1

PROPERTY AND TRUSTS ASSIGNMENT

The concept of property has long been considered an illusive notion, difficult to completely harness
and define, the institution of property whether it is common, private or state owned has historically
sparked debate within the academic and philosophical community. Perhaps the primary reason for
this is that the meaning of property, our relation with it and the way view its function and value is not
constant. The actual institution, the way people see it, and hence the meaning they give to the word,
all change over time.
i
Many academics have formulated leading arguments for the recognition of
property rights, particularly philosophers who have set out a series of justifications as to why property
is necessary within a communal context.

In order to critically evaluate the leading arguments for and against the recognition of property rights
in human body parts it is essential that the blurred concept of property be first clarified. One of the
main factors influencing this misconception is that every definition of property has direct
consequences for questions regarding the distribution of economic wealth and power, while extending
to the role of governments and the autonomy of the citizens.
ii
Also contributing is the broad
application of the term property, its widespread usage and the often incorrect definition associated
with its use. In current common usage, property is things; in law and in the writers, property is not
things but rights, rights in or to things.
iii
To own property entails having a right in the sense of an
enforceable claim to use or benefit from something, property distinguishes itself from mere monetary
possession since it represents a claim that will be enforced by society or the state, by convention or
law.
iv
What constitutes property is in fact the legal tittle or the enforceable exclusive right to or in the
tangible thing.
v


The three categories that properties are placed in are private, public or common. Private property
refers to a kind of system that allocates particular objects like pieces of land to individuals to use and
manage as they please, to the exclusion of others and to the exclusion also, of any detailed control by
society, highlighting the fundamentals of private property.
vi
The person to whom a given object is
assigned (e.g., the person who found it or made it) has control over the object, it is then up to them to
decide what should be done with it.
vii
Philosophers have often argued that private property is
necessary for the ethical development of the individual and for the creation of a social environment in
which people can prosper as free and responsible agents within a community.
viii
Thus from
philosophical point of view, property is not simply an object or a thing, neither a simple relationship
between people, but rather knowledge and a mode of existence through which human mind is
developed.
ix


In a Public property system, resources are governed by rules whose point is to make them available
for use by all or any members of the society.
x
Common property is a different idea: here the
community as a whole determines how important resources are to be used; these determinations are
made on the basis of the social interest through mechanisms of collective decision-making.
xi
When
considering whether human body parts should be formally recognised as property and be capable of
accessing the rights associated with property, it is important to consider philosophical justifications as
a basis for arguing the issues validity. The issue raises two questions; can physical detachment
transform biological materials into things that are capable of being the subject to property rights? And
under what circumstances support the creation of property rights to separated biological materials?
xii

In jurisdictions deriving their law from England, the next of kin held a possessory interest in a corpse
for burial purposes; however they had no clear property rights to the dead body until late in the 19
th

century.
xiii
The rule of thumb had been that a corpse was considered an abandoned object and was
2
therefore not owned, dead bodies, alternatively were protected by non property laws such as criminal
sanctions in place for mistreating a corpse.
xiv


The leading authority on the matter is the case of Moore v Regents of the University of California
xv
, in
this case the Californian Supreme Court focused primarily on balancing policy considerations as to
whether individuals should be entitled to sell biological materials, which have been separated from
their bodies, and consequently overlooked the more fundamental question of who has the right to
control separated biological materials.
xvi
Many academics argue that balancing these policy
considerations should determine whether the law should recognise an individuals right to sell
separated biological materials, although many are concerned over the potential threat that individual
property rights poses to medical research and would dictate against granting such rights.
xvii


Philosophers have taken the discussions based on the justifications for the recognition of property
rights to the forefront of academic attention. It is their philosophical justifications based on the labour
theory, economic, and utilitarian arguments which have contributed greatly and shed much light on
this fascinating topic. One of the earliest of these justifications owes its existence to John Locke who
was one of the first philosophers to ground the institution of private property in labour, when he
formulated the labour theory of property.
xviii
The main theme of this theory is based upon the ideal
that people are entitled to own both what they produce by means of their own efforts and whatever
they have laboured on.
xix
Locke then goes on to then develop this argument based on individualism
when he mentions that In so far as an individual has an inviolable right in his or her own person, that
individual has an analogous right in his or her labour.
xx
Locke formulated his theory on the principle
that through the mixing of our labour with material objects we are, in essence, putting something of
ourselves into the material world, whereby value is added and ownership a right, following along this
train of thought can lead to an argument in favour of property rights in human body parts since the
individual is in essence giving something of himself for example a limb, which is used in labour and
adds value to their work.
xxi


One of the issues raised with this mixing metaphor is that it fails to resolve doubts as to how this
unilateral action of the labourer can serve as an acceptable justification for depriving others of the
rights of common ownership conceded at the outset.
xxii
Locke places two restrictions on this rule,
which he attempts to use as mechanisms to regulate and control its application.
For this labour being the unquestionable property of the labourer, no man but he can
have a right to what that is once joined to, at least where there is enough, and as good,
left in common for others.
xxiii


Locke goes on to suggest that individuals may appropriate as much property as they want, through
labouring on it, subject to these two conditions. There must be enough and as good, left in common
for others which resembles the relatively modern theme of ecological sustainability, attempting to
ensure all have the opportunity to enjoy the resources.
xxiv
This rule seems to promote the argument in
favour of recognition of human body parts as property since it will not lead to the shortage of property
(body parts) but will in fact lead to an increase in supply to meet demand. The second rule outlines
that no one should acquire such a vast amount of property that it would spoil in their possession.
xxv


Several issues become apparent with Lockes theory through deeper analysis, which in turn give rise
to many difficulties when considering the recognition of property rights. In regards to his mixing
metaphor, many consider that his theory operates to justify the unlimited private expropriation of land
and goods which are held in common, while his theory seems blind to any possibility of collective or
communal productive use beyond the narrow example of individual agriculture.
xxvi
The selectivity of
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persons capable of ownership also raises another complication within Lockes theory, Locke mentions
the turves my servant has dug belong, not to the servant, but to the owner, considering that his
theory is based on the personality of the appropriator there seems to be inconsistencies.
xxvii
The
labour theory also runs into to trouble in regarding his own provisos limiting the amount of property
appropriated by an individual.

Lockes conclusion that enclosure actually leads to more land being available to others
greatly exaggerates the benefits that the private property of one person has for the
others. Where one person effectively acquires a monopoly, the opportunities for others
are dramatically reduced.
xxviii


In relation to this matter considering human body parts, serious complications could arise if Insurance
or health companies attain a monopoly over the market, since the opportunities for others be
dramatically reduced if the products they sell are unaffordable. Further it can be argued that the
supply of diseased and unhealthy organs will increase the already high cost of medical care. Although
it must be noted if human body parts are classified as property it could lead to a far more regulated,
feasible and sustainable program which could help many people regain a quality of life they lost due
to a missing limb or malfunctioning organ. It is an open question in English law whether separated
biological materials can be considered property without the application of work or skill. Three
circumstances potentially create property rights one, work or skill performed on biological materials
two, detachment of any biological materials per se, and thirdly the detachment of biological materials
coupled with an intention to use such materials as property.
xxix


The case of Doodeward v Spence
xxx
serves as a valuable Australian case which explores the concept
of the recognition of property rights in human body parts. The High Court of Australia found that a
human body, or a portion of a human body is capable in law of becoming the subject of property.
xxxi

The case arose after a doctor had been found to have preserved the bodies of a pair of still Siamese
twins. After the doctors death the preserved babies were sold to Doodeward but then confiscated by
Police Inspector Spence on the grounds that Doodeward was exhibiting the bodies of the babies in
public. Doodeward later sued for the return of what he claimed to be his property and the high court
upheld his claim, the court later went on to say:

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.
xxxii


Essentially the court upheld Doodewards claim by applying the Lockean style reasoning that a
person has property in a thing with which that individual has mixed his or her labour.
xxxiii
Due to the
decision of Doodeward v Spence
xxxiv
, it is difficult to provide a general principle that accurately
summarises Australian law on the matter. However, what can be said is that there is no clear
statement that a person can exercise ownership over their body or body parts.

It was these problematic issues which gave rise to more academic and philosophical discussion
regarding the arguments for the recognition of property rights. Many stemmed away from the labour
theory to create their own justifications, one of the most convincing is the economic argument for
property. The economic argument for private property is based upon two pillars which not only create
the base for the theory, but also measurable and identifiable mechanisms to evaluate its
effectiveness; they are the twin goals of efficiency and wealth maximisation.
xxxv
The economic
4
argument places emphasis on the need for the law to provide incentives for a wealth maximising
while also pressing the belief that increases in overall wealth rebound to the benefit of wider
society.
xxxvi


The economic argument requires three conditions which are necessary for the efficient and effective
wealth maximising property regime. The first of these conditions rules that owners of property ought
to have an exclusivity of ownership, which is protected by law, individuals do effectively own their
body and any parts connected to it.
xxxvii
The second condition states that the rights to my ownership
must be a legally transferable right either in sum or part, considered to further the objective of
efficiency; transferability allows acquisition by the person most capable of putting that property to
good use.
xxxviii
Issues of transferring ownership of body parts clearly raise ethical considerations in
relation to exploitation and the abuse of powers. The third rule outlines that given the objectives of
the maximisation of wealth and the fact that private property with the characteristics of untrammelled
rights to exclude and alienate furthers efficient use, the more private property, the more efficiency
and, consequently, the greater increase in wealth.
xxxix

The economic argument suggests that all things should be privately owned, with the exception of
things so plentiful that if they were commonly owned they would not be infringing or jeopardising on
the rights of others, examples mentioned include sunshine and air.
xl


The third philosophical justification for property rights, the utilitarian argument serves as perhaps the
most convincing of all justifications for property rights to human body parts. Derived from Jeremy
Bentham, utility was determined through a calculus of pleasure over pain, this process of computation
was influenced by the ability of a society to promote equality, security, sustenance and abundance.
xli

The concept of utility is based upon the principle which

Approves or disapproves of every action whatsoever, according to the tendency which it
appears to have to augment or diminish the happiness of the part whos interest is in
question: or in other words to promote or to oppose that happiness.
xlii


When considering its application in regards to human body parts the utilitarian argument seeks to
promote the agenda that under private property, it is said, the resources will be more wisely used, or
used to satisfy a wider (and perhaps more varied) set of wants than under any alternative system, so
that the overall enjoyment that humans derive from a given stock of resources will be increased. In
this case human body parts will be more accessible to those who need them. Benthams point breaks
through when considering a dead person whose limbs are capable of being transplanted and used by
another person. Benthams rule dictates actions should be justified in relation to their greater good to
society. Clearly by that person being given the limb, they are able to make use of it in comparison to
the deceased persons, whereby giving a greater good to society, and can therefore be justified.
Individual ownership should prevail if this produces optimal happiness.
xliii
Issues with the utilitarian
argument are the vagueness of the formula for measuring pleasure over pain which reflects the
overall weakness of utilitarian thought as a basis for explaining why we have systems of private
property.
xliv


Whether human body parts should be considered as property capable of being transferred or sold is
clearly a contentious issue which raises many ethical dilemmas. Philosophers have attempted to
structure theories and justifications relating to private property and the reasons why it is necessary,
which helps us shed much light on whether human body parts should also be considered as private
property. Each justification has advantageous possibilities but also problems with application and
regulation. By analysing first, the concept of property and its articulation by courts, each justification
5
can be evaluated in order to reach a well informed decision regarding the arguments for and against
the recognition of property rights in human body parts.



i
C.B Macpherson, The Meaning of Property in C.B. Macpherson, ed., Property: Mainstream and Critical Positions (1978)
1.
ii
J Gray, B Edgeworth, N Foster & S Grattan, Property Law in New South Wales (2
nd
ed 2007) 3.
iii
Ibid.
iv
Ibid 2.
v
Ibid 5.
vi
Jeremy Waldron, Property (2004) Stamford Encyclopaedia of Philosophy, http://plato.stanford.edu/entries/property at 25-
03-08. .
vii
Ibid.
viii
Ibid.
ix
Neli Nanovska, Hegels Concept of Property (2002) Ethical Politics, http://www.ethicalpolitics.org/seminars/neli.htm at
22-03-08.
x
Ibid.
xi
Ibid.
xii
Rohan Hardcastle., Law and the Human Body: Property Rights, Ownership and Control (2007), Google Books,
http://books.google.com.au/books?id=QhVRo8b5lnwC at 22-03-08.
xiii
Alexander George, Property in the Human Body & Its parts Reflections on Self Determination in Liberal Society (2001),
European University Institute, www.iue.it/PUB/law01-08.pdf at 22-03-08.
xiv
Ibid 2.
xv
Moore v Regents of the University of California et al., 271 Cal Reptr. 146 (S.C 1990).
xvi
Rohan Hardcastle., Law And the Human Body: Property Rights, Ownership And Control (2007), Google Books,
http://books.google.com.au/books?id=QhVRo8b5lnwC at 22-03-08.
xvii
Ibid.
xviii
J Gray, B Edgeworth, N Foster & S Grattan, Property Law in New South Wales (2
nd
ed 2007) 10.
xix
Ibid 13.
xx
Ibid 12.
xxi
B. Ziff, principles of Property law (2
nd
ed 1996)28.
xxii
Ibid.
xxiii
J Gray, B Edgeworth, N Foster & S Grattan, Property Law in New South Wales (2
nd
ed 2007) 10
xxiv
Ibid.
xxv
Ibid 11.
xxvi
Ibid.
xxvii
Ibid 18.
xxviii
Ibid 23
xxix
Alexander George, Property in the Human Body & Its parts Reflections on Self Determination in Liberal Society (2001),
European University Institute, www.iue.it/PUB/law01-08.pdf at 22-03-08.
xxx
Doodeward v Spence 91908) 6 CLR 406 at 414.
xxxi
.Ibid.
xxxii
Ibid.
xxxiii
Alexander George, Property in the Human Body & Its parts Reflections on Self Determination in Liberal Society
(2001), European University Institute, www.iue.it/PUB/law01-08.pdf at 22-03-08.
xxxiv
Doodeward v Spence 91908) 6 CLR 406 at 414.
xxxv
J Gray, B Edgeworth, N Foster & S Grattan, Property Law in New South Wales (2
nd
ed 2007) 14.
xxxvi
Ibid.
xxxvii
Ibid.
xxxviii
Ibid.
xxxix
Ibid 15.
xl
Ibid 20.
xli
B. Ziff, principles of Property law (2
nd
ed 1996)28.
xlii
Ibid.
xliii
Ibid 21
xliv
Ibid 22.
6










Bibliography

1. Waldron, Jeremy, Property (2004) Stamford Encyclopaedia of Philosophy,
http://plato.stanford.edu/entries/property at 25-03-08
2. Nanovska, Neli, Hegels Concept of Property (2002) Ethical Politics,
http://www.ethicalpolitics.org/seminars/neli.htm at 22-03-08
3. Hardcastle, Rohan, Law and the Human Body: Property Rights, Ownership and Control
(2007), Google Books, http://books.google.com.au/books?id=QhVRo8b5lnwC at 22-03-08
4. George, Alexander ,Property in the Human Body & Its parts Reflections on Self Determination
in Liberal Society (2001), European University Institute, www.iue.it/PUB/law01-08.pdf at 22-03-
08
5. Moore v Regents of the University of California et al., 271 Cal Reptr. 146 (S.C 1990)
6. Doodeward v Spence 91908) 6 CLR 406
7. Ziff, B, principles of Property law (2
nd
ed 1996)
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nd
ed
2007)