Class Notes: To the extent that a person has the ability to determine the use of their body parts after death, you could say they have some sort of property right, perhaps as a gatekeeper. As the dissent points out, saying whether something is inalienable or not does not really answer the question of whether it was property Sometimes you can give away property, but cannot lawfully sell it Sometimes you can sell property, but cannot lawfully give it away (bankruptcy) There are some things you cannot lawfully give away or sell (your bar license to practice law) Property and Personhood, 1982 , Margaret Jane Radin (Page 8-19) A general justification of property entitlements could hold that the property rights get stronger as you move from fungible to personal property. Facts/Reasoning: To be a person, an individual needs some control over resources in their external environment. Property rights can give this control, and thereby support personhood. Most people possess certain objects they feel are almost part of themselves. In contrast, property that is held purely instrumentally is fungible If the body is property, then objectively it is property for personhood. Body parts can become fungible commodities in some cases, just as other personal property can become fungible with a change in its relationship with the owner – blood transfusion, hair cut off for a wig, etc. The personhood perspective generates a hierarchy of entitlements: the more closely connected with personhood, the stronger the entitlement. This theory would tell govt to curtail one person’s fungible property right in favor of another’s personal property right. Not all object-loss is equally important. A few objects may be so close to the personal end of the continuum that no compensation could be just. Radin suggests how legal procedure (burdens of proof, standards of review) can shift the risk of error away from hurting protected interests in personal property. However, she is surprised that this general limitation on property has not developed. Markets and Morals, 1987 , Margaret Jane Radin (Page 336-345) outlines.ilrg.com 21
The idea that each person’s attributes are fungible and therefore tradable, subverts our notion of personhood which is based on an ideal of individual uniqueness. Facts/Reasoning: Market-inalienability is the situation in which something cannot be traded on the market. Radin argues that we should evaluate market inalienabilities by understanding of the concept of “human flourishing.” Radin critiques universal commodification (Posner) which privileges profit-maximizing, buying, and selling. stifles the individual and social potential of human beings. disguises relationships between people as relationships between commodities governed by abstract market forces.
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