Critically Discuss The Following Statement

2441 Words Oct 31st, 2016 10 Pages
Critically discuss the following statement:
‘[T]he common law does not regard corpses as property, perpetuating a legal myth that dates back to the seventeenth century, and is now firmly entrenched in English law and in common law jurisdictions with derivative legal systems.’
- Heather Conway, The Law and the Dead (Routledge, 2016), p. 2.
It has long been the general position in common law that there are no property rights in a corpse. There is an array of case law from England and other common law jurisdiction spanning over centuries that highlight the situations in which this legal issue may arise. They all have one obvious common denominator – Death. The law must attempt to strike a balance between upholding the rights and wishes of the deceased, while also recognising the rights, albeit not neccesarily propietary, of the families and other related parties left behind. One reason that the issue of the corpse is a complicated and contentious concept in law is that it is difficult to define what exactly it is. Is it a person? Is it a thing? Or is it neither? Legally defining a corpse has proven to be difficult for lawyers for centuries.
To begin to explore this rule, one must look at the historical context from which it developed. One of the earliest cases in this area is Haynes Case. William Hayne had removed the bodies of 3 men and one woman from their respective graves, stolen the sheets in which they were wrapped and subsequently buried the bodies again. The issue at…
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