Philosophy, Personality and Property

Philosophy, Personality and Property

DOI: 10.4018/978-1-61520-795-4.ch004
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What is a body, a matter of law? (Rao, 2007; Scott, 1981). Where is the body? Is it integral or severable from the legal person? Is it a commodity? Have our bodies, our selves, and our labour become commodities with a market exchange value? (Radin, 1996). The bioscientific conversion of the body into information has become labelled postmodern. Jean Baudrillard described this postmodernity as ‘hyperreality’. (Poster, 1999). This means that only the viewer only acknowledges the real in its image – reality, as the hyperreal, is “always already reproduced”. (Id.). The process of conversion of the body, the human organism, into genetic information is just such a reproduction. Just as the process of conversion of the personality into reputational information is also such a reproduction. This means that the body need no longer exist only as a corporeal reality, but also as the ‘mirroring’ body, quite literally ‘a body of information.’ (Halewood, 2008)
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Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases. – Jeremy Bentham

[T]o be a full individual in liberal society, one must be an appropriator, defined by what one owns, including oneself as a possession, not depending on others, free. – O’Donovan, 1997


A. Ownership Of Persons

Similar to most social institutions, property rights are justified by the benefits they bring to individuals in society. The overriding understanding of this justification for all types of property has been an economic formula. Property rights are the most effective method to produce social wealth. (Hughes, 1998). This same general justification has given rise to theories regarding the non-economic benefits of property. Add to this idea that persons are now all free and equal is supposed to be fundamental to modem liberal legal systems - the free person is not only the basic legal unit but also the very raison d’etre of our law. (Davies & Naffine, 2001). We do not recognise slavery; one person cannot own another. It is regarded as an abomination to commodify another human being in this manner. This was seen most clearly in the case of Moore v Regents of the University of California 793 P2d 479 (Cal. S. Ct. 1990).

The Western democracies outlawed slavery in the nineteenth century, though as Russell Scott (1981) has observed, it has “not all disappeared from the Eastern world or from the African and South American continents.” Although English law never openly tolerated slavery, England was home to a number of slavers who derived immense wealth from the traffic in persons. English slavers, however, wisely conducted their trade in other parts of the world. (Baker, 1990). In the famous Sommersett’s Case of 1772, English law decided against slavery, proclaiming its allegiance to the Enlightenment person and promising a protection for freedom. It was concluded that there was no “positive, or legislative, authorisation of slavery in England.” This point of view accords with the views of two of the leading philosophers of political and legal liberty, Immanuel Kant and John Locke, who, in different ways, both condemned the idea of treating other persons as property. Hegel (1952, trans. by Knox) went on to develop a theory of property linked to self-ownership.

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