LLB220 Lecture Notes - Lecture 6: Hairy Cell Leukemia, Fiduciary, Bailment
Week 6 – The Idea of Property
A pluralist approach
• Does one have to choose between the various theories of property?
• Munzer claims there are three main pillars of property justification theory:
1. Utility and efficiency
- Provides a level of wealth which allows for social benefit
2. Justice and equality
- Fail to attend to the importance of providing incentives to increased levels of
production
- Mitigates the harshness of this principle
3. Labour and desert
• The principles of these pillars – and each of them expresses some important virtues
that the others omit – can be combined
• A generalised respect for a principle of equal moral worth would lead to a
distribution of property that would ensure a basic minimum (floor thesis)
• The gap between the rich and poor should not be too great because inequalities can
wound self esteem and create resentment (gap thesis)
• Pluralist analysis is a philosophy that must be tailored to the circumstances of
particular economies and societies at certain stages of their development
Historical Changes in the Nature and Function of Property
• Historically
- Perceived to be a right of access to the resources of society
- Land property rights gave expression to this in the form of rights of access to
land
- Notion of common property widely accepted
- Right to exclude was peripheral to property
- Land was not readily marketable
• 17th century → concept of property narrowed and was seen individualist terms
instead of something owned collectively.
Shifted from being a right not to be excluded but a right to exclude others
Originates with the labour theory
• 20th century → change in conception of property →
Emergence of the welfare state. Income provided to those who cannot find
employment or cannot produce own wealth.
State itself became an employer, increase in government contracts
The state confers the power on individuals to be able to work in particular trades
• Married women recognised for the work they do as domestic labour
• Today → foeig pesos – see Foreign Acquisitions and Takeover Act 1975 (NSW)
find more resources at oneclass.com
find more resources at oneclass.com
Doctrinal Dimension – The Boundary Between Property and Other Rights
Property and Contract
• An enforceable contract entitles a party to the contract to sue for damages in the
event of breach by the other
• The right in question is a personal right enforceable against the other party to make
good any damage suffered
• General principle → not enforceable against third parties
• Contrasted with a property right → confers a right over a thing and can be
enforceable against third parties
• Two separate remedies:
1. Contractual remedy against the original party
2. Proprietary remedy against a third party
• For a right to be proprietary it must come under a recognised category for
proprietary rights
- If the dot, ol pesoal eedies ae aailale
• A licence is not a recognised proprietary interest and cannot be enforced against
third parties
• Even if a contract purports to transfer a recognised proprietary interest, this interest
will only arise if the the remedy of specific performance is available
Property and Indigenous Rights
• No sense to say that indigenous peoples have the right to use and enjoy the land just
because they want to perform rituals on it (Milirrpum v Nabalco Pty Ltd – Blackburn
J).
- No right to exclude members of other clans
- No right to alienate the land
• This principle now swept aside with Mabo (No 2) → native title was recognised by
oo la. Doest atte if the use of lad doest fit ito the Weste
definition of property rights
Native title has features not shared by other forms of property:
• Not generally alienable → can be passed through generations and to the Crown
(right of pre-emption) but cannot be transferred to others
• Vuleale to the Cos ight to etiguish it by the exercise of radical title
• However, the fact that native title can form the basis for compensation under s
51(xxxi) of the Constitution allows rights to exclude others by means of equitable
and common law remedies → points to the rights being proprietary not personal
find more resources at oneclass.com
find more resources at oneclass.com
Body Parts and Property Rights
• E.g. the use of organs and cells for transfer and research
- Discussed in Moore v Regents of the University of California
• Do we own our bodies?
• NSW → s 32 Human Tissue Act 1983 prohibits the sale of human tissue while a
person is living or dead except in designated circumstances
- E.g. having the tissue processed or treated and the sale or supply being for the
purpose of using the tissue for therapeutic, medical or scientific purposes
• Henrietta Lacks
- Poor woman from a farming family, dark skinned, died when 31
- Died 1951 of cervical cancer
- Prior to her death, cells taken from her cervix without her consent or knowledge
- Used to develop the first immortal cell line → efoe this, ells ouldt suie
for long outside the body
- HeLa cells routinely bought and sold today for use in research
- Estimated that over 20 tones of the cells have been grown
- In 2013 German researchers published the genome of the cells
- Highlights how behind the law is in relation to our body
Ownership of Living Bodies
• Common law → living body not capable of being owned
- Dominus membrorum suorum nemo videtur = no one is to be regarded as the
owner of his own limbs
• R v Bentham, [2005] UKHL 18
- Charge of possession of a firearm after a man used his hand under a coat to
simulate a firearm
- Unsevered hand could not be possessed as it was part of the body – had no
independent existence
• Idea that bodies are res nullius = things that are not owned
• We do not own our own bodies – therefore cannot sell/transfer selves to others
• But this does not cover:
1. Dead bodies
2. Things severed from our living bodies
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
A pluralist approach: does one have to choose between the various theories of property, munzer claims there are three main pillars of property justification theory, utility and efficiency. Provides a level of wealth which allows for social benefit: justice and equality. Fail to attend to the importance of providing incentives to increased levels of production. Historical changes in the nature and function of property: historically. Perceived to be a right of access to the resources of society. Land property rights gave expression to this in the form of rights of access to land. Right to exclude was peripheral to property. Land was not readily marketable: 17th century concept of property narrowed and was seen individualist terms instead of something owned collectively. Shifted from being a right not to be excluded but a right to exclude others. Originates with the labour theory: 20th century change in conception of property .
