Property in Oneself

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University Degree Law

PROPERTY IN ONESELF

‘Every [person] has a property in [their] own person.

This nobody has a right to, but [them]self.’

I        INTRODUCTION

The statement ‘[t]o be a person is to be a proprietor and also to be property – the property of oneself’, reflects the dualism of self dominion espoused by John Locke and William Blackstone in the 18th Century; that a person – as a person - is naturally vested with absolute and inalienable rights over their own body, as provided by the ‘[i]mmutable laws of nature’. 

Whilst Anglo-western legal systems have afforded recognition of property rights in the product of ‘one’s labour’, it has consistently avoided such recognition in the human body itself, instead preferring to express ‘rights’ through separate areas of law. 

In this easily quantifiable ‘macroscopic’ world, the human body was either: an indivisible living person, a corpse or dead body parts. 

In modern times, technological advancements in the fields of human biology have complicated matters because the traditional law is now confronted with human derived ‘property’ on multiple scales and dimensions. 

The division and use of human biological material such as DNA and stem cells has expanded the use of human tissue beyond the macroscopic scale, raising confronting moral, ethical and cultural questions, and resulted in calls for the recognition of self ownership and proprietary rights in the human body.

This paper will critically analyse the concept of proprietary rights in relation to the use of human tissue.

II        BUT WHAT IS PROPERTY?

Property is intended to serve life, and no matter how much we surround it

with rights and respect, it has no personal being.

Property in its simplest form is a social relationship involving a ‘thing’ - the ‘thing’ being real or personal property, and the nature of this relationship is then given legal

effect by society’s recognition of rights over the thing.   Property is therefore ‘a bundle of rights’ associated with a thing, but not the thing itself – it is property because society through the law recognizes rights of power over it.

In Anglo-western society, things perceived as holding value through social relationships that gave rise to property rights were ultimately defined through the common law, and as society developed, rights became enshrined through statute to now cover many different forms of property.    Consequently, at the heart of property law is the recognition and regulation of competing interests over a thing of value.

III        HUMAN PROPERTY – TRADITIONAL LEGAL PERSPECTIVES.

It is preoccupation with possession, more than anything else, that prevents [people] from living freely and nobly.

Locke and Blackstone asserted that both property and ‘self’ exist in a symbiotic, ‘natural’ relationship of co-existence from the point of creation until death; totally interdependent and in a state of internality.   From this perspective, a person may have property in oneself, but it is not something that falls within the traditional concept of property law because it cannot exist externally to the self – one cannot exist without the other.   In life, property in oneself cannot be sold or transferred and therefore does not become the subject of competing interests – it represents pure dominion or sovereignty in oneself.   In death, the self ceases to exist and therefore so does the property, the only thing left, the body and body parts, is valueless and ownerless.

This has been the consistent approach of Anglo-western legal systems in dealing with the property/person dichotomy, which views humans as a special case, and consequently human specific areas of law have developed.   Consistent with the Lockean perspective, the law has also consistently affirmed there is ‘[n]o property in a

corpse’, or body part unless it:

 ‘[h]as undergone a process of skill, by a person authorised to perform it, with the object of preserving for the purpose of medical or scientific examination or for the benefit of medical science...[i]t thereby acquires a usefulness or value.’ 

Consequently, property rights in human bodies and tissue could only be ‘enlivened’, where labour and skill imparted a usefulness or value to the human tissue concerned. 

In order to constitute ‘property’ three essential elements are generally considered to be necessary.   The first two interrelated elements include the rights of dominion, and exclusion – both encompassing the ability to exercise legal power relating to possession, use, management, security, income, and capital.   With this control comes not only alienation, transmission and residual ownership rights, but also liability to execution, enabling creditors to recover debts by securing the property to realize debts incurred by the owner. 

The third element is that of externality; property must be an ‘external thing’.

One of the greatest challenges for categorization of human tissue as property, is to overcome the symbiotic hurdle, and to gain legal recognition that unchanged human tissue holds value.   It is a primary reason, property in oneself has not been afforded legal recognition within the scope of traditional property law.

IV        CAN HUMAN TISSUE BE PROPERTY & WHAT ARE THE PROBLEMS?

The dichotomy between personal liberties and property rights is a false one.

 Property does not have rights. People have rights.

4.1        Human Tissue As Property?

One of the arguments for recognition of property in human tissue asserts that people must ‘own’ their own bodies and the tissue derived from it, because no one else does.   It is now possible to obtain human tissue from living individuals and use it in a variety of forms.   Whilst traditionally the self and the property in life were indivisible, in modern times it has become divisible, and it is argued the law should be expanded to

treat human tissue like other forms of human derived property.

It can also be contrasted with the many different forms of ‘property’ that already exist within their natural state without any input of skill or labour, where even the slightest value vests proprietary rights in the thing.   Human tissue in its unchanged state now has considerable value potential, something it is argued the original donor should be able to benefit from.   It is also indistinguishable from many other natural things that are considered property, such as trees, animals or even pet rocks.   If human tissue is removed from the Lockean perspective, it appears to meet all the necessary elements required to constitute property; that of dominion, exclusion and externality.

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4.2        The Problems.

Whether human tissue is classified as property or not, problems exist with both approaches because property law, and the Lockean concept of oneself is defined from a dominant, individualistic and masculine perspective, reinforcing the complete myth that men are somehow superior to everything else.   Only people falling within the

definition of ‘citizen’ (almost always white men), were afforded rights under the special ‘human’ laws, whilst others either held no legal status or were classified as non-people without any real rights; the very real experience for indigenous peoples and women.

In times before slavery was abolished , many people were classified ...

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Property in Oneself
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