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• Personhood
Another strand of theorizing justifies property in terms of personhood. Human actors act on the world and exercise dominion over external things, and in so doing they constitute themselves as individuals. This is an idea tracing back at least to Hegel,11 and is the springboard for the theory of property developed in the early work of Margaret Jane Radin.12 According to Radin, property that contributes to personhood is deserving of more protection than “fungible” property. Thus, a wedding ring on the hand of a loving spouse is personhood property, whereas a ring in the inventory of a storeowner is fungible property. The loss is far more of a personal wound in the former than the latter case. Of course operating a store can be the expression of individual personhood, and Radin would not necessarily disagree. But Radin sees danger in “fetishizing” things, and takes a dim view of the personhood and property claims of capitalists in particular. Although certain features of law such as the homestead exemption in bankruptcy can be regarded as reflecting a version of personhood concerns, in U.S. law personhood issues come to the fore primarily in placing constraints on what can be treated as property.
The personhood perspective suggests that even if conditions identified by the Demsetz theory are fully satisfied, there are reasons of social policy for refusing to regard certain kinds of resources as property. We can distinguish two types of social policy constraints grounded in personhood concerns. Strong personhood constraints counsel against treating persons themselves as property. Weak personhood constraints counsel against treating certain things closely identified with persons as property for some purposes such as permitting commercial sales.
11.G. W. F. Hegel, Elements of the Philosophy of Right (Allen W. Wood, ed.; H.B. Nisbet, transl. 1991) (1821).
12.Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957 (1982).
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Human slavery provides the clearest example of the strong personhood constraint. Throughout much of human history, ownership of one person as property by another was permitted. Today this is universally regarded as a violation of basic human rights. The ban on slavery reflects the principle that all human beings, without regard to race or nationality, should be regarded as autonomous moral agents rather than objects controlled by other persons. The principle is so strong we forbid individuals to contract into a state of slavery or servitude. Various explanations have been given for this, including paternalism (we do not trust people to make an informedchoiceaboutthis),externalcosts(othersmaybe anguished by seeing slaves), and the immorality of slavery in all its forms however it arises. Whatever the explanation, it represents a baseline principle about property rights: People can be owners of things but cannot be objects of ownership.
The strong personhood constraint is also reflected in modern conceptions about relations among members of families. At one time, and still today in some places, parent-child and spousal relations were conceived of in a property-like fashion. Parents had absolute control over the children, as husbands did over their wives. Today, parent-child and husband-wife relations are governed by legal norms of family law different from those that apply to property ownership. Like the rule against slavery, these norms are designed to protect the basic understanding that all persons are autonomous moral agents, not simply objects owned by others.
When we move beyond the core case of one person owning another, we are much more likely to encounter weak personhood constraints.13 Consider in this regard the many vexing questions about the legal status of human body parts, bodily fluids, and
13.Weak personhood constraints are often expressed in terms of the danger of “commodification” of personhood interests. For discussion and applications in a variety of contexts, including trade in sex, children, and body parts, see Margaret Jane Radin, Contested Commodities (1996); Rethinking Commodification (Martha M. Ertman & Joan C. Williams eds., 2005).
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genetic material. The most widely discussed case here is Moore v. Regents of California,14 which is often cited for the proposition that human body parts are not property. Moore was being treated for leukemia at UCLA Medical Center. Physicians removed cells from his spleen and, without informing him, used these cells to develop a new cell line for which the medical center obtained a patent. The new cell line was thought to have potentially valuable commercial applications. Moore sued the physicians and UCLA, seeking damages for conversion of his spleen cells. The California Supreme Court held that Moore’s complaint stated a cause of action for breaching a fiduciary duty and failing to obtain his informed consent for the medical treatment (by concealing the plans for commercial use of the spleen cells). But the court found he had no action for conversion, because he did not have any “property” interest in his spleen cells.
There are many puzzling aspects of the Moore case, including the court’s apparent assumption that although Moore had no property rights in his spleen cells, UCLA did have such rights in the cells after they were removed. In general, the court seemed worried about imposing unexpected liability on downstream medical researchers who had previously used body tissue or cells for research without inquiring whether they had the right to do so. The court also noted that commercial sales of organs and bodily fluids for purposes of treatment and transplantation are prohibited by the Uniform Anatomical Gifts Act. The court thought it best to await legislative action before treating body cells as the property of the person from whom they are drawn.
Another puzzle is whether the court in fact succeeded in denying Moore a property right in his spleen cells. If property crucially involves the right to exclude, then in a sense the California Supreme Court did give Moore the right to exclude, because once the doctors provided him with complete information about the possible
14. 793 P.2d 479 (Cal. 1990).
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commercial use of the cells, he could always refuse to consent to the surgery. The right to give informed consent assumes the right to say no, which is functionally the right to exclude the doctors from getting their hands on the cells. Of course, this right to exclude would apply only to Moore’s treating physicians; it would not impose any duty on downstream researchers or persons using any medical products developed with Moore’s spleen cells. The right recognized by the court was in personam, not in rem. So maybe the court did succeed in denying Moore a full-fledged property right after all.
A narrower characterization of the court’s holding would be that Moore could not sell his spleen cells in a commercial transaction, and hence could not recover damages based on the market value of the cells. So construed, the decision reflects a concern about permitting commercial transactions in human body parts. This concern can usually be vindicated by eliminating one of the incidents of property—the right to sell. It is not necessary to deny other incidents of property, such as the right to exclude, to use, or to gift. Indeed, nothing in the court’s decision suggests that Moore could not make a gift of his spleen cells for medical research, or could not refuse to permit them to be used for any purpose after they were removed. On this reading as well, then, the court was overstating things in saying that Moore had no property in his spleen cells.
More recent decisions tend to confirm a narrow reading of Moore. In one case, the Ninth Circuit held that the next of kin have a sufficient property right in the body of a deceased relative to demand a due process hearing before body parts are removed by the coroner for transplantation.15 Another California case held that frozen sperm cells are the property of the estate of a deceased person, subject to disposition by a probate court.16 The general pattern seems to suggest that the person from whom body parts or fluids are removed has the right to direct or veto how these resources
15.Newman v. Sathyavaglswaran, 287 F.3d 786 (9th Cir. 2002).
16.Hecht v. Superior Court, 20 Cal. Rptr. 2d 275 (Cal. Ct. App. 1993).