually to be found in real

property institutions.



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70 Oxford fournal of Legal Studies VOL 16

C Self-Ownership--the Marxist Version


2. I must own myself. Therefore

3. I must own all my actions, including those which produce a use value of any

kind. Therefore

4. Every service contract into which I enter constitutes a conveyance of my

labour power.

It must not be supposed that the self-ownership argument for a natural right

to property is the exclusive province of the political right. Karl Marx deploys it

in volume 1 of Das Kapital as part of his immanent critique of capitalist

production.

Marx takes over the first three steps in the liberal version of the self-ownership

argument. When feudalism was superseded by capitalism the worker ceased to

be a slave or a serf and consequently owned both himself and his labour

power--'something which does not exist apart from his living personality'.38 One

of the 'remarkable characteristics' of the capitalist mode of production is that

'the product is the property of the capitalist not that of the worker who functions

as direct producer'.39 To explain this remarkable characteristic, Marx substitutes

a new fourth step in the classic self-ownership argument. Within the circulation

of commodities, every service contract is necessarily a conveyance of the own-

ership of labour power from employee to employer.

'Labour power' denotes 'the aggregate of those bodily and mental capabilities

existing in a human being whenever he produces a use value of any kind'.4"

Whenever one person contracts to sell his services to another it must be the case

that, in legal form, there is an exchange of equivalents. The buyer transfers

money and the seller transfers ownership, for a certain time, of his labour power.

Just as the purchaser of any other commodity acquires an ownership interest in

it which confers on him exclusive use-privileges and control-powers over the

thing he has bought, so too the purchaser of labour power is, under bourgeois

law, free to make any use, or control any use by others, of the aggregate bodily

and mental capabilities of the worker during the time for which it is sold. He

consumes the 'use values' of what he has purchased.4'

In discussions of Marx's labour theory of value, scant attention has been paid

to the use he makes of specifically proprietary concepts. His notions of conveyance

and ownership of labour power are, however, a crucial plank in his analysis of

the creation and 'expropriation' of surplus value.

In this analysis, commodification is (grace of the self-ownership premise)

identified with propertization. Although Marx has employment contracts prim-

arily in mind, it seems that the analysis would apply, by the same logic, to all

38 Karl Marx, Das Kapital volume 1, translated from the fourth German edition by Eden and Cedar Paul,

J. M. Dent, Everyman's Library, 1972, 155.

39 Marx above n 38 at 178.





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service contracts. There is no question of making the distinction familiar to

lawyers between contracts of service (those between master and servant or

employer and employee) and contracts for services (those between a principal

and an independent contractor). If you buy a commodity of any kind, including

services, there must, in legal form, be an exchange of property for property. You

pay money. He conveys ownership of his aggregate bodily and mental capabilities.

C. B. Macpherson plays the Marxist version of the self-ownership argument

backwards as the basis for distinguishing ideal-typical societies. All societies in

which people are regarded as free to sell their services to others are different

from all other kinds of society in the following way. Since every service contract

is a conveyance of labour power (step 4), such people must think that they own

all their use-value-producing actions (step 3), and therefore they must suppose

that they own themselves (step 2). They are 'possessive individualists'.42

Macpherson argues that Thomas Hobbes-who said that without an absolute

and unlimited sovereign authority men would exist in a state of savage barbarism-

was right about societies of this sort, but wrong about all other societies. A

community which tolerates service contracts is peopled by citizens who suppose

they own themselves; and the mentality of that sort of person is such that,

were a centralized and unlimited coercive power removed, they would become

Hobbesian savages. In contrast, a society composed of men and women who

are not thought of as free to sell their services, and therefore do not suppose

that they own themselves (such as a feudal society or, presumably, one subjected

to a thoroughgoing command economy), is peopled by individuals who would

not revert to savagery if sovereign coercive power were removed. Marx surrounded

his analysis with a wealth of documented historical detail about industrial

practice. Macpherson saw no need for that. Everything followed from the Marxist

version of the self-ownership argument, played backwards.

D The Spectacular Non Sequitur

The reader has probably already noticed the spectacular non sequitur between

the first and second steps of both the liberal and the Marxist versions of the self-

ownership argument. From the fact that nobody owns me if I am not a slave, it

simply does not follow that I must own myself. Nobody at all owns me, not

even me

It is one thing to invoke self-ownership in the context of the bodily-use freedom

principle by borrowing, for rhetorical purposes, upon the familiar vocabulary of

property institutions. It is another to place self-ownership inside a property

institution and to go on to draw conclusions from it about ownership of resources,

as Locke and Nozick do. Since the abolition of slavery, human beings have (so

far as the actual working of property institutions is concerned) been removed

from the property agenda. Only the speculations of philosophers have sought to

keep them there. By no means all political philosophers have succumbed to the

42 C. B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (OUP, 1962).



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non sequitur and the self-ownership myth. Mill has a section in which he

enumerates the things which are beyond the scope of property, and human

beings head the list.43 Although he had quite a lot to say about liberty, Mill did

not find it necessary even to invoke body ownership rhetorically.

As to the fourth step in the Marxist version of the self-ownership argument,

picture the bafflement which would be provoked if a law teacher were to inform

her students that every service contract is a conveyance. Commodification is not

the same thing as propertization. If people disagree as to whether a woman

should be free to sell her charms for a beauty contest, they differ as to whether

that kind of service ought to be a commodity. They might invoke body ownership

rhetoric on either side of the question-'Women's bodies are their property to

dispose of as they please ' 'Women's bodies are not chattels to be traded ' Neither

side to such a dispute supposes that the organizer of the beauty contest would

acquire an ownership interest over the totality of the woman's mental and

physical capabilities.

Labour is a commodity but, outside slave-owning or feudal societies, it is not

an entity as to which ownership interests are transferred. Marx had before his

eye the down-trodden spinning hand or the skivvy servant of the Victorian

household. No doubt the tyrannical employer of such people could, in practice,

order them to make any use whatever of the totality of their capabilities so that

property rhetoric would be in order-they were little better than slaves But that

is hardly a necessary feature of all service contracts. Only the self-ownership (and

hence labour-ownership conveyance) premises could lend colour to the suggestion

that it was.

If I hire a plumber or a gardener, or if I take on a job as a university teacher,

I buy or sell services. I receive or transfer ownership of nothing. The organizing

idea in all service contracts is their express or implied terms. It is not an ownership

interest. Service contracts may or may not be harsh or exploitative; but, whatever

else they are, they are not conveyances of a special ownable entity known as

'labour power'.

Employment contracts might be brought within the purview of property

institutions in one of three ways. The employee might be accorded a right to

attend at certain premises to carry out his work and to receive remuneration

from the owner of the premises, which rights would be enforceable against any

successor in title to the premises. Then he would be vested with a non-ownership

proprietary interest over the land in question, a special kind of personal servitude.

Secondly, the employee might be empowered to sell all the rights granted to

him by his employment contract on the open market, without any kind of veto

by the employer. That would vest him with cashable rights, which could be

made the subject of expropriation rules to the benefit of his creditors. Thirdly,

the employer could be empowered to trade for money all his rights against the

employee irrespective of the employee's consent, so that the employer would be

43 Priniples of Political Economy above n 30 book 2.2.7.



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vested with cashable rights which could again be the subject of expropriation

rules. Whether any such moves are feasible or desirable is smothered with

obfuscation if we insist that jobs are already necessarily a species of 'property';

and the obfuscation is worse confounded if, following the Marxist version of the

self-ownership argument, labour power itself is deemed to be property.

E Labour-Ownership and Judicial Reasoning

Judges in common law jurisdictions, when they address disputed questions about

particular features of property institutions, typically deploy a wealth of traditional

doctrinal categories. Since doctrine is often unsettled or indeterminate, they

inevitably dip, from time to time, into the mix of property-specific justice reasons

summarized above. In one particular context-the evolution of informally-created

interests in land-English judges have occasionally invoked, not self-ownership

as such, but labour-ownership and consequent ownership of the fruits of labour

(that is, steps 3 and 4 in the liberal version of the self-ownership argument). If

doing that has produced just outcomes, might it not be claimed that we

ought to hang on to the notion of labour-ownership notwithstanding its classic

dependence on self-ownership and the spectacular non sequitur?

Suppose that the legal title to property is vested in 0, but C asserts that she

ought to be accorded a share in it. Three doctrinal streams meander (and from

time to time converge) in current English law. If C paid part of the purchase

price of the property then, unless it can be shown that she intended to make a

gift or a loan of the money, she acquires an equitable interest proportionate to

her contribution. Secondly, if C can establish that O and C shared a common

intention that C was to acquire a share in the beneficial ownership and that C

has acted to her detriment in reliance on that common understanding, the court

will impose a constructive trust in her favour under which she receives that

share. Thirdly, if it is shown that O made any kind of representation about C

enjoying some beneficial use of the property and C has acted to her detriment

in reliance on that representation, then the court will hold O estopped from

going back on his representation and award C such interest in the property (if

any) as is warranted in all the circumstances.

The first stream (money-down presumed resulting trusts) is the oldest of the

three. For at least two hundred years it has been established that a person who

provides all or part of the purchase money of land thereby becomes its total or

partial owner in equity.44 The historical origin of the doctrine is obscure, but it

may be rationalized in the following way. C did not intend to part outright with

her ownership of the money. She intended to retain ownership of that into which

the money was being transmuted (its fruit), and this transactional intention, like

other transactional intentions on the part of property owners, should be given

effect. In cases at the end of the 1960s it was sought to extend this doctrine, by

analogy, to situations in which C had not contributed money to the purchase

44 Dyer v Dyer [1788] 2 Cox Eq Cas 92.



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price but had increased the value of the property by her work. If she was the

owner of her labour she should be regarded as owner of its fruits. As Lord

Denning MR put it: 'The wife's services are equivalent to a financial contribution

and it has repeatedly been held that when a wife makes a substantial financial

contribution she gets an interest in the asset that is acquired'.14

As a means of achieving just ends, the labour-ownership/money-ownership

analogy has considerable shortcomings. It only works if one can somehow trace

the labour input into some quantifiable share of an asset. It is of no help where

C's claim to share in the property is founded on the overall contribution she has

made to the family life of herself and O and their children. Even where her work

has been directed specifically towards the improvement of the disputed asset, it

may be difficult to trace her labour through into a portion of added value (as

steps 3 and 4 of the self-ownership argument require). Not surprisingly, the

analogy has run into the sand. In a recent case, the House of Lords held that a

wife acquired no interest in a house vested in her husband, even though she had

put in weeks of work as a skilled decorator and had supervised the builders

employed to renovate it. Lord Bridge said: 'On any view the monetary value of

Mrs Rosset's work expressed as a contribution to a property acquired at a cost

exceeding ?70,000 must have been so trifling as to be almost de minimis'.46

Outcomes of this sort have been condemned from many quarters for their

failure to give effect to just claims. Various justice reasons bear on the situation,

but, so far as they are founded on C's work, labour-ownership and its product

constitute a misleading distraction. The appropriate property-specific justice

reason is labour desert. That argument for a natural property right is, as we saw,

hostage to convention. It does not have the seemingly automatic follow-through

of the self-ownership argument. Nevertheless, it is of wider application since it

is not limited to work specifically quantifiable as asset-improvement. Once forced

on the attention of a court, a view would have to be taken as to whether current

social conventions do or do not recognize, for example, that a woman who has

devoted years to rearing a family deserves a share in the family home should the

relationship between O and C break down. (Courts do indeed place considerable

weight upon this justice reason in the exercise of their discretion to re-allocate

property on divorce, being specifically enjoined to do so by Parliament.)"4

Once desert is recognized as the appropriate basis for fruits-of-labour claims

by persons in the position of C, it would still be necessary to show how justified

claims could be fitted into the doctrinal categories of either common-intention

constructive trusts or proprietary estoppel or some sublimation of both. I shall

45 Nixon v Nixon [1969] 3 All ER 1133, 1136. See also Muetzelv Muerzel [1969] 1 All ER 443; and Re Cummins

Decd, The Times, 14 July 1971.

46 Lloyds Bank Pie v Rosset [1991] AC 108, 131.

47 S 24 of the Matrimonial Causes Act 1973 confers the jurisdiction. S 25 (as substituted by s 3 of the Matrimonial

and Family Proceedings Act 1984) lists factors to which the court is to have regard in exercising it, and these

include 'the contributions which each of the parties has made or is likely in the foreseeable future to make to the

welfare of the family, including any contribution by looking after the home or caring for the family'.



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not here discuss how that might be attempted. In any event, labour-ownership

is, in this context, neither a useful nor a necessary organizing idea.

5 Ownership of Separated Bodily Parts


2. I must own my own body and each and every part of it. Therefore

3. If any part of my body is separated from me, I continue to own that separated

bodily part.

Political philosophers who have invoked the notion of self-ownership have

been concerned with labour-ownership and consequent ownership of the firuits

of labour. They were not interested in claims to own anatomical bits and pieces.

Until recently, the detritus of the barber's shop or of the surgeon's operating

theatre were hardly of sufficient value to provoke disputed property claims. That

is now changing. Separated bodily parts can be used for important biotechnical

research, and may even have immense commercial value. It may seem obvious

that the human source of any such part ought to be able to assert ownership of

it if he has a mind to. If we begin with that assumption, the above three-step

simplified version of the self-ownership argument might seem a handy justificatory

peg for it. If it is, should we not reinstate the notion of self-ownership (at least

in this context) and seek some means of overcoming the spectacular non sequitur?

If not, is there any other basis on which the source, or anyone else, might found

a claim to own the separated bodily part?

It should first be pointed out that, if we question the assumption for which

the simplified version of the self-ownership argument appears to provide support

(we deny that separated bodily parts are automatically owned by their human

source), we are not committed to holding that anyone else owns them. They

may be altogether off the property agenda. For example, when rules are instituted

governing the procedures to be followed when organs are transplanted from

living or dead 'donors' to patient recipients, it may not be necessary to fix

ownership of the organ, during the transition period, in anyone. The regulatory

regime set up under the Human Organ Transplants Act 1989 makes no as-

sumptions about ownership interests. It renders the commercial sale or purchase

of organs for transplantation criminal, but that is a property-independent pro-

hibition-it is not addressed to 'owners'.

Even when provision is made for permanent storage of bodily products, they

need not be brought within the purview of a property institution. As we saw

when discussing the nature of property institutions in Part 2, there are two pre-

conditions for the propertization of an asset. First, there must be trespassory

rules banning intermeddling by all-comers save a privileged individual or group.

Secondly, there must be reserved to the privileged individual or group either an

ownership interest proper (entailing an open-ended set of use-privileges and

control-powers and, sometimes, transmission-powers), or a quasi-ownership



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interest whose content is partially modelled on ownership interests proper. Stored

bodily parts may be the subject of trespassory rules, together with role-duties

imposed on particular officials, without either ownership or quasi-ownership

being reserved to any person or institution.

This has traditionally been the pattern in most societies so far as corpses are

concerned. Respectful abstention from meddlesome interference was demanded

of all, except next of kin, religious functionaries or public authorities. Any of

the latter might be vested with special disposal-powers or subjected to role-

duties in the interests of decency, sacred observance or public health, but they

were not clothed with ownership privileges and powers.

The same pattern holds in the United Kingdom today for human embryos

and gametes under the regime instituted by the Human Fertilisation and Em-

bryology Act 1990. The Act prohibits storage and use of embryos and live

gametes to anyone except the holder of a licence granted by the Human

Fertilisation and Embryology Authority. Licensees are permitted to store these

materials and their duties are elaborated in the Act and in regulations made

under it. There is no reservation to the authority or to any licensee of any set

of privileges or powers modelled on those inherent in an ownership interest

appearing anywhere along the ownership spectrum.

Anyone who supposed that the three-step version of the self-ownership ar-

gument was of universal application might object to both the 1989 and the 1990

Acts on the ground that at any rate a living source should be regarded as the

owner of organs or embryos or gametes removed from him or her, so that at

least some form of compensation should have been offered when these things

were removed to a non-property regime. Or it might be suggested that these

cases are exceptional, relating as they do to sensitive issues of survival or

reproduction; and that less emotively-loaded separated bodily parts should, as

the argument requires, always belong to the source.

It is important to bear in mind the distinction to which attention was drawn

in connection with the Marxist concept of labour-power, between com-

modification and propertization. It is arguable that any sale by a human being

of parts of his or her body is such an affront to our fundamental notions of

human dignity that it ought not to be permitted.48 Supposing, however, we

thought that people ought to be free to sell their organs and their blood by virtue

of the bodily-use freedom principle. We would then accept that services of these

kinds should be commodities. That would leave as a separate question whether

ownership or quasi-ownership privileges and powers should be vested in someone

over the organ or the blood once it was removed. It is a controversial question

whether the services of surrogate mothers or of prostitutes should be saleable as

commodities. It would be obfuscatory to claim that, if they were, recipients

would thereby be made 'owners' of the surrogate children or of the prostitutes.

48 See Stephen R. Munzer, 'An Uneasy Case Against Property Rights in Body Parts', in Ellen Frankel Paul,

Fred D. Miller Jr and Jeffrey Paul (eds) Property Rights (CUP, 1994).



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Wholly novel problems, both of commodification and of propertization, arise

when we are confronted by a piece of excised human tissue (T) of which three

things are true. First, T is not an organ vital to the survival of a recipient, nor

is it connected with human reproduction. Secondly, T is susceptible of permanent

exploitation for a wide variety of therapeutic purposes with great commercial

value. Thirdly, it is not practical to realize T's potential unless someone is

accorded ownership privileges and powers over it-that is, no enumeration of

all beneficial uses can be attained, so it is necessary to invoke the familiar

organizing idea provided by a property institution."

As a general question of property-institutional design, such as a legislature

might face, there are three possibilities. First, ownership of T could be vested

in its human source. Secondly, ownership might be conferred on the person who

first gets hold of T knowing of its therapeutic potential-call him 'the first

knowing appropriator'. Thirdly, a quasi-ownership interest over T might be

vested in some emanation of the community, with a mandate to exploit it to the

maximum for the equal benefit of all citizens.

Californian courts were presented with the opportunity to choose between

solutions 1 and 2 in the celebrated litigation brought by John Moore.so Moore

went to the medical centre of the university of California in Los Angeles in

1977. He was diagnosed by Dr Golde (an employee of the university) as having

an enlarged and diseased spleen. He was advised that the spleen should be

removed, and the operation was duly carried out. That Moore (up to this point)

had received good medical advice and that the operation was necessary and

successful was never disputed.

During the next seven years Moore was asked to attend from time to time at

the medical centre, where samples of his blood and other bodily substances were

taken. Eventually, he learned that Dr Golde and an associate, also employed by

the university, had developed a cell-line from the excised spleen and the other

extracted substances. Owing to a unique peculiarity of these materials, the

cell-line created from them had great therapeutic potential. By a process of

recombinant generation, it constituted an immortal product. In 1984 the regents

of the university registered a patent of the cell-line. Drug companies purchased

licences of the cell-line from the patentees. By 1990 the cell-line was said to be

the basis of a three billion dollar industry.

Moore sued Dr Golde, his associate, the regents of the university and two of

the licensee drug companies for the tort of conversion. A person commits that

civil wrong, inter alia, if he exercises dominion over a chattel which is owned by

someone else. Dominion had certainly been exercised over the materials taken

from Moore's body in order to create the cell-line. The question for the courts

49 See R. Hardiman, 'Toward the Right of Commerciality: Recognising Property Rights in the Commercial

Value of Human Tissue' (1986) 34 UCLA L Rev 207; N. Danforth, 'Cells, Sales and Royalties: the Patient's Right

to a Portion of the Profits' (1988) 6 Yale Law and Pol Reve 169; Barry Hoffmaster, 'Between the Sacred and the

Profane: Bodies, Property and Patents in the Moore Case' (1992) 71 Int Pop J 115.

50 Moore v Regents of the University of California [1988] 249 Cal Rptr 494 (Court of Appeals); [1990] 271 Cal

Rptr 146 (California Supreme Court).



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to decide was whether Moore or the university was the owner. The Court of

Appeals found for Moore. The Supreme Court of California, by a majority,

found for the university.

Technically, the Supreme Court had only to decide against Moore's ownership

in order to dismiss his claim. Nevertheless, their reasoning was premised on the

assumption that ownership ought to be accorded to the employers of the first

knowing appropriator. They said: 'The theory of liability that Moore urges us

to endorse threatens to destroy the economic incentive to conduct important

medical research'."5 That incentive would, of course, also be absent unless the

institution engaged in research and development itself enjoyed a protected

ownership interest. As Broussard J pointed out in his dissent: 'If, for example,

another medical center or drug company had stolen all of the cells in question

from the UCLA Medical Center laboratory and had used them for its own

benefit, there would be no question but that a cause of action for conversion

would properly lie against the thief, and the majority opinion does not suggest

otherwise'.52 In the view of the Court of Appeals: 'Defendants' position that

plaintiff cannot own his tissue, but that they can, is fraught with irony'.53

This was a case of first impression. There was no common law decision

directly in point, let alone a binding precedent. It was a classic situation on the

frontiers of property, in which an existing trespassory rule, the prohibition of

conversion, had to be applied, or not applied, to a novel set of facts; and that

turned on what view was taken, in principle, about the mix of relevant property-

specific justice reasons.

Consequentialist reasoning occupied a considerable part of the judgments. It

was, in effect, agreed that, for the community

who owns my body?

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