Ownership Rights over Ones Person - Essay Example

10 December 2006 Ownership Rights over One's Person Some people believe that when a person's body, once lifelessand done with, needs to be cremated or buried, it cannot be considered a property in its accurate sense. Others, however, argue that a person has a right of ownership over his own person. But before we finally get a clear-cut resolution to this impasse, we need to define "property" and "ownership" counting in the incidents surrounding it. In its most extensive and unadorned meaning, "property" may be defined as that which is a fruit of one's labour. It is more commonly described as a bundle of rights. John Locke explains that property is begun by labour, and it is labour which confers to a person a natural right to exclude others from it. However, quite a few pundits have believed that Locke's argument is only applicable in the state of nature but not in civil society, where property is decided not by one's work or effort but by laws. (Arneil 1996, p. 155) On the other hand, ownership is defined as "a particular type of property interest in which the person designated as owner is deemed, in some sense at least, to have the greatest possible interest in the thing." (Clarke 2005, p. 180) Another definition of ownership categorizes the owner as an individual who has ultimate control. (Waldron 1988, p. 47) But this theory cannot be said to be without any flaw. Although it has been said that ownership carries with it property rights and incidents, it is to be understood that ownership has a social aspect and the interest over it is not unbounded. The right to ownership is not absolute; there are some limitations to the enjoyment of one's right to property and ownership. Basic examples of these limitations include the prohibition of nuisance and injurious usage of a property; legal responsibility to taxation, execution and expropriation; State rules intended to regulate the use of property; and sometimes, imposition of certain obligations. While there are some limitations to the enjoyment of one's property and ownership, certain incidents are intrinsically extant in the concept of ownership. A. M. Honore offered the idea of eleven (11) incidents of ownership. These incidents can be verily summarized as the right to control and income. In the incident of control, the right to possession, use and management are included. The right to possess is that inherent right to obtain physical control over the thing, while the right to use is characterized by the owner's personal use and enjoyment of the thing owned. Both of these rights include consumption and modification. The right to manage, on the other hand, is that right to choose and determine the manner and the person with which and with whom the thing owned shall be used. The income incidents, in contrast, include the right to income or the fruits, profits and rent produced by the thing owned. Other incidents consist of the right to capital, right to security, power of transmissibility, the absence of term, the prohibition of harmful use, liability to execution and the incident of residuarity. Being incidents of ownership, the foregoing rights are inherent in the concept of ownership of property. Now that the basic definition and concept of property and ownership have already been extensively discussed, let's go back to the earlier question with regard to the classification of body and/or its parts as "property". In his book Second Treatise of Government, John Locke wrote: Though the earth and all inferior creatures be common to all men, yet every man has a "property" in his own "person." This nobody has a right to but himself. The "labour" of his body and the "work" of his hands, we may say, are probably his. (Locke 2004, 17) The essential meaning of this connotation is that, a human being has all the right and ownership over his own "person." But does it mean he can have all the incidents of ownership over his person Can one appropriate and alienate his own person What about his own body The answer is dependent on how you approach the issue. There are in fact several schools of thought regarding this subject matter, in fact decided by the Highest Courts of different countries. In the landmark case of Moore v. Regents of the University of California (1999), the Supreme Court of California has made a sweeping decision on the vital issue of whether or not Moore owns his biological materials. This is a case where a physician who attended a patient for hair-cell leukaemia had made use of the latter's excised cells in medical research, which made the former earn a lot of dough for inventing a cell-line. The patient then sued for conversion tort which prohibits intrusion to one's possessory and ownership interests in personal property. The patient contends that '(i)f the courts have found a sufficient proprietary interest in one's persona, how could one have not a right in one's own genetic material..' In contrast, the position of the defence is that the excised human cells in medical research cannot be a subject of conversion tort considering the fact that they are not considered "property." The Supreme Court of California ruled in favour of the defence. The Court held that the extension of conversion law into research made on human cells will only hinder the study by limiting the access to the necessary raw materials, in this case, the human cells of Moore. The exchange of scientific materials, which still is relatively free and efficient, according to the Court, will definitely be compromised if each cell sample becomes an impending subject matter of a lawsuit. The aforesaid all-encompassing decision of the Court has drawn a lot of dissenting opinions from different justices of the court. One appealing dissent came from the distinguished Justice Broussard wherein he strongly disagreed to the majority's analysis in that, it cannot rest on the comprehensive proposition that a human body part is not property. It should lie, however, on the fact that no ownership interest exists once a body part has been separated from the body. An all different, yet as interesting as the aforesaid case, is the Kelly Case. In this case, the similar issue was present, i.e., whether or not parts of a human body can be considered as "property" in order to determine if there was a commission of theft. (R v. Kelly, 1998) This is a case where Kelly and Lindsay, employees of the Royal College of Surgeons, took away a number of human body parts from the College to Kelly's home. Kelly, who is an artist, made casts of the parts which he exhibited in his art gallery. The court specified two issues: (1) Whether Kelly and Lindsay had acted dishonestly; and (2) whether at the time they took the body parts, they acted in the honest belief that they had the right to do so. The court intelligently answered these issues in a detailed discussion of the core question as to the classification of a human body part in connection with the term "property." The foremost contention of the defence is that parts of bodies were not in law capable of being property, hence could not be stolen. The defence further argued that some specimens were not anymore utilized by the College because of deteriorated or depreciated state owing to the verity of their age. However, notwithstanding this contention, the Court still ruled in the negative taking the standpoint that the specimens and/or human cells were property citing as basis the Australian case delivered by Chief Justice Griffith in Doodeward vs. Spence (1908). Chief Justice Griffith in the aforesaid groundwork stated that: When a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject of course, to any positive law which forbids its retention under the particular circumstances. (p. 414) This is true as regards the present case of Kelly, in that, the subject specimens were preserved and fixed by college staff and other medical agencies. It was established in the case that these human body parts exhibited in the college underwent a regular system of scrutiny and inspection for purposes of maintenance and upkeep. These specimens were subjected to "prosection" or the expert analysis and dissection for purposes of uncovering the internal works of the body parts. Considering the foregoing, the human body parts, after the process of analysis and prosection, have acquired the characteristics which made it distinct and individual from ordinary human body parts meant to be cremated or buried. Correlating these two cases of Moore and Kelly to John Locke's theory that every man has property in his own person, it is quite obvious that the latter case is considered to be more binding and applicable taking into account the fact that said case was decided by the British court, as opposed to the Moore case which is an American jurisprudence. Moreover, the Kelly case gives more rationalization regarding the matter of treating human body parts as property in order to confirm one's right over his own person. It made a distinguished requirement or prerequisite as basis in applying the aforesaid ruling of the court. On the other hand, the Moore ruling of the American court made an all-inclusive statement as to the subject matter. It failed to formulate certain rules which would create a distinction in applying the said jurisprudence. True enough, a lot of justices aired their opinions of disagreement to that particular proposition in the Moore case, that is, that a removed body part, such as human cells excised from a body of the patient, cannot be considered as property. This pronouncement is not only evidently questionable but also poses danger as it would be made to apply to cases with a different set of facts. Undoubtedly then, basing this conclusion on the aforesaid facts and jurisprudence, it is safe to assume that a person can regard his own "person" as a property for purposes of claiming exclusive right of ownership over it. Indeed, as John Locke intelligently put it, "every man has property in his own person." Reference List Arniel, B. 1996, John Locke and America: The Defence of English Colonialism, Oxford University, USA. Clarke, A., Kohler, P. (ed.) 2005, Property Law: Commentary and Materials, Cambridge University, UK. Doodeward v. Spence (1908) 6 CLR 406. Locke, J. 1980, Second Treatise of Government, Hackett Publishing Co., Indianapolis. Moore v. Regents of the University of California (1999) 51 Cal. 3d 120, 793 P.2d 479. R. v. Kelly (1999) QB 621. Waldron, J. 2002, The Right to Property, re-print edn, Oxford University Press, UK. Read More