The legal Structure of Self‐Ownership: Or the Self‐Possessed Man and the Woman Possessed
| Published date | 01 June 1998 |
| Author | Ngaire Naffine |
| DOI | http://doi.org/10.1111/1467-6478.00087 |
| Date | 01 June 1998 |
The purpose of this paper is to expound the legal meaning of self-
ownership, 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 partic-
ularly, 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.
INTRODUCTION
The story of the rise of modern Anglo-American law is often rendered as a
tale of liberation and enlightenment – of coming to see the world in the light
of human reason and so prevailing over the darker forces of nature. It is a
story of human progress, of a loosening of the constraining ties of custom
and the embrace of efficient and productive human relations of choice. It
describes a movement away from inegalitarian natural relations to social
relations formed freely through the mechanism of contract. The legal being
who emerges from this process of modernization is often depicted as rational,
self-determining, autonomous and, perhaps most significantly, as self-owning.
The concept of the person as self-proprietor has a secure place within our
modern liberal political theory and liberal jurisprudence. It has become a
© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Reader in Law, Law School, University of Adelaide, South Australia 5005,
Australia
I am grateful for the opportunity to deliver an earlier version of this paper to the staff of
Dalhousie Law School and to my friends at Birkbeck College. At Birkbeck, I benefitted greatly
from the comments of Beverley Brown, Costas Douzinas, Lindsay Farmer, Emily Jackson,
Katherine O’Donovan, and Matthew Weait. I am also much indebted to Margaret Davies,
Nicola Lacey, and Kate Leeson for their many thoughtful and constructive suggestions.
193
JOURNAL OF LAW AND SOCIETY
VOLUME 25, NUMBER 2, JUNE 1998
ISSN: 0263–323X, pp. 193–212
The Legal Structure of Self-Ownership: Or the Self-Possessed
Man and the Woman Possessed
NGAIRE NAFFINE*
convenient way of highlighting the freedoms enjoyed by the modern individ-
ual, 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.’1But 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 his2public
persona. The great theorist of property-in-self, John Locke,3certainly
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.4This 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).5When 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,6then we are necessarily
obliged to consider whether modern men and women can both be self-
proprietors 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
© Blackwell Publishers Ltd 1998
1K. O’Donovan, ‘With Sense, Consent, or Just a Con? Legal Subjects in the Discourses of
Autonomy’ in Sexing the Subject of Law, eds. N. Naffine and R. Owens (1997) 46.
2This paper will mainly employ the male pronoun as the thesis which it will pursue is that
self-ownership was conceived as male.
3J. Locke, ‘The Second Treatise of Government’ in The Two Treatises of Government, ed. P.
Laslett (1992) 265–428.
4This is not intended to imply an uncritical acceptance of the public/private dichotomy which
has been subjected to extensive analysis in the feminist legal literature: see Public and Private:
Feminist Legal Debates, ed. M. Thornton (1995). Much of this article will attend to the
problems which inhere in this distinction.
5By definition, lawful intimacy, the intimacy sanctioned by family law, is that which takes
place between persons of the opposite sex. See below.
6On the sexing of persons in family law see O’Donovan, op. cit., n. 1, p. 46 and K. O’Donovan,
Family Law Matters (1993). On the sexing of the legal subject in the other branches of law
see Naffine and Owens, op. cit., n. 1.
To continue reading
Request your trial