Devin Ens

“Is the body ownable?”

written for PHIL 227: Introduction to Feminist Philosophy

 

Introduction

The way Jennifer Church approaches the issue of body ownership in “Ownership and the Body”, it sounds as though that we own our bodies is a given fact, and the controversy is over what follows from this and why it is important to have a discussion of this fact. I, however, intend to argue that it is a bad move to allow for the idea of self-ownership (or any sort of ownership of subjects), that it is more likely to perpetuate problems than to solve them to think in this way, and that the belief in the possibility of body/self-ownership is rooted primarily in linguistic ambiguities (“property” vs. “properties”, different senses of “mine”, etc.).

 

Mine

We will begin with the seemingly innocuous assertion, “my body is mine”. [1]This is a truism only if “mine” is not construed as “being that which I own”. I do not own my mother, my boss, or my sneeze. In some cases, “mine” only means that something pertains to me, not that it necessarily belongs to me in the sense in which a product of my labour might. Surely a slave who says, “my master,” is not trying to reverse the relationship (a relationship which is, by my account, illegitimate to begin with).

Now, Church does want to allow, in a sense, for me to be able to own my mother. She certainly would allow my mother, initially, to own me.[2] One can make a claim, by her account, to some degree of ownership of another person based on the extent to which that person has become part of one’s self.[3] Her example for this is the right that one’s close friends and relatives have to make decisions for one who is incapacitated. I do not see how the concern of close ones can be taken as a form of ownership. While we hope that it is our closest friends and family who will look out for us when we are unable to look out for ourselves, in no way are they granted the rights that one would have over property.[4]

I take ownership to include unrestricted private use of an object. Of course my definition excludes the possibility of owning a subject in the first place, but neither will Church allow that, which raises this question (put to me by my bandmate, John, who is an economics major), “Why, if one cannot relinquish ownership of oneself,[5] say that one owns oneself in the first place?”

Church has a few answers to this. The first concerns rights to exchange or lease parts of the body. She feels that applying the concept of ownership to disputes involving prostitution and surrogacy would be very useful.[6] I hold an opposing view: the very problem with these cases is that someone feels that they can and have bought (or leased) a person’s body or body part. If this were the case, it would mean that, when a prostitute walks out on a client because she feels uncomfortable, he has the right to claim, “You are still mine for another forty minutes,” but he has, in fact, no such right. No one can take back what they have sold, but anyone can deny a service they had promised. For practical, legal reasons, we can put consequences in place for those who would walk out on a contract, but whereas an exchange of property is a one time act, the provision of a service is ongoing, and subject to fluctuations of the will.[7] I can quit my job because it demeans me, I can divorce my spouse because I do not love them, I can walk out on a John because he is being rough, but I can not take back the bike I sold my neighbour because I miss it. In the sale of property, all rights are transferred to the new owner, but all cases where the self and/or body is involved, the deal is provisional at best. If we treat these (property and body) the same, we are preparing to regress decades in women’s rights and a century in workers’ rights. e.g. My husband does have the “right of access”[8] if I have leased that part of myself (not just body, but self, for such a relationship permeates all facets of a life, i.e. you are never, while married, not a wife[9]); my boss can keep me as late as s/he wants.

What about selling organs, etc.? I maintain that the body is not alienable, and Church agrees, but refers to it as “inalienable property,”[10] which, to me, is a contradiction. The right and ability to alienate is, in my understanding, a very significant aspect of ownership. The difference between the cases of bodily services and organ selling consists in the fact that the organs for sale have been physically alienated from the body. The body itself is no longer part of the issue. The tissue is at issue. Who owns the gold ring is an entirely different question than that of who owns the land from which the gold was mined.[11]

Use and Identity Theories of Ownership

Before presenting another of Church’s responses to the question of “why own the body?” and, in that section, giving her criteria for when one owns their body, I will treat briefly her treatment of other theories of ownership.

Two stories of how ownership comes to be are given, flaws being found with each, specifically as concerns the body. The first story goes that ownership is acquired through use.[12] Church adequately points out several problems with this: how is “use” to be defined? ; what if I am paralysed? ; etc. For my part, I wish only to add that if use establishes ownership (and if living bodies can be owned), then the dutiful daughter and the concubine are truly both the property of their patriarch.

The passive alternative to the use-based conception of ownership is the idea that one owns what is identical to oneself, and that the body is identical to the self. Church feels that this account makes ownership beyond the body too problematic.[13] I don’t really have a beef with this account. Rather than criticising its consequences for the concept of property, I would say that the only problem with it is that it takes itself to be talking about property in the first place. In fact, what are identical with myself and are inalienable, are not these traits which are my property, but these properties (characteristics) which are mine (pertain to me). This is not a poor account of ownership, rather, it is not an account of ownership at all. Let us not equivocate on “property”. Blondeness is a property of my hair, but my hair does not “own” blondeness. It is blonde. Likewise, someone does not own their identity, someone is their identity. If we are to identify self with body (which I am not proposing we do), we cannot refer to one as “owning” the other. Grammatically stated, property[14] is the direct object of the verbal locution, “to legitimately claim ownership of,” while properties are the attributes of a subject.

Owning Up

Another response that Church gives to the question of why we should call the relationship of self to body one of ownership is that it prods one to “own up to” oneself, that is, to take responsibility for their own desires and actions.[15] This is just so much more wordplay. By her account, one must first be a self to own oneself, and one of the things that comes with owning oneself is acknowledging oneself. It seems to be implied, though, in her discussion, that acknowledging oneself is requisite to being a self:

“A body belongs to a person when and if the psychological states of that body are integrated through reflection in such a way as to constitute a person or a self.”[16] (italics mine)[17]

If this reflection is not a case of self-acknowledgement, I do not understand this passage. If it is, then to be a self is, in part, to accept “one’s various desires...as part of who one is,” thus making ownership superfluous for this end.

I suspect there is confusion here between “owning up” and “authenticity”, between “self-ownership” and “transcendence”. Perhaps we could take her definition of “body-ownership” and just call it “integration”.

Church goes on to say that a poorly integrated individual has a weak claim over their body.[18] I understand that she does not mean to say that the body is “up for grabs” as it were, but rather, that it is foreign to the person (who may or may not be a “self”). All this rests on yet another rendering of “own”. This time the better word is, “control”. She says: if someone does not control their body, then they do not own it. While I may support the conclusion, I don’t see a necessary connection to the premise. I don’t know if someone can be said to own what they do not control. I suppose they must control it in the sense of “having say”, but not really in any physical sense. My computer can go haywire without it ceasing to be my property. On the other hand, one can certainly control what they do not own, e.g. cruising in a borrowed car.

Owning Others

It is specifically to avoid the possibility of owning others that I would prefer not to allow for ownership of selves. Church does acknowledge this as a possible consequence of her view. While at one point she says that it is impossible to entirely transfer ownership of oneself,[19] she later warns of “the permanent selling of oneself—into slavery, for example.”[20] I’m not sure whether it is possible or not in her final analysis.

What is possible, and not a problem for her, is commerce in humans who are not selves, namely newborns. I will leave for another time a discussion of whether or not selfhood needs to be a requisite for moral consideration,[21] but I will suggest yet one more misapplication of “ownership”. What a parent is over their child is not an owner, but a custodian. Hence, “custody battle”.

 

Conclusion

While Jennifer Church’s Ownership and the Body gives an interesting and compelling account of the self, and deals with what one would need for an explanation of how one comes to own their body, it still leaves me unconvinced that we can speak of bodies as owned. Perhaps bodies post mortem can be owned by universities, museums, and eccentric pop stars. My body, however, is not owned by anyone, including me. It simply is me (even if I am not simply my body). If I am physically violated, it is not a property crime, it is an assault. “Don’t touch me!” does not gain any force rephrased, “Don’t touch my body!” That property rights need to be invoked for metaphysical conceptualising of the self and for concrete protection of the body is a sad symptom of a society that objectifies subjects and instrumentalises bodies.

 

Bibliography

 

Church, Jennifer. Ownership and the Body in Feminists Rethink the Self. ed. Diana

Meyers. (Boulder: Westview Press, 1997)