"Do we own our body parts, or do they belong to somebody who needs them?" asked U.S. Circuit Judge Guido Calabresi yesterday of a crowd of 65 at the Rockefeller Center.
The Judge spoke on the topic of "Do We Own Our Bodies? How Four Approaches to Law Would Analyze This Question," as part of the Timbers lecture series in jurisprudence.
Calabresi is a judge on the U.S. Appeals Second Circuit, a Sterling Professor Emeritus of Law and Professorial Professor in Law and former Dean at Yale University. He holds over 20 honorary degrees, has written four books and authored more than 80 articles.
Calabresi started off his somewhat humorous and enjoyable lecture by presenting an unusual anecdote.
In his story, a man learned that he needed a bone marrow transplant, and the only suitable donor was his cousin. His cousin, however, refused to undergo the necessary operation. The man sued his cousin, lost the suit, and passed away before another donor was found. This well known case set a precedent for examining legally whether or not people own their own bodies.
Calabresi then addressed his four points. His first point, called the Traditional Formalist approach, examines the manner in which the court system approaches this issue.
Citing the law as an autonomous discipline, he noted that judges try to treat like cases alike. So if an individual possesses something that another needs, does that person have a right to take it, regardless of whether it is a body part?
Calabresi pointed out that in most cases people act as if they do own their bodies.
"No operation can occur without informed consent. You can sell your hair or blood. We treat people as owning what they possess," Calabresi said.
He noted that exceptions to this rule exist, such as when people are forced to enlist in the army, which makes unclear whether or not people truly do own their bodies.
Calabresi's second approach, called the Various Law and Economic or Philosophy approach, was somewhat broader, both in name and in content.
"We look to a field outside of law as the basis for values to criticize, strengthen or weaken the law so that we do not have to just rely on the way that things have been," Calabresi said.
Citing this tyranny of history, Calabresi said that society should not be stuck with a law just because the law exists.
From the economic aspect, Calabresi cited inefficiency and market breakdowns as reasons for why body parts should not be owned by the people who possess them.
He countered these economic arguments with moral hazard, which necessitates people not caring for their body parts because of the supply of extra parts that would exist. Furthermore, there would be high costs of enforcement.
From the philosophical standpoint, Calabresi noted that people would have double standards in this law depending on whether or not they had a personal vested interest in acquiring a body part.
His third approach examined the legal process, which he described as "the law looking outside itself."
"The law must ask: who should decide the question [of who owns an individual's body]--the legislature, court, administrative agency," Calabresi said.
His final approach is called Law and Status, and examines the other three approaches from the perspectives of particular groups, including women and minorities.
When asked to describe what is actually meant by the term 'body,' Calabresi responded, "It is very hard to define what it is. If I lose my hair, it is no longer mine. Yet there is something at the end of it that if I did not have I would no longer be who I am."
While visiting Dartmouth, Calabresi also spoke at the Aquinas House on the death penalty last night.
