Document Type

Working Paper

Publication Date

3-11-2012

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Social Insurance Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Private Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

Abstract

This article posits that a "law of the body" is overdue In the absence of clarity about the legal status of the human body courts have constructed a collection of circumstantiallydefined categories for resolving question of human body ownership and use This patchwork approach is awkward unwieldy incoherent and by many lights ultimately unjust Many able minds have been applied to critiquing the distributive consequences of a regime in which we cannot "“ at any point in our lives "“ "own" our own bodies or its constituent parts but other people can and do But what has been missing from these conversations is a conceptual foundation for understanding the living human body as property This article supplies that piece of this byzantine puzzle Specifically the thesis presented here holds that by employing a property framework to understanding the legal status of the human body we can explain with coherence and consilience our existing legal commitments concerning the treatment of the human body Moreover the article addresses the standard objections to explicitly acknowledging the human body as an object of property and demonstrates that these objections are predicated on a series of misunderstandings These misunderstandings generally fall into three categories misunderstandings about the nature of "property" conceptual misunderstandings about bodies and selves and the capacity to own oneself and misunderstandings about the necessary consequences of adopting a property framework with respect to the human body Once these misapprehensions are clarified the intellectual path will be cleared for a "law of the body" to emerge and legislators courts and scholars can begin the important work of shaping it into a doctrine that is consistent with our normative ends

Download

Share

COinS