Who Owns My Body?

Who Owns My Body
Author(s): J. W. Harris
Source: Oxford Journal of Legal Studies, Vol. 16, No. 1 (Spring, 1996), pp. 55-84
Published 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
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 thinglike 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.
SPRING 1996 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.

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 constitutional 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 assumptions, 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).

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 openended 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.

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 interactions, 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.

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 'cashable rights'.

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 selfseekingness. 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.

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 useprivileges, control-powers and powers of transmission over slaves similar to those
enjoyed over other valuable chattels (although there might be some propertylimitation 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).

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.
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 selfassertion--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.

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
my 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 bodyownership 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 institution 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.

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 expectations.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.

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 incentiveinstrumental argument mentioned above. But the creation-without-wrong argument 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.

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-withoutwrong 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

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, WorldOwnership 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.
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 ownership 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 primarily 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.

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).

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.

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.

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'.

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 assumptions about ownership interests. It renders the commercial sale or purchase
of organs for transplantation criminal, but that is a property-independent prohibition-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

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 roleduties 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 Embryology 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 argument 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 commodification 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).

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).

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 to reap the full benefit of research
and development, ownership of these wonderful by-products of surgery must be
vested in someone. That followed from the incentive and market instrumental
justifications for property institutions mentioned in Part 4 above. The majority

of the Supreme Court were impressed by the argument that if patient-sources
were conceded ownership, researchers would be inhibited by the danger of being
subjected to civil liability." They further pointed to the undesirability of patients
shopping around, to the detriment of their medical best interests.55 The Court
of Appeals and the minority in the Supreme Court read the consequences the
other way. They said that if it was clearly laid down that the patient-source was
the owner, he would no doubt sell his precious extracted tissue to someone so
that, with appropriate record-keeping, there would be no uncertainty as to title."5
51 [1990] 271 Cal Rptr 146, 162.
52 Ibid 168. The majority opinion refers to legislation which drastically restricts powers of disposal of such
materials and requires them to be destroyed once research is terminated-ibid 158-9. These provisions did not
entail that the cells were no one's property, since evidently they did not restrain the university from exercising
ownership privileges and powers, for research and profit. They were thus property-limitation rules.
53 [1988] 249 Cal Rptr 494, 507.

54 [1990] 271 Cal Rptr 146, 154-5, 160-3.
ss Ibid 151.
56 f1988] 249 Cal Rptr 494, 508-9 (Court of Appeals); [1990] 271 Cal Rptr 146, 171-3, Broussard J, 180-2
Mosk J.

The Court of Appeals surmised that medical institutions might themselves be
corrupted in making clinical judgments if they knew that surgery might bring a
shower of gold.57
Consequentialist considerations ('policy') are an accepted and appropriate

feature of common law adjudication. In this case, however, the contrasting (and
somewhat speculative) consequentialist claims probably cancelled out. Devotees
of economic analysis of law would require the situation to be resolved as follows.
Assume nil transaction costs and attribute to all concerned the motives of a
rational maximizer of resources. Ask who would pay most for the use of the
object and see to it that your institution is designed in such a way that the object
comes into the hands of that person. Then the asset will be at the service of him
who values it most, total wealth will be maximized and the 'efficient' outcome
achieved. If the problem is still unresolved, bring in real (predictable) transaction
costs.58
Now those willing to pay most for the use of the golden cell-line were the
drug companies who bought licences of the patent. Those licences they will
obtain whether Moore or the university is the original owner of the materials
from which the cell-line was developed, if we assume that any owner would be
a rational maximizer and that transaction costs are nil. Even if we bring in
transaction costs, making Moore owner adds only one more transaction since
he will sell to those able to put in the necessary research and development.
Assuming that the Court of Appeals and the Supreme Court minority were right
about the practicability of keeping title records, the difference is insignificant.
Economic analysis tells us only that there must be an owner and that the
ownership interest vested in him must be one carrying adequate powers of
transmission to ensure that the drug companies can buy. It yields no answers
about original conditions of title.
In the judgments of the courts, intermingled with the consequentialist claims,
there were different views as to the moral base-line. The Court of Appeals and
the minority in the Supreme Court supposed that a person has what I have
termed a natural property right over materials taken from his body. The majority
of the Supreme Court denied this. Arguments for or against such a natural right
were not systematically addressed. In effect, however, three in its favour emerged,
founded, respectively, on privacy, self-ownership and creation-without-wrong.

The Supreme Court majority countered the privacy argument and ignored the
other two.
The privacy argument floated in the Court of Appeals was to this effect.
Medical treatment offered to a person without fully informing him of all the
consequences of the operation, including any possible therapeutic and commercial potential of materials to be taken from him, is an invasion of his privacy.
Therefore, he ought to be regarded as owner of whatever is excised. 'A patient

must have the ultimate power to control what becomes of his or her tissues. To
5t [1988] 249 Cal Rptr 494, 508-9.
ss See Richard A. Posner, Economic Analysis of Law (4th ed, Little Brown and Co, 1992) ch3.

hold otherwise would open the door to a massive invasion of human privacy
and dignity in the name of medical progress.'59 The Supreme Court considered
that the privacy right would be sufficiently safeguarded by imposing a duty of
full disclosure upon the medical practitioner. They said that if it could be proved
that Dr Golde had been aware of the potential at the time of the splenectomy
and had withheld that information from Moore, Moore would have an action
against Golde personally for failing in his duty.60 Considerations of privacy did
not, however, entail that Moore should be accorded ownership of the excised
spleen and its product, with a consequent right to sue for conversion anyone
who, at any time, intermeddled with the cell-line without his leave. 'Yet one
may earnestly wish to protect privacy and dignity without accepting the extremely
problematic conclusion that interference with those interests amounts to a

conversion of personal property.'6'
If Y comes across a piece of anonymous diseased anatomy which once formed
part of X's body, it does seem a little far-fetched to suggest that anything Y may
do to the material constitutes an invasion of X's privacy. It might be otherwise

if the separated part is identifiable-for instance, ifY puts on display X's beautiful
and easily recognizable locks after they have been cut off. One might argue for
a novel kind of non-ownership proprietary interest over chattels of this sort,
entitling the source to prohibit any use of them into whomsoever's hands they
might come. Be that as it may, privacy is not an adequate justificatory basis for
anything approaching full-blooded ownership over all separated bodily parts.
The self-ownership argument was-needless to say-not spelled out in the

precise terms of the simplified version set out above. Nevertheless, the three
steps are, somewhat cryptically, voiced in the judgments. The Court of Appeals
stated that there is 'a dramatic difference between having property rights in one's
own body and being the property of another';62 and that the rights which a
person has to determine uses of his own body 'are so akin to property interests
that it would be a subterfuge to call them something else'.63 That is to say, if
nobody else owns me, the rights over my body which follow from the bodilyuse freedom principle must be regarded as constituting an ownership interest
over my body vested in me. From that it followed that a patient-source must
own every part of his body both before and after separation.
Mosk J, in his dissenting judgment in the Supreme Court, decided that 'every
individual has a legally protectable property interest in his own body and its
products'.64 To reach that conclusion, he ran the three-step argument backwards.
He noted that our society acknowledges a profound ethical imperative to respect

the human body 'as the physical and temporal expression of the unique human
60
[1990] 249
271 Cal
.9 [1988]
Cal Rptr
Rptr 146,
494,150-4,
508. 156-8, 160, 163-4. They did not make clear whether such an action would
enable Moore to share in Golde's profits. Broussard J interpreted the ruling as having this effect (ibid 167). Mosk
J disagreed (ibid 187).
61 Ibid 158.
62 [1988] 249 Cal Rptr 494, 504.
63 Ibid 505.
64 [1990] 271 Cal Rptr 146, 182.
SPRING 1996 Who Owns My Body? 8 1

persona'.65 That respect was manifested, inter alia, by the disappearance of
slavery and other institutions of servility. 'Yet their specter haunts the laboratories
and boardrooms of today's biotechnological research-industrial complex.'66 In

other words, if those conducting research and development with materials taken
from human beings deny that they are owned by the people from whom they
came (step 3), they are implicitly denying that those people own their bodies
(step 2), and that is tantamount to regarding them as slaves (step 1).
These attempts to fudge the spectacular non sequitur are clearly fallacious. The
actions of those engaged in biotechnological research may be questioned on
many grounds; but they do not, merely by seeking to acquire ownership interests
in waste human products, raise the spectre of slavery. It is not a subterfuge to
deny that: the premise that persons are not owned by other persons yields the
conclusion that the bodily-use freedom principle must be internal to property
institutions. That principle may well entail-as was accepted on all hands in the
Moore case--that a patient ought not to be subjected to medical treatment

without his fully-informed consent. One hardly needs to invoke property notions
to reach that conclusion. One might, perhaps, argue for a novel kind of chattel
servitude along the following lines. A patient might refuse to accept treatment
unless the medical practitioner agrees not to make use of any surgical by-product
without his consent. That bilateral transaction gives rise to an obligation binding
on the practitioner. Perhaps it should also be enforceable against anyone who
acquires the by-product knowing of the restriction, analogously to restrictive
covenants in the case of freehold land. However that may be, the bodily-use
freedom principle neither depends on, nor yields, conclusions about ownership.
The creation-without-wrong argument for a natural property right maintains
that, when a person creates some new scarce thing and in doing so wrongs no
one, she ought, in justice, to be accorded ownership of it. How might that
argument apply to Moore's case?
It is important to distinguish the cell-line as a tangible entity (a collection of
living cells capable of being made, through recombinant genetic engineering,
into an eternal organism), from the cell-line which became the subject of the
regents' patent. The latter comprised inventive ideas about how the cells could
be made to reproduce themselves and be harvested from time to time for products
of therapeutic value. Those ideas were owned by the patentees and Moore made
no claim to them. He claimed to own the cells from the moment they were
excised and his loss would have been measured by reference to their golden
potential at that time.
According to the creation-without-wrong argument, Moore must be recognized
as owner of the physical materials taken from his body since, without his consent
to the splenectomy and the other operations, no such things would have been
added to the store of valuable resources. Moore, rather than the surgeon, should
be regarded as the creator of this new item because his participation has the
65 Ibid.
66 Ibid.

greater causal significance. Any other competent surgeon could have excised the
spleen. No operation on any other patient could have produced the golden cell-
line. In the words of the Court of Appeals judgment: 'Without these small
indispensable pieces of plaintiff, there could have been no three billion dollar
cell-line'."6 In the words of Mosk J: 'for all their expertise, defendants do not
claim that they could have extracted the Mo cell line out of thin air'."6
As we saw in Part 4 there is the following objection to the creation-withoutwrong argument when it is stated abstractly. The premise that a person is morally
free to engage in creative activity does not entail a unilateral power to impose
new trespassory obligations on the rest of mankind in respect of the thing he
creates. The concrete context of separated bodily parts is, however, exceptional
in a way which allows the argument to work. If someone cuts off her own hair,
or consents to the surgical removal of some part of her body, she does not, by
insisting that others refrain from meddling with such items, purport to impose
new obligations. It was ex ante the case that rules protecting personal security
prohibited intermeddling with the whole of her body. By the cutting off, or the
removal, a new scarce thing has been brought into the world. By insisting on
trespassory rules to protect it, she is merely concretizing the existing bodyprotecting obligations.
Notice that the argument yields, not full-blooded ownership, but only an
ownership interest lower on the ownership spectrum (that which, in Part 2, I
termed 'mere property') which does not carry the full panoply of transmission
powers. Moore was the only begetter of the excised spleen with its rich cell-line
potential. He had a right that no one else should make use of it without his
consent both before and after its removal. That trespassory perimeter reserved
to him (for what it was worth) an open-ended set of use-privileges and controlpowers over the spleen. Full-blooded ownership, however, would entail that
trespassory obligations surround the spleen into whomsoever's hands Moore
chose to pass it by way of sale, gift or hire. No such exploitative powers of
transmission, and their concomitant extended trespassory obligations, applied
to the spleen before it was excised merely by virtue of the bodily-use freedom
principle. The fact of excision cannot, ipso facto, have created them.
The fallacious self-ownership argument might be supposed to support some
greater ownership interest in separated bodily parts, but the sound creationwithout-wrong argument yields only mere property. Mere property entitles the
human source to make such uses as he pleases of his bits and pieces and to
permit others to do so, but does not carry the transmission powers essential for
commercial exploitation. The source may or may not attach significance to this
ownership interest, but (being unsaleable) it possesses no measurable monetary
value. Hence no compensation is called for if the community decides that
particular items, such as those connected with reproduction or the survival of
recipients, shall be altogether removed from the property agenda.
67 [19881 249 Cal Rptr 494, 507.
68 [1990] 271 Cal Rptr 146, 178.

The courts in Moore's case were, however, constrained in two ways from
making the kind of de novo disposition of the problem which might be open to
a legislature. First, they had to choose between ownership vested in the patientsource and ownership vested in the first knowing appropriator.69 Secondly, the
conversion claim entailed that they had to fit the outcome into the common law
of chattel-ownership and the common law recognizes only full-blooded ownership
of chattels. They were obliged to award full-blooded ownership either to Moore

who (by virtue of the creation-without-wrong argument) had a natural right to
a limited ownership interest, or to the defendants who had no natural right
whatever. That being so, Moore ought to have won.
A legislature, free from the constraints imposed by adversarial common law
adjudication, might prefer the third solution to the problem of propertizing
valuable waste products of surgery. Suppose that beneficial exploitation of this
resource does indeed require that a fairly full set of ownership privileges and
powers be vested in someone, because of incentive and market instrumental
considerations. That requirement could be met if a quasi-ownership interest
were vested in some public agency with a mandate to exploit the resource to the
full, the profits to accrue to the public coffers. How might such a solution be
justified?
The majority of the Supreme Court opined that if Moore could sue for
conversion, that would enable him to recover a 'highly theoretical windfall'."0
They failed to notice, however, that their own disposal of the case conferred a
windfall on the defendants. The university medical centre happened to be the
place where the diseased spleen was removed. If the university acquires fullblooded ownership merely because it was one of their employees who spotted
the commercial potential, their luck outstrips that of any old-style treasure seeker.
We saw in Part 4 that there is a line of speculative thought about property

institutions which contends that all resources should be thought of as windfalls
so that, in principle, equality of resources is to be the guiding star of all questions
of property-institutional design. Whatever one thinks of that as a universal

dominating consideration, it clearly has force in relation to resources which
actually are windfalls--like the oil discovered under the North Sea. Perhaps
golden by-products of surgery should be looked on in the same way. Broussard
J, in his dissenting opinion, recognized that, with a clean slate, a solution along
'windfall' lines would be appropriate. 'It is certainly arguable that, as a matter
of policy or morality, it would be wiser to prohibit any private individual or
entity from profiting from the fortuitous value that adheres in a part of a human
body, and instead to require all valuable excised body parts to be deposited in
69 The state of California advanced no claim. Conceivably, it might have done so by extension of the bona
vacanda doctrine. That doctrine requires that, where property lacks an owner because its previous owner has died
intestate and without heirs, the property vests in the State. Here it would have to be argued that property should
vest in the State in respect of newly created things to which no one has a just claim to be owner.
70 [1990] 271 Cal Rptr 146, 163.

a public repository which would make such materials freely available to all
scientists for the betterment of society as a whole."7
In fact, if we assume that economic incentives for desirable research and

development require propertization, the public repository would need to be
vested with a quasi-ownership interest comprising adequate powers of commercial
exploitation (for instance, to sell exclusive licences to the highest bidder). The
valuable body parts would thus become 'state property'.
It is true that if the State takes the separated parts, in order to ensure that all
citizens benefit equally from their commercial potential, it deprives the source
of his mere property. -In the circumstances, some modest compensation should
be offered as a solatium. Full compensation is not required, because there is no
natural right to full-blooded ownership.
If the three-step version of the self-ownership argument (and its purported
inference as to full-blooded ownership over separated bodily parts in the human
source) had any validity, the above solution would be ruled out-not to mention
the problems it would create for proposals to remove sensitive human products
from the property agenda. Happily, since it commits the spectacular non sequitur,
it has no validity whatever.
In the very special context of the Moore litigation, we arrive, via the creation-
without-wrong argument, at the same conclusion (that favoured by the Court

of Appeals and the dissenting minority in the Supreme Court) as would have
followed if the self-ownership argument had been sound; but we do so without
any spurious assumption that to find against Moore is to treat him as a slave.
6 Conclusion
Invocations of self-ownership, as rhetorical or literary devices for emphasizing
the bodily-use freedom principle, are unobjectionable (if not taken too literally).
But for all purposes connected with arguments about the just distribution of
resources, nobody owns my body, not even me.
71 Ibid 172.

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Who Owns My Body

Who Owns My Bodyt

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

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

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

56 Oxford Journal of Legal Studies VOL. 16

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

2 What is a Property Institution?

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

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

SPRING 1996 Who Owns My Body? 57

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

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

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

branches of a common conceptual tree?3

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

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

58 Oxford Journal of Legal Studies VOL. 16

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

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

dispositively-one legal consequence follows if some jural entity constitutes

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

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

SPRING 1996 Who Owns My Body? 59

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

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

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

60 Oxford Journal of Legal Studies VOL. 16

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

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

Ownership interests also interact with trespassory rules in legal reasoning.

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

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

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

SPRING 1996 Who Owns My Body? 61

are 'quasi-ownership interests', 'non-ownership proprietary interests' and 'cashable rights'.

authority dealing with public monies. ....

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

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

62 Oxford Journal of Legal Studies VOL. 16

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

3 Body Ownership Rhetoric

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

SPRING 1996 Who Owns My Body? 63

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

in vivid form a conclusion already reached without it.

64 Oxford fournal of Legal Studies VOL. 16

subservient chattel of the husband'.23

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

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

23 RvR [1992] 1 AC 599, 616.

SPRING 1996 Who Owns My Body? 65

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

usually harmless, but always potentially proves too much.

4 The Fruits of Labour

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

66 Oxford Journal of Legal Studies VOL. 16

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