Merrill states that the right to exclude others from intrusion is one of the “most essential sticks in the bundle of rights that are commonly characterized as property”. It is not one right, but comprises multiple rights. For example, with respect to property rights, the right to exclude is subject to a large extent on whether an issue of intrusion is subject to common law of nuisance or trespass (Merrill, 1985). Merrill argues that this right is the very defining thing of property rights (Fraley, 2018). Common law stipulates property as essentially negative, which is the right to exclude others from interfering with the possession of the property. This right may be absolute and also may impose a positive obligation on other parties. In common law, property is not the things, but the rights on them. However, this right cannot be applied to other things, for instance real remedies, such as the right to be put back in possession (Matthews, 1995). Civil and criminal law provides protection to owner of real and personal property. Real property and personal property theft offenses are protected under criminal law. There is civil law protection for real property and personal property. All these protections support the right to exclude, though the specific degree of protection and rational differ (Merrill and Smith, 2010).
The right to exclude may offer specific degree of proportion and define the characteristics of property. However, it may not be the defining element of a property. It is subject to certain exception. The element of necessity, for example the right of a ship in peril to dock against the owner’s will, may override the right. In such circumstances, the remedy of protection rule protection like injunction or punitive damages for violation of the owner’s right is reduced to liability rule protection, like compensatory damages. The element of necessity may be argued to be a narrow concept and may cover both dire and less dire situations, which may lead to bypassing consensual transactions. Custom may also limit the right to exclude. The customary mercantile law, such as the “time out of mind” may override the right to exclude (Merrill and Smith, 2010).
The right to exclude offers protection of owners as well as benefits to them. For example, the owner of intellectual property provides her the ability to profit from her invention of new technology through personal exploitation, without the need to compete with others who did not invest anything. IPRs has similar characteristics like tangible property in that they give the owner the right to exclude others from use or access to the property (Altvater and Kazimiera Prunskienė 1998). In terms of market conditions, market failure may arguably come about when property rights cannot be clearly defined. The failure may be due to failure to transfer rights, which is when others cannot be excluded from using the goods or there is failure to protect the right to use the goods. (Hanley, Shogren and White, 2013).
The concept of property is a conceptual system of rules governing the “access to and control of material resources” (Waldron, 1985). Applying this concept to the right of owner to exclude others, it means that that the right is subject to a set of rules. For instance, exclusion of others is subject to the nature of property rights. For example, under the existing legal or social norm, a lake possesses a non-exclusivity feature and the users of the lake cannot exclude a farmer from dumping pollutants into the lake. The degree of exclusion that could be exercised by the users is therefore subject to the nature of property rights. The lack of definition of property right to the lake signifies that there is a lack of the right to exclude the farmers (Free, 2010). The concept of property provides for non-interference with owner’s dealings of his property and his freedom to dispose of the property (Njoya, 2007). According to Stakeholder theory, the property should be used for benefits of the stakeholder (Njoya, 2007). Accordingly, it is not only the definition of the property right that is required, but also that of the stakeholders. Moreover, the right to exclude imposes a duty on the others to know the reason why they need to accept the exclusion. In other words, there should be factors that justify the exercise of the right to exclude. It may not be sufficient to just show that existence of the private property in nature. It may only be justifiable when interests of all the concerned parties are given serious consideration. However, it may be easier for the parties with greater power and authority to justify their exercise of the right than those parties who are least well off. The former party functions on the aggregated concept of interests that may easily ignore the interest of the latter party, although the latter party can reject the right as their legitimate interests are not met (O'Neill and Williamson, 2012). As such, the right to exclude cannot be the very definition of property.
According to Merrill, if the right to exclude is denied, the person does not have the property. There is a focus on non-interference. The right to exclude is limited in nature if others are imposed a duty to not deliberately or carelessly interfere with the property. Determination of property rights through the right to exclude and duty of non-interferences have been followed in many cases (Quigley, 2018). For example, it is found in the case of Fouldes v Willoughby (1946) where it was held that a “simple asportation [movement] of a chattel” could be treated as trespass. Similarly, in the case of Kirk v Gregory (1876) it was held that moving pieces of jewellery from a room to a cupboard in another room for safe keeping is treated as trespass. However, Anna di Robilant argued that the right to exclude does not consider the fact that doctrines of property are largely varied and more complex than just securing assets through the use of bright-line trespass rules. Exclusion or Non-interference is not and cannot be the entire story in respect to definition of property (Quigley, 2018). The bundle of rights in property should be to promote “equality of autonomy”. This advances the assertion of plural right that could combat sovereign powers of the owners, especially with more power and authority as discussed earlier, while maintaining the paradigm associated with the property (Hardt and Negri, 2017). Thus, there is more to property than simply stating that property amount to right to exclude.
In respect to protection of one’s property, possession alone may not be sufficient to secure exclusivity. The owner must have the right to exclude others from exploiting the property in order to protect the right in the property (Carvalho, 2008). However, there may be practical reason that bars the exercise of this right. For example, in an economic set up with high transaction costs, owners may not be able to exercise the right to exclude others due to high transaction costs. Such cost may be the cost of collecting information, data, entering into an agreement, etc. This is despite the fact that the rights of the owners are defined and they have the ability to appropriate full benefit and also the right to exclude (Free, 2010). Determining the sufficiency of the right to exclude in respect to defining property in respect to landlord-tenant relation, the right of the landlord to exclude is undoubted. However, the policy is subject to questions. It is not the policy around the right that matters more. It is the legality and the fairness of the relevant bargain, which is the question in hand (The Farmer's Magazine, 1809). This statement reflects the earlier discussion about the nature of property rights, the element of necessity, or the debate between powerful party and least well off party, which all reflect legality and the fairness of the relevant bargain.
The right to exclude is enforced by the state. This will enables people to protect their right of private property, which encourages and creates conditions that allow economies to function. The right to exclude is given to ensure owners’ basic interests are met. It is justified through the duties of the owners to respect the limits of enforcement (O’Neill and Williamson, 2012). However, against the backdrop of a powerful sovereign party, like a state, private property may be regarded as a social function or a duty and not only as a right. If the private property forms the basis for economic structure, it may be subject to the interference to the powerful party, in this case the State, through practices such as general welfare policies or taxation. If circumstance demands in this direction, any right to private property may be excluded from entitlements (Moyn, 2018). The same may hold true in case of a party with more authority or power, which may inappropriately define specific degree of protection and rational and impose on the other party. Accordingly, this right is the very “defining thing of property”, but in fact does not do so every time.
The concept of property is a conceptual system of rules governing the “access to and control of material resources” (Waldron, 1985). This abstract idea of an object is expressed by ownership as correlated with an individual. Accordingly, society will uphold the individual’s decision as being final in respect to disputes around what should be done with that object (Waldron, 1985). Property comprises the right to exclusive physical or permissible control of the object and right to use and transmissibility (Waldron, 1985). However, (Wegner 1988) states that if there is difficulty in using or transferring, it would be difficult to the object as a property.
Possession majorly contributes to and reflects one’s identity (Belk, 1998). A person can make property claim in respect to right to use, manage or keep others out of the property. Such claims are always link the person to others and are possible by putting others under some kind of corresponding liability or obligations (Belk, 1998). Some argue that the concept of property and its features serve the weak and the powerful, and claiming property in the body acts as the most effective mode to secure rights of the people who are more marginal (Phillips 2013). This argument has specific reference to the case of Moore v the Regents of the University of California (1988) where the patient’s blood cells were used to make a highly profitable cell line and the patient was left in total ignorance of what was done with his blood cells. There are many ways formulated by the legal systems where a person exercise control over his or her body and exclude others, for example, in criminal law such as Offences Against the Person Act 1861 or Criminal Justice Act 1988, in medical law, such as Mental Health Act 1983 (MHA 1983) and Mental Capacity Act 2005 that respect patient rights associated with treatment, human rights law such as Human Rights Act 1998 prohibiting torture, or debate around euthanasia such as the case of An NHS Trust and others (Respondents) (2018). The laws and arguments above present an argument that nobody can access a person’s body without his or her consent. This adheres to the principle of ownership that provides for the right to exclude other, as discussed above.
Self-ownership argument for owning separated bodily parts has three steps. Firstly, if a person is not a slave, nobody owns his body. Secondly, therefore, he must own his own body and each and every part of it. Thirdly, therefore, if any part of his body is separated from him, he continues to own the separate bodily part. The move from step two to step three constitutes a spectacular no sequitur. No-one owns the person (Harris, 1996). C.B. Macpherson holds the view that person is the proprietor of his own person and capacities. They do not owe anything to the society. They cannot alienate their whole property in the person, but might alienate their capacity to labour (Macpherson, 1963). This reflects a “possessive quality” of human, which is also shown in the classical liberalism theory that a person is a transcendental self free from nature as well as irrational constraints of tradition. They have freedom to construct a new order (Elshtain, 1984). The ownership of own body by a person is also captured in John Locke statement that they possesses the property in their own person. They themselves possess this right and own the labour of their body and also the work of their hands. This, however, does not mean that they own the physical bodies. It is only the action and resources or wealth produced by their action. Consequently, a person owns the property in the persons (Dickenson, 2017). This concept of legal personhood comprises a cluster of property, in the form of rights and duties regarding a specific relationship (Kurki 2019). The question of whether a person is a property or not is based on what could be done to the person in respect to legal rights and duties that person might possess (Lemos, 2017). For proper development of self or to be a person, the person should exercise some control over external resources. This need of control takes the form of property rights. The personhood perspective may help in determining connection between property and privacy or liberty. It may also be relevant in elaborating aspects of property entitlement schemes, or morality in property disputes (Radin, 1982).
The concept of owning the body envisages two distinct entities. Firstly, it is ‘me’, the owner, who is a psychological being. The psychological well-being of the person requires him to become the property-owner. There are scepticisms about ownership. One source is psychological reductionism. It is an illusion that a person owns things (Harris, 1996). The scepticism of totality ownership, which is based on the misguided notion that a person who owns a thing if totally free to do what he please with the thing. This totality does not exist at all as there is always a universal property-independent prohibition on the uses. Secondly, it is ‘my body’, which is a physical thing the owner owns, as described in the self-ownership argument (Harris, 1996). This is a dualist approach and it does not conform to the thesis that body is not a distinct thing, but forms inseparable part of the whole self (Miriam, 2014).
Law does not currently recognise humans as owners of their bodies. There are legal and ethical concerns. According to the concept of metaphysical ownership, a person is intimately related to his body. If legal ownership of the property is introduced, the person has rights to dispose of his own body in the way he desired and no restrictions are imposed. Property law, if applicable, will enable the person to transfer his title to the property, that is the body. This right is, however, restricted if the property has aesthetic value. Right to disposal could be denied. So, in so far as the disposal does not threaten the integrity of the body, the right should be permitted. A person may have permitted right over her body, such as the right to privacy, right to free speech, which cannot be transferred (Have and Welie, 2013). The concept of permitted rights is reflected in the Stakeholder theory that stipulates that property should be used for the benefits of the stakeholder, and therefore, the owner cannot divest the body to his own choices (Njoya, 2007).
Property right involves the exercise of control by the owner over a thing. It also defines the borders of the control and highlight the degree of social and legal power. According to Naffine, concept of ownership of body and self are based on perceptions of men of being in control of their own bodies, and their ability to exclude others. This is different in the way women look at the idea of their bodies. Women experience their bodies as being penetrable, accessible to others and accommodating. The society may not be able to conform to the idea of women having the kind of control and exclusion, which is usually associated with ownership (Naffine 2002). If the law has to treat the body as a property, it should be able to do justice to both the perception of men and women of the body and its control; otherwise, it might lead to legal, moral and social dilemma.
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The Separability thesis argues that if a thing is capable of being owner, it should be sufficiently separable from the self (Penner, 1997). This goes against the concept of self-ownership where the human and the body and self are intimately connected. Property rights are based on the concept of transferability (Penner, 1997). Reiterating John Locke, a person possesses the property in his own person and does not own the physical bodies. It is only the action and resources or wealth produced by their action (Dickenson, 2017). Law cannot in any way treat the living body as a property. The living body is not sufficiently separate from his self to count as ‘personal property’ (Radin, 1982). Does the idea of law treating the living body as a property includes owning both ‘me’ the psychological being and ‘my body’, the physical thing? The argument so far on the inability of the law to treat the body as property is acknowledgeable in case of the former, and may be certainly not in case of the latter. The former may be applicable to the limited ownership proposition mentioned earlier. A body is the property of his mind. A body owns nothing and is subject to dominion (Spooner, 1855). Intellectual property is the mind, which could exercise limited right. It is a product of the mind, which could be disposed of in the manner allowed by law. For the law to treat a living body as a property, the human being should be a non-bodily person who possesses various rights and owns his body, and also should be the body he owns. Legally, ‘non-bodily person’ is non-conceivable and a person without a body cannot own a property (Have and Welie, 2013).
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