Property Ownership Making Sure Your Covered
The notion of self-ownership is generally used to forcefully assert the freedom of the individual with respect to his own body and use. It is mainly philosophers who manipulate this concept by situating it immediately in the context of natural law. This approach of writing a will has a considerable advantage because it allows staying in the philosophical approximation some texts on the subject thus fall under speculation totally cut off from reality. One can easily chain ethereal concepts that will never have any practical significance.
What strikes a lawyer, reading, for example, Murray Rothbard is the total absence of a definition of the right of ownership? Its absolute character, which never really existed in positive law, is considered as a kind of postulate. “The right of self-ownership recognizes the absolute right of every individual, by the mere fact of being a man or a woman, to” possess “his own body; which means being able to control your body freely without coercive interference.”
Such an axiom leads this well-known author among libertarians to consider human rights as a set of property rights and to write this aberration: “The human right to freedom of expression corresponds only to the right to freedom of expression. Rent a conference room to the owners, or to buy such a room yourself. No need to bother to refute such absurdity. It goes without saying that freedom of expression is not limited to the material means necessary to implement it. Above all, it has an intangible, moral dimension.
So it is not useless to leave natural law, by definition very vague, and to examine the positive law and its history when it comes to the property of oneself. The only positive law has deepened the notion of the right of ownership and conferred on it a precise content.
A concept opposed to our legal tradition
The civil law distinguishes between property and legal persons. The right of ownership only concerns the property. When the civil law authorized the right of ownership over a human being, he denied to this being the status of the juridical person. The slave of Roman antiquity was a thing and not a legal person. It was possible to sell or rent it for example. More generally, the whole Western legal tradition has been built on the distinction between object and subject of law. The subject of law is a legal person, physical or moral, never a good.
To swallow the person to the rank of the object of right contravenes all the gains of the legal thought since Roman Antiquity. The concept of property rights applied to a human being is therefore conceivable only in the case of a reification of the person. But this possibility quickly disappeared from the early Middle Ages Christianity no longer allowed to treat a human being a good. Even though their condition was close to that of slaves, serfs were people attached to the estate and not property.
An intellectual approach that applies the notion of property to the human person would run counter to the whole humanistic construction of our law and its ethical foundations. It is therefore inappropriate, and even shocking, to elevate the right of ownership so far as to make it an exportable concept to the rights of individuals. If the right of private property over all kinds of goods (tangible, intangible, movable, immovable, production, consumption, etc.) can be considered in our societies as a freedom, we must reserve to persons a completely different legal status. A human person, called a natural person in law, is part of another logic and another body of law that property.
A property right that is not really a
The right of ownership comprises three elements, traditionally designated in Latin: the uses (right to use the thing), the Fructus (right to collect the fruits, rental income for example) and the abuse (right of use). Alienate destroy). If a person is given the abuse on himself, it means that he can sell himself, give himself and destroy himself. It can certainly be destroyed by suicide but it can neither give itself (legally!) Nor sell to others, that is to say, transfer to another juridical person the right of property that it would have on itself. It would then be reduced to slavery. As a result, the right to property over oneself includes only the uses, the Fructus and an abuse reduced to the right to suicide.
Does the gift of one’s body to science after death be likened to an abuse about oneself, that is, a person? In no case, since after death legal personality disappears and the body becomes a thing. We are therefore in the presence of a gift on a thing according to the will of the legal person deceased.
What about the transfer of ownership of small parts of the human body during the lifetime of the person concerned: donation or sale of blood or organs. In this area, free transactions are still permitted, but some states prohibit transactions for value. The blood donation is related to the Fructus rather than the abuse because the blood is reconstituted. Is organ donation an act of disposing of oneself? It can be discussed from a semantic point of view (oneself?), But obviously, the life of the donor cannot be compromised, the operation must be limited to a non-vital part of the body.
The property of oneself thus seems very incomplete with respect to the right of ownership carrying a good. It is rather a usufruct than a property right. But does one really have the usufruct of oneself? In this case, everyone would have the possibility to transfer this usufruct to others. But, of course, this does not exist and we can in vain search for examples of contracts having such an object. History itself provides no example.
Let’s go back to the ancient Romans. They actually knew the usufruct applied to a human being, but they were slaves, considered as goods. The usufruct of a slave could, therefore, be granted to another, while preserving the bare ownership, but such a contract remained in conformity with the general principles of the civil law. (Civil law) since it concerned a property.
The ambiguity of the notion of property of oneself, never raised by philosophers, comes from the absence of the definition of the object to which it applies. If owning oneself is own one’s own juridical person, there is no example in positive law to illustrate such an assertion. If being a proprietor of oneself consists only of being able to extract small elements of one’s body in order to give them or to sell them, the property of oneself is very limited and the term used totally inadequate.
Real rights and personal rights
The observed reality leads us to think that it is impossible to transfer ownership or usufruct of oneself to others. Why? simply, because these rights do not exist if they are applied to people. There are no real rights over others because they do not exist on oneself. This answer is based on the fundamental distinction between real and personal rights. Our humanistic law treats people and property in a manner so profoundly different than the rights over things ( resin Latin, whence real) are totally distinct rights to another person.
The main real right is the right of ownership. The right of claim is the most widespread of the personal rights: it is for the creditor the right to require from his debtor the performance of an obligation to which he has previously committed himself (obligation to provide a good, d perform a service, pay a sum of money, etc.).
One of the most common contracts, the contract of employment, will illustrate the point. The employment contract is obviously not a usufruct of oneself granted to the employer because it has no real right to the employee. His rights are purely personal and defined by the contract. The employment contract is not even a rental of oneself. It’s just what we called 19 the century renting. The employee’s labor force (physical or intellectual) is placed at the disposal of the employer for a limited period of time, but the rights of the employer only concern the use of this labor force and nothing else.
The whole person of the employee, his private life, his freedom of thought, his civil and political rights, etc., escapes the employer. The employment contract gives the employer a claim on the employee. He may demand from him the performance of a work performance defined by the contract. This contract is therefore profoundly different from a lease of goods (a car, an apartment) because, in this case, the lessee has full control over the use of the property.
He can use it as an owner and sometimes even sublet it (Fructus). The employer, on the contrary, does not acquire the mastery of the person of the employee who, fortunately, remains a free man. Let us note in passing that this is a considerable and historically recent progress. In order to reconcile liberty and dependent work, it was necessary, after leaving ancient slavery, to wait almost fifteen hundred years. This difficult change is an essential achievement of liberalism and humanism.
The conclusion is simple: the pseudo-right of self-ownership has no practical significance since it never allows the transfer of a real right to oneself. It comes from theoretical speculations that have no concrete application.
A fundamental concept: the free individual consent
Every human being is a subject of right, to whatever civilization it belongs. Individual freedom is immanent to the person. Each person has free consent with regard to all his acts and in the first place, obviously, with regard to the disposition of his body. It is therefore useless to resort to the right of property to justify the free disposition of one’s own person by any individual. Individual liberty is legally based on an essential principle which underlies the whole of Western legal theory, at least in private law: the free individual consent.
Each individual can be bound to another by rights and obligations only if he has consented. Consent must be free from error, deception (or fraud) and violence, otherwise, it is considered stale and the commitment has no value. Thus, if an employee enters into an employment contract by misleading the employer on his actual qualifications (fake degrees or false curriculum vitae) the contract is void.
This principle of free individual consent will in the future make it possible to dissociate artificial intelligence and human persons. Artificial intelligence will not be subjects of law, as powerful are their intellectual capacities. Their action must result from the human will. They will have no ability to freely make commitments. Individual free consent is the legal criterion of distinction of the human.
Prostitution is a borderline case that sometimes involves free consent, but is often constrained. Young women recruited by violence or deception by mafia networks are not in a position to give the client individual free consent. They are placed in a situation of quasi-slavery. On the other hand, the consent of the lambda client is free and he is not involved in the vice affecting the consent of the (or the) prostitute. Criminal sanctioning is, therefore, a political and ethical choice that restricts individual freedom. The recent law passed in France on this subject is based on a morality that the state imposes through legitimate violence. It is a kind of demand policy, inexpensive,
Free individual consent and free collective consent
Although the private law is based on free individual consent, the same is not true of public law. Constitutional law and administrative law organize relations between the state and citizens on the basis of the principle of popular or national sovereignty. The election of the rulers justifies, according to the dogma in force, the legitimate violence available to the State to levy taxes, organize the administration or the army, etc. Free consent is here collective: the political majority imposes on the minority its governance. One immediately perceives the axiomatic weakness of this democratic principle: the minority must submit to the majority and, consequently, its freedom is questioned.
It is a compromise to make society and to act collectively in a peaceful way. The political organization of our democratic societies is therefore based on an attack on individual liberty. Such an organization is somehow a necessary evil, which Winston Churchill famously expressed: “Democracy is the worst of regimes except for all the others”.
The domination of the majority is increasingly heavy in developed societies because of the increasing economic and social interventionism of the state. Free collective consent through election now has more weight in the whole social body than free individual consent by the contract. It is undeniably a regression of individual freedom in favor of participation in collective choices through voting. Confusing individual freedom, that is to say, free personal consent, and free participation in the elaboration of collective choices is a constant of socialist thought.
This evolution of our societies must not lead to refuting traditional legal humanism based on free individual consent. Libertarians probably use the concept of self-ownership to try to stem, at least theoretically, the inexorable rise of states. But it is not necessary to resort to this concept to question the invasiveness of free collective consent. It suffices to assert an obviousness that can be seen in the vocabulary: the field of the collective must be limited or one day the freedom of the individual will disappear. But to favor the collective with the aim of pushing back freedom, is this not, in the end, the political project of some?