Self-Ownership and Self-Alienation: Three Case Studies

• Date: 03 August 2011
• DOI: https://doi.org/10.1108/S1059-4337(2011)0000056004
• Published date: 03 August 2011
• Pages: 1-36
• Author: Ethan MacAdam

SELF-OWNERSHIP AND

SELF-ALIENATION: THREE

CASE STUDIES

Ethan MacAdam

ABSTRACT

This chapter addresses the alienability or inalienability of the bodily self

by looking at continuing legal, economic, and cultural issues surrounding

three case studies: the growth of cell lines, live organ transfer, and the

practices of ‘‘forced prostitution’’ as a contemporary form of slavery.

The essay contends that it is, ironically, Locke and Hegel’s shared

hyperliberal notion of the self as inalienable property that sustains a

potential basis, in law and in culture, for troubling cases of self-alienation

which persist in the case studies offered.

While the state of knowledge across both the human and the natural

sciences has done a great deal to disassemble the entrenched western

doctrines of mind/body dualism, we still regularly resort, in law as in other

endeavors, to the integrity of both entities: of a consciousness which is also

the locus of intellectual/creative activity and psychological character on the

one hand, and a physiologically discrete organism as the seat and instrument

of that consciousness on the other. Yet, again, we no longer live (if we ever

did) in a world where such dualism withstands scrutiny: as earnestly as

Special Issue: Human Rights: New Possibilities/New Problems

Studies in Law, Politics, and Society, Volume 56, 1–36

Copyright r2011 by Emerald Group Publishing Limited

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000056004

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Deleuze and Guattari (1977) asserted the psychological self to be far more

diffuse than the physiological body of everyday life (which that self imagines

in turn as similarly diffuse), so daily life reiterates to us that the body has far

less integrity than a nominally unified psychological self may often need to

suppose. Controversy over the collection of individuals’ DNA from remnant

biological materials, for example, reminds us that we daily slough off minute

amounts of our physical selves; and even if we regard our alienation of

bodily wastes as the return of ingested materials to the environment, there is,

as at least one scholar has previously noted, a more genuine self-partition

involved in men’s alienation of reproductive material in sexual activity, or of

a woman’s giving birth to a child. More mundanely, we cut our hair and

nails; we lose bodily matter when we are wounded; on occasion, we donate

blood and even organs, and we may cause tissue to be excised in surgical

procedures.

The converse of this phenomenon – that we daily incorporate outside

matter into our bodies, most often via ingestion – is somehow more familiar

to us, as is the varied integration of our environment and of beings around

us into our physical and mental functioning. Partition of or subtraction from

the self, however – the alienation of our body or any part of it – usually rubs

against our intuitions as unnatural and as deeply illiberal. Discomfited as we

may be, for instance, with the pace of biotechnology that increasingly

promises to add (even on a nominally voluntary basis) organic and

inorganic components to our bodies in ways that may also offend our ideals

of the bodily self’s autonomy, our prohibitions against alienation of or from

that self are far older and stronger; not only shall no individual be deprived

of his or her physical liberty without just cause, but none shall similarly

overcome that same individual’s will and intentions for their own body, nor

have a power of disposal over any part of that body.

So strident is this prohibition that liberalism finds its limits here as well: in

most contemporary law codes, no person can willfully alienate their body or

control of it to another in such a way as might be enforced by physical

coercion, and no contractual agreement can create such an arrangement.

This point is important: physical alienation of the body (by others and/or by

the self) is forbidden at the physical level. Many other courses, after all,

remain open to one who seeks to induce bodily acts in another, even to have

disposal over another’s body or its parts (via regimes of psychology,

economy, etc.), and we may also conceive of an individual who succeeds

in voluntarily ‘‘enslaving’’ himself to another’s will by substituting his

own self-discipline for the threat of violence (i.e., as outlined by Foucault,

1995, pp. 195–228), but these would not be cases of self-alienation in the

ETHAN MACADAM2

physical-material sense so offensive to us (though they might certainly prove

offensive in other jurisprudence). Self-alienation, marked by the surrender

of some or all of the body, matters most as a physical fact.

This essay, then, examines the case for asserting, descriptively and/or

normatively, the inalienability of the bodily self;

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because the alienation thus

denied does matter most in physical contexts, however, I want to frame this

argument in terms of the question of the self as an inalienable property,

rather than as the object of inalienable rights of ownership. This is an

awkward distinction because property/ownership in the western legal

tradition is of course a name for a constellation of rights (disposition, use

extending to consumption, retention, abandonment, etc.),

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and so we might

readily say that we are always speaking of the latter in speaking of the

former. I make no objection to this idea, but it remains that these rights

always have an object,asomething, in some aspect material and tangible,

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to

which they apply, and that we do not conceive of property without

consciousness of both the abstract rights and this material substrate (‘‘So

inexorable is the movement from property to things (so inescapable the

probability that property will be a thing),’’ says Best, 2004, p. 52, n. 43).

When I speak (or wish to speak) in this essay about inalienable property,

then, the issue becomes confused – as J. S. Mill pointed out, the idea of

private property at least potentially presupposes alienability (see Radin,

1987, pp. 1888–1889), and to posit a kind of property which cannot be

alienated seems in some sense to disqualify the material in question as

property – something that cannot be alienated cannot be owned. But the

discourse of our jurisprudence does not proceed along this path – instead,

we usually cannot help but conceive of ‘‘inalienable’’ material as property

owned by (or as) the individual from whom it cannot be alienated.

By contrast, inalienability is not a problem for our discourse of rights,

which we do not regard ourselves as ‘‘owning’’ in this way; we ‘‘possess’’

rights certainly, but the semantic difference highlights the fact that rights are

of course intangible and abstract in a way that the material substrates they

may apply to never are. Some rights (like at least some property) are

alienable (‘‘waivable’’ in the language of rights) in themselves in a formal

sense (e.g., the Fifth Amendment’s right against self-incrimination); as for

rights we may call inalienable (and it is to these that notions of inalienable

property are usually linked), highly complex and in some cases metaphysical

questions attend the idea of what would constitute alienation of such rights

(if we do not exercise a right, do we still possess it in that declination? and if

we are prevented from exercising it? by physical force, by other means?).

This is true precisely because rights are largely intangible abstracts: we are

Self-Ownership and Self-Alienation: Three Case Studies 3