Welcome to the first blog post in a series of entries on the theme of legal personhood. Each fortnight we will ask a La Trobe Law School academic to write about how the concept of legal personhood intersects with their research interests. The first post is written by Marc Trabsky, Lecturer, who conducts research in the interdisciplinary field of law and death.
The legal status of the corpse has long been subject to uncertainty. Is the corpse a person or a thing in common law? The answer to this question not only has implications for succession law, but also for urban redevelopment, anatomical research, museum collections and the sustainability of cemeteries. The new draft master plan for the renewal of the Queen Victoria Market awkwardly acknowledges the legal uncertainty of the personhood of the corpse. The market was constructed on top of the first burial grounds of Melbourne. The history of the development of the site across the nineteenth and twentieth centuries reveals a spatial conflict between a permanent resting place for the dead and the economic activities of the living (Trabsky, 2013). Currently around 8000 to 10000 unnamed and unidentified corpses remain encased under layers of reinforced concrete in the market’s carpark. The Council maintains that the renewal of the market is urgent, yet at the same time they will “[r]esolve appropriate actions with respect to burials in the area” and “[m]inimise excavation and potential disturbance of remaining burials”. Whether the rights of the dead to remain buried indefinitely – that is if such a right even exists in Australia – are privileged over the economic interests of the living depends on whether the corpse is afforded legal personhood.
For Jeremy Bentham the dead “should be treated with neither respect or reverence, for they were only things for us” (Bentham quoted in Davies and Naffine, 2001: 105). Yet for many people in the world, the dead should be remembered, honoured and memorialised in death precisely because they were respected and regarded as persons while alive.
In one of the earliest cases on this subject, Haynes Case (1614) 77 ER 1389, the corpse was defined as neither a person nor a thing (nullis in bonis). William Haynes was caught digging up graves, removing the bodies, stealing the winding sheets that covered the cadavers and then re-burying the bodies back in their graves. The key issue in this case was whether Haynes stole from the dead or someone else. The court held that a dead body is not capable of owning the winding sheets – that a corpse cannot possess rights – because it is “but a lump of earth hath no capacity” (1389).
Fast-forward to the controversial High Court of Australia decision of Doodeward v Spence  HCA 45 where Chief Justice Griffith ruled that a corpse is neither a person nor a thing. He also decided that a two headed still-born baby may became a thing “by the lawful exercise of work or skill” of another person, if the application of work or skill substantially altered the constitution of that thing.
In the twentieth century, the question of whether the corpse is a person or thing still remained ambiguous. In Beard v Baulkham Hills Shire Council and Another (1986) 7 NSWLR 273, Young J held that the dead may possess an exclusive contractual right to burial, an ‘irrevocable licence’ to remain undisturbed in its grave “at least until the natural process of dissolution” is complete (278). The question that arises in this case is what is meant by ‘the natural process of dissolution’?
The problem of defining the corpse in law has thus perplexed lawyers and philosophers for hundreds of years and to this day it still remains unresolved. How do we make legal sense of the corpse? Is it a person or a thing? Does it possess rights or constitute property? And if the legal personhood of the dead is uncertain, what is the legal status of the cadavers exhibited by Gunther von Hagen in his Body Worlds exhibition or the corpses donated to Australia’s first body farm in NSW? The legal status of the corpse in Australia remains as unresolved as death itself.
Davies, Margaret and Naffine, Ngaire, Are Persons Property? Legal Debates About Property and Personality (Ashgate, 2001)
Marc Trabsky, ‘Legal Personhood #1: The Corpse’, Law and Justice, 15 April 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)