Scots law, as it pertains to the human body, its parts and its derivatives, is said to be 'as settled as the law of England'. It has been juridically asserted that there can be 'no property in a corpse' in either jurisdiction. This rule precluding ‘property’ in cadavers has been extended, in Anglo-American jurisdictions, to hold that parts of bodies and separated human tissue are also, prima facie, legal non-entities. The suggestion that Scots law is as settled as – indeed, is the same as – the law of England in respect of this matter is puzzling, however. Scots property law is ‘resolutely Civilian in character’: the word ‘property’ holds a distinctly different meaning to a Scots lawyer than to an Anglo-American lawyer.Furthermore, again due to Scotland's institutional connection to the Civil law, Scots law has the potential to afford redress and remedy in situations in which the Common law has been unable to do so. The actio iniuriarum served in Roman law – and serves in modern South African law – as a means of safeguarding the 'dignity' of persons. Scots law, too, thus has the potential to safeguard individuals’ interests in ‘dignity’. This thesis argues that the distinct legal history of Scotland makes any assumption of commonality between Scots and English law simplistic at best and offers the first comprehensive account of the law relating to the human body, its parts and derivatives in Scotland.Ultimately, the thesis concludes that Scotland’s mixed legal heritage affords scope for the law to develop a ‘mixed approach’: while it can sometimes be appropriate to recognise the human body, its parts and derivatives as 'property', in other cases it is more logical to regard them as continuing to form a part of a legal 'person'.
|Date of Award||25 Jun 2020|
- University Of Strathclyde
|Sponsors||AHRC (Arts and Humanities Research Council)|
|Supervisor||Mary Neal (Supervisor) & John Blackie (Supervisor)|