The legal Structure of Self‐Ownership: Or the Self‐Possessed Man and the Woman Possessed

Abstract

The purpose of this paper is to expound the legal meaning of selfownership, to examine its internal logic and its applications to both men and women within the two major spheres of human relations. To date, discussion of the self-proprietor has largely been confined to his public manifestation. This paper provides a critical study of the person as proprietor of his person in both his public and private lives. More particularly, it considers whether women, as well as men, can be said to have property in their persons, not only when they are engaged in acts of gainful employment, but also when they enter lawful sexual relations. convenient way of highlighting the freedoms enjoyed by the modern individual, a sort of legal shorthand, a rhetorical device, which serves to accentuate the fullness of the rights enjoyed by persons in relation to themselves and to others. 'To be a full individual in liberal society', as Katherine O'Donovan observes, 'one must be an appropriator, defined by what one owns, including oneself as a possession, not depending on others, free.' 1 But can this concept of self-ownership withstand close inspection? What can it possibly mean to say that we own ourselves? Who owns what, and in relation to whom? As soon as the concept of self-ownership is subjected to scrutiny, interesting questions arise about the legal relations thus implied, about their scope and about their supposed universal application.The often political nature of the rhetoric of self-ownership tends to suggest that the self-owning person refers only to the individual in his 2 public persona. The great theorist of property-in-self, John Locke, 3 certainly employed the concept to designate the self-sovereignty of men in their economic relations with other men. In its modern application to working life, late in the twentieth century, it must of necessity apply to women as well as to men if it is to have any general purchase, but does it make sense so to do?There are intimations in the legal literature that self-ownership is not confined to public existence, but is meant also to apply to persons within the other major sphere of life: the private. 4 This is the sphere of conjugal relations, which (family) law defines as intimate relations between men and women as men and women (and not as relations between women and women or between men and men, since such relationships are not recognized by family law as the appropriate sexual forms). 5 When we consider the person as self-proprietor within the realm of the conjugal, the realm where persons are still explicitly and compulsorily sexed by law, 6 then we are necessarily obliged to consider whether modern men and women can both be selfproprietors when they have intimate relations with one another. Does the idea of the self-proprietor, as it is commonly conceived (rather than how it is necessarily conceived), allow both men and women to engage in a sexual 194

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