Bones of Contention: The Right to Possession of the Body of the Deceased as a Property Right Kate Falconer July 2020 A thesis submitted for the degree of Doctor of Philosophy of The Australian National University © Copyright by Kate Falconer 2020 All Rights Reserved Acknowledgements It certainly does take a village to write a thesis, and the fear of leaving one or more people out of my Acknowledgements section has led me to put off this task for far longer than I should have. The obvious (and none the less sincere for it) place to start is with my PhD supervisory panel at the Australian National University’s College of Law. I am immensely thankful to Pauline Ridge and Greg Weeks, and particularly to my primary supervisor, Darryn Jenson, for the support, feedback, and grammatical advice they have offered over the years. I hope to one day succeed in banishing split infinitives from my scholarship. This thesis would have been much the poorer without the laughter shared with my PhD colleagues in H Block. Our weekly ‘shut up and write’ sessions have been indispensable throughout what at times has been an immensely draining process. Outside of the PhD office, I owe a very large debt of gratitude to the Law School librarians. Thank you for allowing me to flaunt, repeatedly and fragrantly, both the item loan limit and the notion of a due date. I am thankful to the ANU for offering me both a fee waiver scholarship and a living stipend (via the Australian Government’s Research Training Program) so that I might conduct my research in peace. Similarly, I greatly appreciate the College of Law providing me with the funding necessary to attend and present at a number of conferences and seminars throughout my candidature, both in Australia and overseas. I also benefitted immensely from my time spent in visiting research positions at the Max Planck Institute for European Legal History and the Hastings Center in New York. My particular thanks to Heather Conway for hosting me for a lovely few weeks at Queen’s University Belfast in August of 2019, as well as commenting on several drafts of my work. As with many theses, however, the biggest thanks is reserved for my family. I so appreciate the unreserved support offered by my parents, Tony and Rose — even if they have never quite understood what exactly it is I do. And finally, Michael — I can’t put into words how thankful I am for the unwavering love and encouragement you have given me over the past three and a half years. I absolutely could not have done this without you. If I’ve forgotten anyone — it’s not you, it’s me. This Thesis was written on land that belongs to the Ngunnawal people and to the Turrbul and Jagera nations. In writing this Thesis, I pay my deepest respects to the Traditional Custodians of both the Canberra and Brisbane regions, alongside all other First Nations people of Australia, and their elders past, present, and emerging. v Abstract Death comes to all. And in all cases, someone must see to the disposal of the body. In common law jurisdictions such as Australia, the person tasked with disposing of the body of a particular deceased person is said to hold a right to possession in relation to that body. By giving one particular individual physical and decision-making control over the deceased body at issue, this common law right to possession of the body of the deceased (‘the right to possession’) plays a vital role in the resolution of legal disputes relating to the treatment and disposal of the dead. Such disputes are increasing both in number and in frequency, and a thorough understanding of the law that underpins them is necessary. Nonetheless, judicial engagement with, and academic consideration of, the right to possession is inconsistent and inconclusive, particularly as regards that right’s juridical status. This Thesis addresses this key gap in our understanding by responding affirmatively to the question ‘is the right to possession of the body of a deceased person, as it currently exists in the Australian common law, a property right?’ In answering this question, this Thesis undertakes a doctrinal analysis of a core group of 56 Australian post-death dispute cases, adopting an evaluative framework that requires both internal and external consistency. The right to possession is first acknowledged as having particular, recognisable salient features that identify that right as an independent, established legal incident and allow it to operate in a predictable way in any given post-death dispute. Having determined the right to possession to be an internally consistent and cohesive legal incident, this Thesis then engages in an exercise of analytical jurisprudence to identify the essential attributes of property and to assess whether the right to possession possesses those attributes as a matter of external consistency. This Thesis adopts an exclusion essentialist theory of property, drawing especially on the work of James Penner. It defines the taxonomical branch of the private law that is property as those legal rules that work to protect our interest in exclusively determining the use to which our ‘thing’ is put. Assessing the right to possession’s compliance with the structural framework expected of property rights that results from this definition, this Thesis reaches the preliminary conclusion that the right to possession is indeed proprietary in nature. It then analyses the external consistency of each of the right’s internal salient features with this preliminary conclusion, ultimately confirming that the right to possession of the body of a deceased person as it currently exists in the Australian common law is a property right. vii Table of Contents Declaration ................................................................................................................................... iii Acknowledgements ....................................................................................................................... v Abstract ....................................................................................................................................... vii Table of Contents ......................................................................................................................... ix Table of Figures .......................................................................................................................... xv Chapter One Introduction ......................................................................................................... 1 1. Introduction ........................................................................................................................... 1 2. Context and Scope ................................................................................................................ 2 2.1. The Law of the Dead ..................................................................................................... 2 2.2. The ‘No-Property’ Rule ................................................................................................ 4 2.3. Beyond the ‘No-Property’ Rule .................................................................................... 5 2.4. Scope of the Thesis ....................................................................................................... 6 3. Defining the Right to Possession .......................................................................................... 7 4. The Right to Possession in the Literature ............................................................................. 9 4.1. Body Exceptionalism and an Unanalysed Right to Possession................................... 10 4.2. Analysing the Right to Possession .............................................................................. 12 4.2.1. A Bundle of Rights Perspective .......................................................................... 12 4.2.2. Property from Public Policy ................................................................................ 13 4.2.3. The Right to Possession as Something Other than a Property Right .................. 14 5. Methodology ....................................................................................................................... 17 5.1. Selecting the Case Law ............................................................................................... 17 5.2. The Evaluative Framework ......................................................................................... 19 6. Argument ............................................................................................................................ 20 7. Conclusion: Three Original Contributions .......................................................................... 23 Chapter Two A History of the Right to Possession ................................................................ 25 1. Introduction ......................................................................................................................... 25 2. Three Legal Incidents within the External Architecture of Bodily Disposal ...................... 26 3. The Concurrent Birth of Estate Administration, Liability for Funeral Expenses, and Duty to Bury ............................................................................................................................................ 27 4. Liability, Duty, and Estate Administration in the High and Late Middle Ages .................. 30 4.1. The Personal Representative Emerges as a Legal Institution ....................................