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MORAL OBLIGATION AND DIGNITY OF THE SELF
VIS-
A-
VIS
'PERSONHOOD' OF THE DEAD
. .
Onos Godwin Idjakpoe
jakpo
r12
34@gmail.com
Abstract:
This work addresses the issues, whether dead persons have rights
and moral obligations or could be accorded such, and whether the 'remainsdeserve
such dignity. The legitimacy of posthumous dignity and protection of personality
will be interrogated from the vantage point of relevant questions, namely, Does a
dead person have any rights over his/her body or remains? Who can claim to have
any right over a corpse or the incorporeal entity (the post-mortem person)? If the
living claims any right over the corpse, does it then make the dead person a mere
object? Should an incorporeal entity (corpse) be subjected to violation in terms of
defamation?, Should we (the living) be obliged tofulfil the 'will' or promise made to
a person (when he/she was alive)? And lastly, why should one not speak ill about
the dead? We approached these issues from the perspective of our sense of morality
in relation to the concept of "self', ''person'', "death" and "dead body". The methods
are expository and critical analysis. We conclude that our conception of memory of
the self and its continuity as a conscious moral being is the impetus regarding our
dignifying the dead and our belief in post-mortem personhood.
Keywords:
Personhood, the Dead, Rights, Moral Obligation, The Self.
Introduction
A concept of personhood may not be necessary for attributing someone
with (human) rights. It is the component ideas such as the biological concept
(being a human being), a rational agent and continuation of consciousness
that influence the formation of the concept of "person" and the quality called
"personhood", and therefore, motivating the possibility of extending someone
with human rights'. However, one cannot say with certainty how these
component ideas may contribute in ascertaining a dead person's right to
dignity. It becomes difficult to ascertain a dead person's right to dignity
because the rational agent in us would immediately remind us of the fact that
the dead are devoid of life and hence, do not have any feelings that can get
outraged. However, other than being a rational agent, we are also moral
agents and our thoughts and attitudes are as much driven by rationality as
*
Lecturer, Department of Religious Studies and Philosophy, Delta State
University, Abraka, Delta State, Nigeria.
1
Mitchell Travis, "We're all infected: Legal personhood, bare life and The Walking
Dead."
International Journal for the Semiotics of Law-Revue internationale de Semiotique
juridique
28.4 (2015), pp. 789.
~ - Multidisciplinary Research Journal
105
they are by a sense of morality and ethics>.
John Troyer
(2020)
wrote that human bodies after death often becomes
the "property" of "next-of-kin" and many people would find this idea of
objectifying the body of a person disturbinga. The point that somebody may
find this idea disturbing is an issue which probably pertains to our moral,
ethical and sentimental codes-. However, before analyzing such moral,
sentimental and ethical standards, it is important to weigh the idea that "In
the eyes of the law (for instance) in necrophilia cases, a dead body becomes a
kind of "property" for a next-of-kin ... Because necrophilia, in this sense,
becomes an act of vandalism, not a sexual attack on a
person'".
The statement
that the dead body becomes the "property" of the family or any relative or
friend, and thus, in cases where a dead body is subjected to sexual intercourse
it is not actually an act of sexual abuse but an act of vandalism (if at all it is
treated as vandalism), needs to be analysed from the perspective of our sense
of "property" or the idea of owning something.
Consider the word "claim". Linguistically, the word claim refers to the
idea of a demand of ownership (made for something). We can claim land,
victory, identity, compensation and such other things. Thus, the idea of
demanding ownership is then intrinsically linked to a sense of property.
However, as mentioned by Troyer
(2020),
is the dead human body a property
of the family, or any other close kin 6? In our language we often find
statements where we claim a (dead) body, i.e. 'In the absence of any close kin,
Lily who is a friend of Mary, has come to claim the body of Mary', or no one so
far has come to claim the dead body.' In the first sentence, does Mary or
Mary's corpse become some kind of property that is claimed by the family or a
friend; or as in the case of the second sentence, is the dead body a "thing" that
is not yet being claimed by the owner? Dead bodies are not people, then, are
dead bodies "things"; even if" ...they may be human">, what kind of humans
are dead bodies that has to be claimed (from some authority/institution)?
Claiming something, i.e. either a dead body or a thing from some authority or
institution renders a legal status to the object. Dead bodies in that case may
be treated like a legal object which when claimed by anyone becomes the
property of the state. Let us analyze Troyer's statement. i.e. "In the eyes of the
law many necrophilia cases, a dead body becomes a kind of "property" for a
2
F., Idorenyin Esikot, Peter K. Bessong, and Emmanuel E. Ette. "An Examination of
Spinoza's Moral Philosophy." GNOSI: An Interdisciplinary Journal of Human Theory and
Praxis
2.1 (2019),
pp.
10.
3
John Troyer, "Abuse of a corpse: A brief history and re-theorization of necrophilia laws
in the USA."Mortality
13.2 (2008),
pp.
132.
4
Chris Abakare, "The Origin Of Virtue Ethics: Aristotle's Views." GNOSI: An
Interdisciplinary Journal of Human Theory and Praxis
3.1 (2020): 98-112.
5
Ibid, p. 65.
6
Ibid, p. 66.
7
Moheb Costandi, "Life after death: The science of human decomposition." The
Guardian
(2015),
p.
05.
i06
Vol. XIII, no. 3/September,
2020
next -of-kin" with specific emphasis on the concept of "property". This
statement does lead to serious moral questions as well but such moral issues
will be treated separately. These controversies surrounding dead body is what
these work attempt to unveil.
Claiming a Person's Body
How should we treat the idea of donating unclaimed dead bodies to
medical institutions or hospitals for the purpose of research or organ
transplantation? Perhaps the safest answer to this question would be that
such unclaimed dead bodies which are used for research and organ
transplantation add to the betterment of human kind - its longevity and well-
being. In such a case, an unclaimed body becomes the property of the state
(without any further ethical or moral dilemmas regarding the status of a dead
person [dead body] as a property or object). The debates across most cultures
against the idea that someone may be the exclusive owner of a dead body or
its remains are motivated by the concept that the only lawful owner of a body
is nature - "earth to earth, ashes to ashes, dust to dust." However, this
principle, "earth to earth, ashes to ashes, dust to dust" came into question
when in
1998,
an artist, named Anthony Noel Kelly was arrested for the theft
of anatomical parts from Royal College of Surgeons''. Kelly did not deny the
charge that he removed the specimens from the college basement but he
denied to plead guilty as the common law in England still did not consider
dead bodies or remains of human beings as something that can be owned by
someone. Judge Rivlin, however, said that it was a case of theft as the
anatomical specimens technically belonged to the Royal College of Surgeons
because of the "skilled work" carried out upon these specimens by a surgeon
of the previous generations. The case of theft against Kelly was based upon the
fact that he intended to deprive the owner of its property permanently by
taking away the body parts dishonestly. Thus, a human body which is
otherwise the natural property of nature was given to the college as its
property on the basis of the fact that "skilled work" was carried out upon
those specimens.
Let us refer to one more case to understand the ownership policy of dead
bodies. In the year
1996,
the city of Liverpool woke up to the Alder Hey Organ
Scandal which allegedly kept several miscarried foetuses and body parts of
children (who died after being operated for cardiac problems) without the
knowledge of the parents. It could be possible that Alder Hey Hospital or
many other children's hospital in England kept the organs of the deceased to
carry out medical research work. But what was unacceptable by the court of
law, society and the family of the deceased that the hospitals and the research
8
Benedict Le Vay, Eccentric London: The Bradt Guide to Britain's Crazy and Curious
Capital. Bradt Travel Guides,
2007,
p.
68.
9Ibid, p. 69.
~ - Multidisciplinary Research Journal
centres possessed the organs without the consent of the family of the deceased
- who are the rightful owners of the bodies or the remainsw. Medical
historian, Dr. Ruth Richardson said that human corpse has a "commercial
value"and it is important to ensure that a human body or its parts are never
bought or sold». Organs or bodies can be used for "skilled work" only in case
of "donation" or if there is none to claim a body. However, the idea of
"donation" may expose several loopholes in the absence of sufficient legal,
medical, social and philosophical research on the concept of "consent" and
"ownership of the body".
These landmark cases in England however, did not bring any change in
the Common English Law which still maintains a "no-property rule"
regarding the dead bodies. The above mentioned two cases were treated as
cases of theft, yet theft necessarily requires an owner from whom something is
being stolen. These judgements tried to moralize the cases as "skilled work"
(Kelly v Royal College of Surgeons) and outraging the sentiments of the
parents, family and the society (in the Alder Hey Organ Scandal)
12.
Nonetheless, it cannot be denied that there is an active sense of ownership
(however, subdued or unconscious it could be) regarding a dead body. Thus,
the question still lingers - who is the owner of the dead body? It is either the
family of the deceased or the state (in the absence of a claimant) owns the
body. Unlike the English law, most American states and also in India, the
dead body is viewed as a quasi- property of the survivors of the deceased for
the purpose of providing a decent burial (a right of the dead as far as the
Indian law is concerned). Thus, the "quasi-property" right over the body
objectifies it and strips the body of its identity as a "person".
The dead body is then only the human body which is objectified as a
property, i.e. once the person dies, her body essentially becomes an object
which is either owned by the kin or the state; however, this dead body is not an
object or a property similar to a piece of land, a car or any other article that a
person (in her lifetime) or the state may own. There is an essential sense of
moral and ethical obligation attached to ourconcept of "person". The human
body is objectified, but it is objectified in such a way that it fits the parameters
of our sense of morality and ethics-a. A piece of land, clothes, or car not
necessarily has to be put at a pedestal that should conform to the ethics of the
human body. Thus, a human body post death is owned either by its family or
the state but not in the way an inanimate object is owned. The corpse, although
inanimate, still claims to the essence and dignity of life through its association
with the living. To say that an unclaimed corpse is not the property of the state
10
Floris Tomasini, Remembering and disremembering the dead: Posthumous
punishment, harm and redemption over time. Springer Nature,
2017,
p.
106.
11
Ibid, p.
109.
12
Sean Wilentz, No Property in Man. Harvard University Press,
2018,
p.
64.
13 Dennis OUo. "Ethics of Posterity for Environmental Development of the Niger Delta."
GNOSI: An Interdisciplinary Journal of Human Theory and Praxis
3.3
(2020),
p.
94.
:toB
Vol. XIII, no. 3/September,
2020
is to unnecessarily attach a sense of morality to the fact that the unclaimed
bodies are kept by the state for "skilled works". So far, the right to dignity of a
corpse in terms of a decent burial and hence, the ownership of the body seems
to be the only dignity that is accorded to the body. If we agree with the ideas of
the American and the English court that the dead body is devoid of any feelings
to be outraged or robbed, then any act of mutilation, necrophilia or desecration
has to be treated as an act of vandalism to the property of the owner and not an
attack to the dignity of the dead body. A decent burial is the only claim of a
dead body's right to dignity. However, there is another category called the
"dead people" other than the deadbody.
A
Dead Person's Claim to Dignity
"Dead person" is a linguistic category, i.e. a certain entity that exists in
our language and our way of addressing those who have died=. But in spite of
being a category that technically exists in our language, it represents the
"dead" who do not have any material body or anatomical remains to reach out
to the corporeal world. The word "person" is inherently attached with the
identity of a human being, irrespective of whether she is dead or alive. The
notion of death and dying is such an essential concept of a human life that a
dead body is not a requirement to emphasis upon the inevitability of the
condition called "dead" for all human beings. However, as we have seen, the
dead body is an important entity of medical, social and philosophical research.
A dead body can be harmed in many ways - by digging a grave,
mutilating, desecrating a body, the act of necrophilia, trading dead bodies or
its anatomical parts and keeping a body parts without the consent of the
family or concerned authority (or as discussed above, in harming a dead body
we attack the emotions and /property of the owner, i.e. the owner of the
corpse). These are the circumstances under which we demand that the corpses
be accorded with their right to dignity as the "body" whether alive or dead are
an embodiment of our collective sense of us, and our idea of morality, ethics
andhumanity i.e. an assurance of the inviolability of the (dead) "body" is the
tangible embodiment of our concept of harmony in the society.
"Dead person" can be both a tangible and an intangible category (the
corpse or any anatomical remains renders the quality of tangibility to the
"dead person"). As mentioned above, the violation of dignity to the corpse in
terms of attacking the dead body (mutilation, desecration, trade and
necrophilia) is directly conceivable by the living as one can relate with such
violation through the imagery of the "body" (even if it is treated as
vandalising the property of the living). Thus, the corpse, body or remains
provides us with a tangible entity that can be violated and hence, requires to
14 Samuel Akpan Bassey and Emmanuel Efem Etta. "Body and Personhood: A Study of
Dignity and Identity in Connection to the Dead." Multidisciplinary Research Journal, XIII.2
(2021),
p.
17.
~ - Multidisciplinary Research Journal
!log
be protected (either to protect the property of the owners or the sense of
morality in the society). However, in case of an incorporeal entity like the
linguistic category called the "dead person" the idea of violation of dignity
and protection may get complicated because of the absence of any
materiality. In relation to such an absence one may ask: firstly, what can be
accorded with dignity when the body is unavailable; and secondly, can such
an incorporeal entity be subjected to violation and hence would require to be
protected from violation? The questions who or what can be ascribed dignity
and protected from violation of dignity is presupposed by the question of
what is that feature, character or quality that needs to be dignified and/or
protected? It is certainly not a body or a bodily remains since the subject in
question is incorporeal entities called "dead persons".
The aspect which is often vulnerable to violation in a dead person is her
"reputation" and "will". Different countries have different approaches
towards the reputation and will of a dead person. The D.S. law takes a very
stringent look towards the "reputation" of the dead as it says that "the dead
don't hear" (Saunders
2008)
and any slander is a matter only between those
who are living. On the other hand, the German law says that "death does not
stop the state's duty to protect individuals from assaults on human
dignity'vs. Thus, the element in question here is reputation and will.
However, one may ask: (1) should we protect the reputation of the dead at
the cost of the freedom of the living?
(2)
Do we have any obligation towards
the dead in terms of protecting their reputation and respecting their will? As
we attempt to unravel this, it is important to note that there is a natural
contention between the ideas of an "individual's reputation" and the "right to
freedom of expression." Such a contention becomes even more conflictual
when the subject of protection is an entity which as such does not have any
tangible corporeal value.
Posthumous Dignity
Defamation is treated as a serious offence to the concept of human right
to dignity (almost) universallyic. However, there is a difference between
slandering someone who can defend herself and defaming someone who
cannot - in this case a dead person. Equations seem to change drastically
and often beyond rational argument the moment a dead is put to analysis.
Firstly, a dead can never know that she has been harmed through
defamation; secondly, a dead person cannot react to defamation; and
thirdly, under such circumstances, does it even make sense to say that a
dead person can be defamed and thus, requires protection against
15 Doris Schroeder and Abol-Hassan Bani-Sadr. Dignity in the
eist
century: Middle east
and west. Springer Nature,
2017,
p.
162.
16 Mathias Klang, and Andrew Murray, eds. Human rights in the digital age. Routledge,
2016,
P.43.
HO
Vol. XIII, no. 3/September,
2020
defamation? Defamation laws for the dead have been an extremely
complicated legal area, primarily because of the status of the "subject", i.e.
the dead person». Philosophical analysis on this subject has to be derived
from the legal cases as courts across the world have been dealing with
defamation cases for centuries. Human being's sense of dignity and its right
to dignity has provoked the legal arena to think and re-think upon the
subject of defamation every time it has come across with one such case. The
posthumous personality right comes under serious scanner because it is
difficult to categorize the dead along with the living (the living can be aware
of libel and slander and thus, can be affected by such defamation in their
lifetime). However, it is difficult to pursue a situation where a dead person
gets affected by defamation. This situation is very similar to the situation of
subjecting a dead body to mutilation, necrophilia or any other form of
desecration. The dead body, like the disembodied dead person cannot feel
any form of desecration, and hence, "harming" a dead body or a dead person
where the dignity, personhood and emotions of a corpse or a dead person are
outraged is difficult to conceptualize rationally. But, in relation to such
unawareness on the part of the dead, one need to enquire about the
consequences of a similar unawareness on the part of the living, i.e. for
instance, imagine a situation where one (alive) is subjected to slander but
he/she never came to know about it in his/her lifetime. Will his personality
and dignity be outraged by such disparaged situation when he/she is
unaware of it? Before addressing this question, let us look into the
posthumous personality laws in some of the societies of the world.
Libel and slander belong to the English Common Law, so as the Nigerian
Law, but in India they are not treated as different from each other. Saxena, Dr
Ambrish, and Prince Shadwal wrote that in India, defamation can be treated
as both civil and criminal offence; however, the treatment of defamation as
civil and criminal offence is very unusual because defamation as a crime is
almost non- existent in the world legal circle-s. Generally, the posthumous
personality law all over the world is very similar. Reputation is considered as
extremely personal and hence, one follows the English tort law regarding the
posthumous personality rights. Thus, the English Common Law says
"personalis moritur cum persona" i.e. any personal action dies with the
person itself. In his article, "Dignitarian Posthumous Personality Rights - An
Analysis of D.S. and German Constitutional and Tort Law, Hannes RosIer
wrote that the "actiopersonalis moritur cum persona" indicates that a dead
person has no claim to personality rights; all her personality rights technically
17
Adrian Leka, "Defamation Laws and Practice in the Age of Internet in Albania."
European Journal of Interdisciplinary Studies
4.3 (2018), p. 64.
18
Saxena, Dr. Ambrish, and Prince Shadwal. "Criminal Defamation and its
Constitutional Validity: Case Study of Judicial Interpretations."
Amity Journal of Media
&
Communications Studies (AJMCS)
5.3,
2016,
p.
75.
~ - Multidisciplinary Research Journal
111
die with her death-s. This merely allows the heir to sue the defamer for
damaging the memory of the dead. The deceased thus, has no surviving
personality rights and the family or the heir cannot bring any suit of
defamation if the statement does not even indirectly affect the survivors of the
deceased. However, this rule has been continuously questioned. A defamation
suit (either posthumous personality right or personality right of the living)
works only under the conditions if firstly, the defendant has made a false
publication against the plaintiff, secondly, the statement is of, or concerning
the person who files the defamation suit, thirdly, such a statement has
destroyed the plaintiffs normal functioning in the society and maintenance of
relationship with a third party, and fourthly, the defendant has acted with a
certain level of blameworthiness (Hall-Lipsy
&
Malanga 2017). However,
notice that the plaintiff (naturally) has to be a living person (for posthumous
personality rights) and the plaintiff has to be the one who is affected by the
defamatory statement/ s made by the defendant.
Although the impetus for defamation suit comes from the idea of
protection of reputation, the concerned subject is the living and not the
dead. The law strictly maintains that any personality right dies with a
person's death and hence, a dead cannot be defamed as death strips one of
any feelings of slander, libel, outrage. Historically most courts of law across
the world reject any defamation right for the dead because generally the
cause of action in the case of a defamation suit is a personal attack and it
cannot survive death; furthermore, the reasons of such causes of action are
difficult to establish and "allowing a cause of action for defamation of the
dead would hamper historical research'vo. The fact about hampering
"historical research" may lead to another recent legal controversy known as
the demand for "Right to be forgotten". According to the demand for the
"Right to be forgotten?», a person may choose the kind of information that
will be available about her (mainly in the internet). This right allows an
individual protection against stigmatization because of some actions
performed by her in the past. Such a right as the "Right to be Forgotten" is
controversial because while it defends one's right to freedom, at the same
time it also restricts the others to exercise their right to freedom in accessing
informationes. This particular right may raise questions about our approach
to history, memory, relationship with the past and our right to freedom, such
as (i) I may choose to forget something personal, but how should we deal
with erasing/hiding collective memory of some incident (that the
19 J an Halberda, "Dzieje doktryny actio personalis moritur cum persona w angielskim
common law." Krakowskie
Studio
zHistorii Pafzstwa
i
Prawa 3
(2011),
p. 54.
20
Mary Catherine Joiner, and Ryan M. Seidemann. "Rising from the Dead: A
Jurisprudential Review of Recent Cemetery and Human Remains Cases." Ohio NUL Rev. 45
(2019),
p.
5.
21
Ibid, p. 8.
22
Ibid, p.
10.
U2
Vol. XIII, no. 3/September,
2020
implementation of this right would ensure); (ii) from what Archimedean
point should we choose the memory for preservation and deletion; and
(iii) what are its repercussions on the right to freedom?
Nonetheless, returning to the question of posthumous personality right,
as mentioned before, most courts of law of the world does not approach the
subject from the perspective of the dead. In the landmark case of Mrs. Pat
Sharpe v Dwijendra Nath Bose, the court ruled that "Even if Netaji is dead, it
is defamation because the imputation would have harmed his reputation if
alive and the imputation must be said to have been intended to be hurtful to
the feelings of his family or other near relatives, thus, in any view of the
matter the words used do amount to defamation'va,
Thus, as far as the posthumous personality right is concerned it is
similar to the right to dignity of a corpse where any form of claim to dignity
is primarily a right of those who are alive and not the deceased. It is not just
in our legal system, but even our rational approach to the dead cannot
categorize them as entities that have any claim to such rights. Notions such
as "defamation" or "praise" are presupposed by the ability to feel them and
also judge them for what they are, and such an ability to feel and judge
something is vested with the living. We raised a question a few paragraphs
before going into some of the cases in India that dealt with the issue of
posthumous personality right: We (alive) are subjected to slander but we
never came to know about it in our lifetime. Will our personality and dignity
be outraged by any form of disparaged situation if we are unaware of it? This
question should either be necessarily approached from the perspective that
"defamation" and "dignity" are concepts which are independent of the
subject's knowledge, or these are human agency dependent concepts. The
concept of "defamation" and "dignity" does need a human subject but these
are primarily the subjects of our moral and ethical understandings. We may
not be aware of the libel about us, but that does not mean that we are not
defamed or wrongly portrayed. In the case of "defamation" or "dignity" we
are essentially pursuing the concept of "personalities". The word
"personality" (as it is known) refers to the qualities and features that forms a
person'sdistinct character. A personality does not die; also, the idea called
"personality" constructs our social, ethical structure. For the question,
whether I can be defamed if I never come to know about it is not so essential
to the subject who is being defamed, but it is important to the socio-moral
structure (called a society) that human personalities create. Harming the
reputation of a dead person, or harming the reputation of someone (alive)
who does not know about it are almost similar cases where the personality
right is being attacked, and this "personality right" (post-mortem or pre-
23
Prashant Kumar Varun, "Fundamental Right to Decent Burial and Right to Reputation
of Deceased: A Legal Study during Covid." Indian Journal of Law and Legal Research
2.1
(2021),
p.
98.
~ - Multidisciplinary Research Journal
113
mortem) forms the essential crux of our notions of morality and ethics
24.
However, although the "personality right" is significant from the perspective
of the notion of morality towards the concept of "personjpersonhood", this
right can also pose threats to the right to free speech. Furthermore, the
matter that requires to be addressed in relation to posthumous rights is the
right to protection of one's interests and will. Protecting the interests and
will of the dead is a way of "providing them with a form of virtual
immortality'vs. Thus, the question now is: how far is the society and the law
ready to take the issue of protection of posthumous rights, interests and will?
Should a dead person have the right to exert control over what happens to
her body andproperty?
Posthumous Control
It is a rational belief that death is the end of any kind of conscious
existence. Should it then not also be the end of any kind of legal existence?
We have been grappling with this question from the very beginning of the
thesis. The question "Can dead people have right?" is a paradoxical question
because not only does it challenge our rational concept of "death", but also it
questions the moral and ethical structure of our society and legal system.
One of the key features of our moral system is to respect the interests and
will of the other. But, should we be respecting the will of the dead at the cost
of the living? Thomas J efferson said:
That our Creator made the earth for the use of the
living and not of [the] dead; that those who exist not can
have no use nor right in it, no authority or power over it,
that one generation of men cannot foreclose or burthen
its use to another, which comes to it in its own right and
by the same divine beneficence; that a preceding
generation cannot bind a succeeding one by its laws or
contracts; these are axioms so self-evident that no
explanations can make them plainer: for he is not to be
reasoned with who says that non -existence can control
existence or that nothing can move something=.
From a rational point of view, Jefferson's approach to the dead does not
require any explanation because the nature of the condition called death is
self-explanatory. Technically the dead cannot control the living. However,
Thomas Jefferson is not talking about a physical control that the dead might
exert on the living. Posthumous control over the living binds the living by
24
Francis Tete and Chrisantus Kanayochukwu Ariche. "Virtue Ethics as Philosophical
Foundation for Environmental Education."
GNOSI: An Interdisciplinary Journal of Human
Theory and Praxis
4.1
(May)
(2021),
p. 87.
25
Ray D. Madoff,
Immortality and the Law.
Yale University Press,
2010,
p.
4.
26
Ibid, p. 6.
Vol. XIII, no. 3/September,
2020
moral obligations towards the dead. But should our legal system be
endorsing such a posthumous control over the living? If the dead lose all
capacities of conscious existence at death, why the society or the legal system
should be worried about protecting and respecting their pre-mortem wills?
How rational will it be to safeguard the dead and actualize their will at the
cost of those who are alive?
Control over Body
Our "body" is not only the quintessential part of our identity, but it is
also our most prized property. During life, we have the fundamental right to
control our body (whichever manner we want to) and other than us no one
else can possess our body. But do we also have a right to control our body
after death? We have already discussed that a dead body becomes a kind of
property of the living, i.e. either the closest kin or the state authority. All
decisions regarding the dead body are taken by those who are alive. But what
if a person dies leaving instructions to the living to treat her body in a certain
way mentioned by the dead person (during his lifetime)? Can a person have
any controlling right to what happens to her body after death? What could
be the extent of such a control?
History has mentioned of individuals who could direct what happens to
their body after death. But does it not depend upon the whims of the living?
Technically We may have certain wishes regarding the preservation or
cremation of our body, but what happens to that body after our death is
totally at the disposition of the living.
J
eremy Bentham wished that his body
be preserved and displayed in a glass cabinet at the University of London=.
Sandra West wanted to be buried in her Ferrari in her lace night gown and
the seat slanted comfortably. Her burial request was carried out as she
wished=. Such happenings from the past give an impression that we may
have the rights over our body even when we are dead, or more precisely, we
have the right to execute control over the living. However, this may not be
totally true. There have been numerous incidents when a person's burial
request has been ignored. For instance, take the case of Albert Einstein.
Albert Einstein wanted to be cremated. But upon his death, before
cremation, a pathologist (who conducted the autopsy) operated upon his
body and removed his brain without any prior instruction from the scientist
himself or his family. The pathologist preserved the brain in pieces in glass
jars and distributed it to various scientists for study. The author of "Peyton
Place", Grace Metalious instructed in her will that her body be donated to
the Dartmouth School of Medicine. However, upon her death, her family
27
Ngaire Naffine, "When Does the Legal Person Die-Jeremy Bentham and the Auto-
Icon." Austl.
J.
Leg. Phil.
25 (2000),
p. 79.
28
Ray D. Madoff, "Immortality and the Law.", op.cit., p. 16.
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115
refused to oblige her will regarding her
bodys»,
But the executor of the
Metalious' will tried to ask the court to respect the last wish of the author.
The court refused any such requests and asked the family to conduct a
funeral service.
The value of a corpse, either as a body or its state called "dead" is
difficult to conceive, both in terms of law and societal standards of morality,
ethics and obligation. A judge described this challenge of creating laws for
the dead as: A corpse in some respects is the strangest thing on
earth. A man who but yesterday breathed and thought
and walked among us passed away. Something has gone.
The body is left still and cold, and is all that is visible to
mortal eye of the man we knew. Around it cling love and
memory. Beyond it may reach hope. It must be laid away.
And the law - that rule of action which touches all
human things - must touch also this thing of deaths».
As mentioned before, legal rules regarding the corpse are primarily
concerned about who controls the disposition of the body and a proper
dignified treatment of the corpse. Regarding the control over one's own
(dead) body, the legal system of most countries of the world follows the
English Common Law which states that a person cannot have any form of
property interest over his or her own dead body. Madoff wrote, "The failure
to recognize a property interest in a dead body has proven to be asignificant
impediment to the ability of an individual to control what happens to his or
her body after death">.
"De Mortuis Nil Nisi Borum"
Returning to the concept of the dignity of the dead, we often come
across the phrase which says: "De mortuis nil nisi borum" meaning, do not
speak ill about the dead. But why should one not speak ill about the dead.
What is the utility of covering the truth only because the concerned subject is
dead? Is our obligation to the dead more important than our right to
freedom (freedom of speech)? Often, questions such as "can dead people
have rights" or "why should one not speak ill about the dead" is brushed
away at being irrational. Death is not a subject which cannot be conceived in
life, no matter how inseparable it is from life; and furthermore, one has not
found any scientific evidences (till date) that can confirm that dead people
are affected by the deeds of the living. Technically speaking, our concern
with death and the dead is a matter of a relationship that is based upon the
29 Ibid, p. 18.
30
Ibid, p.
20.
31 Ibid, p.
21.
u6
Vol. XIII, no. 3/September,
2020
thin threads of indulgence with one's own future death, rationality and
morality. Thus, perhaps, instead of asking why one should not speak ill
about the dead, one should rather ask why one speaks ill about the dead. If
the dead is devoid of any conscious existence, then it does not matter to the
dead whether someone praises her or not, obliges her wishes or not, harms
her or not and protects her or not.
Our sense of rationality towards ourselves, i.e. our sense of well-being is
a guiding factor in determining our relationship with death and the "dead".
Intrinsically, death or a dead person is the future of the living present. The
aspects of reputation, dignity and rights are the features of the living.
However, we cannot conceive of a state where we will be devoid of our
essential humanness, i.e. our dignity, reputation and rights. The questions -
why should we not speak ill about the dead or why do we speak ill about the
dead are related to the aspect of memory. What essentially remains of a
person is memory - reputation of a dead person is affected by how we
choose to remember a person. Remembering is therefore, an essential aspect
of our relationship with a person, either dead or alive. The kind of moral,
ethical, social and legal obligations that we believe we have towards a dead
person is in reality the moral, social and ethical obligations that we have
towards ourselves as the future dead; and this sense of moral and social
obligation is guided by our sense of rationality that renders a sense of
personal well-being to us.
However, this sense of personal well-being or self-interest is guided by
the fact that there is a systemic interrelation among the various interests of
the people who share a common space called the society, i.e. our sense of
morality and ethics and obligation is guided by the fact that we are always
ought to consider and include the interests of the other within our own space
of interest. But the question is whether there can be a valid rational ground
for obligation, i.e. if the obligation in question is a moral obligation (which it
is), then the question should be what exactly a valid moral principle is? One
possible reply to this question could be that
x
can be a valid moral principle
if it ought to be (morally) endorsed by people. The precondition for valid
moral rules and reasons is that such "moral rules and reasons has to be
endorsed by people." However, this is a tautologous reasoning.
Nicholas Rescher in "Rationality and Moral Obligation" writes that if "a
moral rule is valid" and such a moral rule is implemented by people in
general, the result "would be conduce to the best real interests of the people-
in-general">. However, there would always be exceptions, that is, non-
beneficiaries and such non- beneficiaries "must not be identifiable
individuals." The identity of such individuals, according to Rescher, must be
32 Nicholas Rescher, "Rationality and moral obligation,"
Ethics Matters.
Palgrave
Macmillan, Cham,
2021,
p. 84.
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112j
veiled in the "unpredictability that prevails in human affairs"33. Thus, we
have come to a sufficient condition regarding moral principle that people
ought to endorse a certain moral principle whenever/wherever such a moral
principle, if it were to be adopted and implemented in general, would
"conduce to the best (real) interests of people in general.
Our obligation towards the dead (if any) is a part of our moral principle.
The idea that the dead have a bodily and "personality" dignity is a part of a
conditioning that the dead are valid entities of the system called society.
Rationally speaking, such a thought might not hold any scientific validity, but
all our thoughts on death are based on the grounds of morality. Let us divert
abit from the initial question of this section, that is, why should we not speak
ill about the dead; and consider a question: are we morally obligated to keep a
promise made to a person who now is dead? A question of this kind can be
approached from dual perspectives, that is;firstly, our moral obligation to the
dead, and secondly, understanding the personhood of the dead (if any).
However, before asking whether we are morally obligated to keep a promise
made to a person who is now dead, we need to ask if promise keeping is a
matter of moral obligation or acknowledgement of personhood (in oneself and
the other). Traditionally speaking, honouring a promise is considered as a
moral obligation. But if a certain action is immoral, then undertaking the
action itself is an immoral act. Thus, one should also be asking: should we
have any moral obligation to oblige/or do what is intrinsically immoral, for
example a murder? But nonetheless, such moral questions do not fall under
the purview of the current research. But the question, whether we are morally
obliged to keep a promise made to a person who now is dead is intrinsically
linked to the question of whether we are morally obliged to the dead in any
sense. Technically saying, it will again not make sense to say that our moral
values towards the deceased and the future generation is similar in nature and
degree. Thus, if we want to combine the two time frames under the same
moral and ethical gamut, we would notice that our association with the past
(generation) and sentiments for the future (generation) belong to two
different categories. For instance, it might make sense to say that we should
preserve the natural resources for our future generation because they will be
benefitted from it, but it certainly does not make any sense to say that I must
preserve the environment for my ancestorsa-.
Jeremy Wisnewski in his essay, "What We Owe to the Dead" wrote,
"Obligations to the dead seem to be far-reaching indeed. The dead have set
many ends, and there are many dead. Centuries of obligation seem to fall
upon the shoulders of the living: from a grandmother's wish to be
remembered on her birthday to the desire of an ancient Greek to have his
33
Ibid, p. 33.
34
Samuel Akpan, Bassey, "Technology, environmental sustainability and the ethics of
anthropoholism."
Przestrzeti Spoleczna, 1, 19,
p. 4.
uB
Vol. XIII, no. 3/September,
2020
works read throughout historyae. There are perhaps as many obligations as
there are persons who have set foot upon the earth">.
From the perspective of our analysis so far, it would be absurd to infer
that my dead grandmother would be harmed if I did not keep a promise that
I made to her when she was alive. H. Conway and K. McEvoy in their essay
"The Dead, the Law, and the Politics of the Past" published in
2004
wrote
that death transforms a person into an object; and while the dead (in terms
of its body) can still be classified (biologically) as a human it is surely not a
moral, conscious beingsz. Thus, it would hardly matter to a dead whether a
promise made to her while she was alive is fulfilled. Coming back to the
question: why should one not speak ill about the dead? A question of this
nature can be approached on the paths of the previous question, that is, are
we morally obliged to keep a promise made to a (dead) person when he/she
was alive? Slandering or defaming a dead person will not harm him/her as
he/she is not a conscious moral being any more. Furthermore, the argument
that since the dead cannot defend themselves, thus, one should not speak ill
about them, is tautological in nature. Thus, the essential argument which
logically follows from here is that since the dead do not have any
consciousness of experiences, they cannot be considered as moral beings
that can be harmed; and hence, technically we (the living) do not hold any
moral obligation towards thedead.
Human Temporality and Memory
Almost all our discussions and analysis regarding the dead, so far, we
could say that the primary focus seems to be concentrated upon either
proving or disproving the "conscious" status of the dead. But proving or
disproving the "conscious" state of the dead is a futile exercise as far as
philosophy is concerned. We may rationally deny any state of being to the
dead, but any philosophical analysis regarding death and personhood of the
dead is not about the "being" which is devoid of any consciousness of
experience; rather the intrinsic focus of such philosophical analysis is
essentially the "being" that is capable of contemplating about death. A sense
of the "self' is what makes a being capable of contemplating about death and
her very "being" itself. Nicolas Russell in "Collective Memory Before and
After Halbwachs" published in
2006
said that it is memory which has the
capacity to create a sense of self. Questions about moral obligation towards
the dead are essentially thoughts on the moral obligations towards one's own
35 J. Jeremy Wisnewski, "What we owe the dead." Journal of Applied Philosophy
26.1
(2009),
p.
56.
36
Ibid, p.
53.
37 Kieron, McEvoy, and Heather Conway. "The Dead, the Law, and the Politics of the
Past." Journal of law and society
31.4 (2004),
p.
562.
~ - Multidisciplinary Research Journal
Ll11l
"being" and the memory of the "self' which may outlive the "being"3
8•
Memory studies ever since the Greeks and especially by Halbwachs have
brought significant changes in the way a social science subject is now being
approached. Halbwachs's philosophy of "collective memory" has rendered
the concept of memory with a kind of character which is capable of granting
people eternity of lifew. Although in the modern period or a little before
then, memory and immortality shared a metaphorical relation, in the archaic
Greek worldview, memory and the concept of immortality were closely
linked to each other as inseparable elements.
Nicolas Russell wrote that the idea that collective memory has the
capacity to grant to people, at least to their names and reputation is an
extremely significant analysis of the early memory researchers primarily
because it rendered memory an independent character distinct from the
"contingencies of human experience". This collective memory transcends
human temporality and obtains its feature of immortality from its "inherent
ethical and aesthetic value which naturally draws posterity to it and thus,
sustains it"4
0•
Nicolas in his review of the science and philosophy of
collective memory and memory in general says that there have been terms
such as "La memoire des hommes" and "La memoire de la posterite"
(memories attributedto groups), and "une memoire eternelle" and "une
memoire perpetuelle" (implicitly attributed memories to groups) which
indicated towards the understanding that memory that that element which
passes from one generation to the other and it has the capacity to outlive any
individual. This particular idea that memory has the capacity to outlive any
individual human being is significant from the perspective of the question of
why one should not speak ill about the dead (or why does anybody speak ill
about the dead who do not possess any essence of conscious existence).
Studies on the concept of memory (ever since the Greek era) have
rendered the analysis that memory essentially has the character of a self-
sustaining entity and is thus, independent of the transitory nature of human
existence and memory and also the fact that which group or person
preserves the memories in which way. However, Halbwachs has given a very
different analysis of memory in his work named "The Collective Memory".
According to Halbwachs, the science of remembering is dependent upon the
dynamics of the groups, individuals and families. My social interaction with
a particular "group" would determine how I might remember events,
incidents and people from the past and what is it that I may remember-s.
Thus, for Halbwachs groups have the capacity to reconstruct memories.
38
Nicolas Russell, "Collective Memory before and after Halbwachs."
The French Review
(2006),
p.
804.
39 Jeffrey, Andrew Barash, "Collective memory."
The Routledge handbook of philosophy
of memory.
Routledge,
2017,
p.
267.
4
0
Nicolas Russell "Collective Memory before and after Halbwachs.", op.cit., p. 7.
41
Ibidem, p.
42.
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Vol. XIII, no. 3/September,
2020
If memory truly has the capacity to transcend human temporality then it
should be presupposed that the desire for immortality (as it has been
mentioned by Nicolas Russell that it was believed by the archaic Greek
worldview) can be fulfilled by keeping once memory alive and untarnished.
We speak about the dead, either good or ill. While the praises do not affect
the dead in any ways, the ill words also should not affect them. Yet we often
tarnish the image of a dead person not with the intention of harming the
person per se, but it is always an unconscious act of attacking the memory of
the person. In the study of "death" and the "dead", memory and our
approach to the concept of body and personhood plays an important role in
forming a conscious approach regarding the aspect of moral and ethical
obligation and role towards the dead. It may be fairly derived (on the basis of
the analysis made so far) that the statement "De mortuis nil nisi borum",
that is, do not speak ill about the dead is intrinsically based upon this desire
of preserving the memory and the reputation of "living" as it is (even after
death). However, with such an analysis regarding the preservation of the
body and memory of the dead, we are left with a significant question
regarding the right to the freedom of speech and art: and that is; wheather
we are supposed to censor our speech, art and representation of history in
order to preserve the reputation of the dead.
Conclusion
Legal obligation towards the dead is essentially motivated by our moral
obligation towards our own selves. This work essentially was an analysis of
our conception of 'reputation', 'dignity' and 'memory' of the dead. It raised
many questions regarding the concept of the dignity of a dead human body
and the incorporeal person (i.e. in the absence of the corpse). One may infer
that the human body or the subject called the person (after death) essentially
becomes an object, i.e. a property of the living. Either one's family or
relative/friends can claim a property right over the one once he/she is dead,
or it is the state authority which owns his/her body. The very phrase "claim
the dead body" renders a sense of objectification to the human corpse which
otherwise was a breathing, thinking and feeling entity (before death). During
one's lifetime one is the owner of oneself, but once dead, he/she cannot
claim to own any right (legally) over his/her body - it's burial, preservation
or donation (or any kind of commercial or non-commercial usage). One's
control over his/her body is a matter of temporality - it is limited by the
aspect of death. However, one as a dead person may execute some control
over his/her material property - i.e. the disposition of one's property after
his/her death. It is seen that a legal will regarding one's "body" mayor may
not hold any legal obligation for his/her surviving kin, but a legal will
describing the details of the disposition of his/her material property has
immense value and obliges the law and the survivors to follow it. As far as
the dignity of the dead is concerned (whether corporeal or incorporeal) it is
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121
recognized by the law that a dead person's right to dignity is limited
primarily to her right to a decent burial; any further right claiming a right
over one's body, protection against defamation and such others are
subjected to the whims of the living and the law. The posthumous-
personality right is generally not recognized. However, even if all such rights
and claims do not hold any legal validation, it cannot be disregarded that
there is a growing philosophical, sociological and legal attention regarding
the claim to personhood of the dead by the living. We conclude that our
concept of memory of the self and its continuity as a "conscious moral being"
inspires our thoughts and queries regarding death and our post-mortem
personhood.
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