The concept of property is one that is problematic in nature, and one that had been subject to substantial definition (and re-definition) over a significant period of time. It can relate to real estate, personal belongings, and the environment and even to our own person. As with any law, the extension of these principles depends on the underlying principles and ideologies of the author of body. For example, a popular legal theorist named John Locke once put forward the claim that “every man has property in his own person”. This could be held to interpret that, regardless of one’s socio-economic class or status, a person always has a right to the property within his or her own person. But in order to clarify and appraise such a claim, it is important to have a basic understanding of the principles of property law surrounding it. In general terms, the law of property deals with “our legally recognised relationships we have with each other in respect of things”. In other words, property law deals with our interests in particular things in the environment, and affords us certain ownership rights over these things where these interests are recognised by the law as being reasonable. We can have legal rights in property, which are instantly and expressly recognised by the law, but we can also have equitable interests in property, which may not be directly expressed by the law, but may be implied from common law or through our conduct. This brief sets out to explore the claim put by John Locke in regards to a person having the right to property within their own person, and seeks to identify whether such a relationship between a person and, effectively, themselves is recognised at law. It will also seek to identify ways that the law in this area could be improved, if any exist, while also analysing the currently existing statutory and common law principles that govern this field of law.
Perhaps the most celebrated, and relevant case to this field of law was the California case of Moore v Regents of the University of California, 51 Cal 3d 120; 793 P 2d 479 (1990). This decision revolved around a tissue sample taken from a patient during the ordinary course of treatment for a disease that the plaintiff was suffering from. This tissue sample was later used in relation to research that was not considered to be “any relation to [Moore’s] medical… care”. The principles considered by this case include the right of a patient to exercise control over his or her body in relation to medical treatment, the principle of informed consent, and the treating doctor’s fiduciary duty to disclose all information related to the treatment. In other words, the law recognises that a person has a right to exercise control over his or her body, thus recognising the interests of a person in the property of their own person. In this sense, it would appear that the claim of John Locke is justified, given that (in the California and United States jurisdictions at least) the right of a person to the property of their own body is recognised. While this is limited in its direct applicability in other jurisdictions, it provides for a useful guidance in this area where statutory or common law are silent or fragmented on this issue. In general terms, it is accepted that a person’s body parts cannot be ownerless property, in the sense that the person from whom that property was taken can be said to have an interest in that property, and any proceeds derived from it, as we see in the Moore case. The principles of this case are similar to those in the English case of R v Kelly  QB 621, which will be considered in more detail in due course. In the Moore case it was the opinion of the court that “a physician who treats a patient in whom he also has a research interest has conflicting loyalties”. Essentially, this could be taken to mean that a physician in such a situation will obviously have a view to profit from the research data that could be compiled from that tissue samples collected if he or she could sell their product to a pharmaceutical company, for example. In other words the physician would profit from the use of property that was not expressly transferred to him or her by way of direct consent from the patient, given that this information was not supplied to the patient at the time the sample was taken. This would mean that the doctor would be somewhat limited in his or her ability to deal with that property, given that there is not a legally recognisable interest in the property held by the doctor. As one can see, this area of law touches upon the founding and fundamental principles of property law, dealing with legal and equitable interests, and with property. It is, therefore, of paramount importance to have a sound grounding in these principles before attempting to dissect and analyse a problem from this area of property law. The Moore case was groundbreaking in this field, and assisted many jurisdictions in addressing problems of a similar nature.
The case most relevant in that Commonwealth jurisdiction would be the case of R v Kelly  QB 621, which deals with theft of property. In this case, the property in question was made up of approximately 35 to 40 human body parts from deceased persons, which were used by the appellants for the purposes of creating works of art with a possible view to profit. The court held that, in general terms, a corpse (or part thereof) cannot be stolen if there is no need for it to be preserved in some form. In other words, if the deceased person did not request for their remains to be dealt with in any form after their death, then it could not be deemed to fall within the definition under section 4(1) of the Theft Act 1968. In other words their “mere existence” does not make them property. However, the appeal court in this case applied common law exception tests to these circumstances, and thus found that the appellants had committed theft of property under the statutory law. This exception was set by common law precedents that stated that where a person’s remains have been preserved for the purposes of teaching or education, or where a person has applied their skill (e.g. a preservation technique) and thus attempted to preserve them as property. This is perhaps synonymous with the fact that a corpse is not recognised as property in itself, however if this corpse was stolen from a grave then this would be seen as theft, given there is a clear intention for the grave and its contents to be preserved. In other words, English law recognises that a person has an interest in the way their body parts are dealt with posthumously, provided that there was clear intention for such wishes to be carried out prior to that person passing away. Additionally, a person dealing with the remains must also show clear intent of preserving those remains for the purposes of those wishes, such as for teaching and research purposes. Relating this back to Lockean theory, it would appear again that law recognises that “every man has property in his own person”. The only difference between the decision in California and the UK case is that R v Kelly deals with the interests in the property after a person’s death, thus extending the principles that were created by the courts in the Moore case. The R v Kelly case also effectively recognises that someone’s interests in the property of their person effectively ceases upon their death, unless they have made arrangements to transfer those interests to another person for preservation purposes. Therefore, if a person manages to gain possession of an ‘ownerless’ corpse or body parts, and they choose to apply their skill, then they can deal with those parts as though the property was their own. The appeal court in R v Kelly decided that the appellants had in fact stolen property from the Royal College of Surgeons, as there was clearly an intention to preserve these parts for the purposes of teaching and application of skill, and thus a violation had occurred under the Theft Act 1968. Essentially, the Lockean theory appears to exist in the UK jurisdiction and is visibly enforceable at common law, through expansion upon the statutory Theft Act 1968 in this case. The law continues to recognise a person’s interest in their own body, but also recognises that (as in all property law) their interests in the property can be transferred or disposed in accordance with various common law provisions.
In summary, it would appear that the theory of John Locke can be justified by legal provisions in more than one jurisdiction. The claim that “every man has property in his own person” is clearly existent in the United States through the case of Moore v Regents of the University of California, 51 Cal 3d 120 (1990), while the UK and Commonwealth can rely upon the decision of R v Kelly  QB 621 (Rose LJ) for further clarification. While both of these cases are significant, it would appear that they are merely an interpretation and consolidation of their respective precedents. In other words, there was already law in place on the issue, and these cases just served to further enhance the law and make it more applicable to this field. It has been argued that it would be difficult to implement a universal law that made the human body ‘ownerless’ in all circumstances, as there would always be social, economic or political desires that would influence the way a person dealt with their property (e.g. a person may react differently with family members than they would with, say, a work colleague or stranger). This field of property law clearly calls upon the application of fundamental property law principles in order to reach a justifiable conclusion. In other words, a person may have an interest in their bodily property, but may choose to assign that interest to another person (either during their lifetime or beyond), may withhold access to that property or may even have their interests terminated by death. However there is no disputing the fact that bodily property is recognised by the law in some form, and that a person is free to deal with that property as they are with any other form of property, tangible or otherwise. Whether or not this is due to the effect that John Locke’s works have had on jurisprudence remains to be seen, however a person’s interests (and not their rights, as in human rights) to their bodily property are clearly evident and enforceable at law, thus qualifying John Locke’s theory.
- Clarke, A, and Kohler, P, Property Law Commentary and Materials (2005), London: Cambridge
- Theft Act 1968 (UK)
- Cobbs v Grant, 8 Cal 3d 229 (1972)
- Dobson v North Tyneside Health Authority  WLR 596
- Doodeward v Spence (1908) 6 CLR 406
- Moore v Regents of the University of California, 51 Cal 3d 120 (1990)
- R v Kelly  QB 621
- Reg. v Sharpe (1857) Dears. & B 160
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