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A dead man is popularly believed to be capable of experiencing both good and ill fortune -- honor and dishonor, and prosperity and the loss of it among his children and descendants generally -- in exactly the same way as if he were alive but unaware or unobservant of what was happening.

Aristotle, Nichomachean Ethics 1.10

Can dead persons be harmed? Can they be said to have interests? Can any justification be made for the claim that the reputations or wills of the dead should be respected? Plausible, well-considered arguments can be presented to support either affirmative or negative answers to these questions. And yet, as we shall see, either response to each of these questions may appear, for clear and evident reasons, to be strange and outlandish; in a word, these questions seem to be such that no answer can put us fully at ease.

In two recent papers, "The Rights of Animals and Unborn Generations" (hereafter, "Rights") and "Harm and Self-Interest" (hereafter, "Harm"),¹ Joel Feinberg has argued, carefully and persuasively, that although death is the total and final end of the person, one may still be "harmed" or have his "interests" invaded after his death through such iniquities as the abrogation of his will, the voiding of contracts, the breaking of promises, or the spreading of false rumors. While I would not for a moment deny that it is morally wrong to do such things, I will, in the first half of this paper, contest Feinberg's characterization of these wrongs as "harming the dead" or as "contrary to the interests of the dead." The dead, I will argue, have no interests and are beyond both harm or benefit. But if the defamation of, or the breaking of promises to, the dead are properly said to be morally wrong, how might the "wrong" therein best be described and categorized? In the second half of this paper, I will argue that an analysis of the conditions of moral agency may account for an individual's desire to affect events, and to be well thought of after his death. Furthermore, I will argue that warrant for respecting these desires, after a person's death, may be found in the traditional notion of "the social contract." Whether or not my case is successful, there is, I believe, abundant cause to agree, with Feinberg, that the issue of "posthumous interests" and "posthumous harm" presents "a hard case" for disputants on either side of the issue. We turn, first, to Feinberg's case for "posthumous interests."

At the outset of his paper, "Harm and Self-Interest," Feinberg accepts "the orthodox jurisprudential" account of "harm" as "invaded interest" (p. 285), From this he turns directly to the following elaboration of concepts: "A person is harmed when someone invades (blocks or thwarts) one of his interests. A person has an interest in Y when he has a stake in Y, that is, when he stands to gain or lose depending on the condition or outcome of Y. A person's interest in the singular (his personal interest or self-interest) consists in the harmonious advancement of all his interests in the plural" (pp. 285-86). Near the close of the paper, the relationship between interest and harm is reiterated, somewhat more strongly: "It is only in virtue of having interests that people can be harmed, and ... the only way to harm any person is to invade his interests" (p. 302).

In his earlier paper, "The Rights of Animals and Unborn Generation," Feinberg indicates what sorts of beings can and cannot have interests, have rights, and be harmed. "Without awareness, expectation, belief, desire, aim and purpose," he writes, "a being can have no interests; without interests, he cannot be benefited" (p. 61, my emphasis). The previously quoted passages give us warrant to add here the converse rule, that without interests, a being cannot be harmed. Feinberg continues: "without the capacity to be a beneficiary, he can have no rights" ("Rights," p. 61). Feinberg refers to this relationship as "the interest principle." We shall do likewise. These definitions and principles are central to Feinberg's account of posthumous interest and posthumous harm and, I will argue, ultimately paradoxical.

Posthumous Interest and Harm.

In "Rights," Feinberg forthrightly recognizes the difficulty in ascribing rights and interests to the dead.

In "Harm," the tentativeness and the talk of "kinds of fiction" is gone. Thus Feinberg concludes this paper with this bold pronouncement: "Events after death can thwart or promote those interests of a person which may have 'survived' his death. These include his publicly oriented and other-regarding interests, and also his 'self-centered' interests in being thought of in certain ways by others. Posthumous harm occurs when the deceased's interest is thwarted at a time subsequent to his death. The awareness of the subject is no more necessary than it is for harm to occur to certain of his interests at or before death" ("Harm," p. 308).² For all the boldness of this final claim, the paradox remains: dead persons -- persons to whom nothing can happen and for whom no aspect of their completed lives can be altered -- such "persons," says Feinberg, can nonetheless be "harmed" and thus their "interests" invaded. How is such a thing possible? Even worse, what sense can we make of it? Feinberg's arguments for "posthumous harm," and by implication for "posthumous interest," are careful, thorough, elegant, and persuasive. For all that, I will argue, the paradox is not resolved and his arguments fail. However, I will further argue that an examination of our personal and philosophical motives for believing in "posthumous harm and interest" may yield significant dividends for moral philosophy. In particular, this examination may provide clarification of, and warrant for, the fundamental concepts of moral agency and moral personality, and for the theory of the social contract. Through a utilization of these concepts, I will argue, we may account for and justify posthumous respect for the reputation and wishes of the deceased.

Feinberg presents three basic arguments in support of posthumous interest, which I shall call (a) the argument from detachable interest, (b) the argument from the "relationality of life," and (c) the argument from "unaffecting harms."

The Argument from Detachable Interests.

This argument builds on W. D. Ross's distinction between "want fulfillment" and "want satisfaction."³ The fulfillment of a want," Feinberg writes, "is simply the coming into existence of that what is desired. The satisfaction of a want is the pleasant experience of contentment of gratification that normally occurs in the mind of the desirer when he believes that his desire has been fulfilled" ("Harm," p. 302). The distinction between the two concepts can readily be seen when we consider that wants can be fulfilled without satisfaction (as when the achievement of a desired goal proves, in its consummation, to be joyless), or that one can feel satisfaction without fulfillment (as when one is deceived into believing, falsely, that his goal has been achieved). Feinberg contends that "harm to an interest is better defined in terms of the objective blocking of goals and thwarting of desires than in subjective terms; and the enhancement of benefiting of an interest is likewise best defined in terms of the objective fulfillment of well-considered wants than in terms of subjective states of pleasure" ("Harm," p. 303).

We can, I think, accept this distinction and still withhold the conclusion that Feinberg desires; namely, that there may be some interests that persist beyond the annihilation of the interest bearer. Elsewhere, Feinberg has stated his intended conclusion as follows: We must "think of interests as fulfilled only by the coming into existence of that which is desired, and not simply as 'satisfaction of desire' in the sense of contentment in the mind of the desirer when he believes that this desire has been fulfilled." And why not think of interest as such "contentment"? Because, he continues, "It is too late, after all, for a dead man to experience contentment."⁴ Very well, but death has larger implications. Feinberg proposes that posthumous interests may survive to be "fulfilled only by the coming into existence of that which is desired." But "desired" by whom? By no one! (No one, that is, in the primary sense relevant to this analysis.) Death cancels not only the possibility of satisfaction but also the very point of fulfillment.

In proposing a detachment of interests from the life of persons, Feinberg suggests that we "think of all harm as done to interests themselves, and interpret talk of harm done to men and women as convenient elliptical references to, and identification of, the interest that was thwarted or set back" ("Harm," p. 301). But surely, by "interests themselves" he cannot mean interests of no one.⁵ He continues: "It is only in virtue of having interests that people can be harmed, and ... the only way to harm any person is to invade his interests" ("Harm," p. 302). So far, so good. But must we not also affirm that it is only in virtue of being persons (or, minimally, of being sentient), that beings can have interest and thus be harmed? And must we not also affirm that without the sentient interest bearer, there can be no interests at all? As noted earlier, Feinberg seems to say as much (in "Rights," p. 61).

Now I will not deny that it might, in certain contexts (e.g., political or economic), be advantageous "to think of all harm as done to interests themselves..." ("Harm," p. 301; see above). If the purposes of such types of specialized discourse are better served by such a proposal or stipulation, well and good. (Economists, after all, often speak of "markets" with such magnificent abstraction that we must remind ourselves, perhaps irrelevantly, that there are people involved in the myriad particular transactions that make up a "market.") However, having agreed to such stipulations, we may come to discover that they cannot be moved to certain other contexts without introducing conceptual strains or paradox. As I have argued above, and will argue further, talk about the deceased constitutes an inappropriate context in which to speak of "interests themselves." That is to say, while we may casually talk "elliptically" or figuratively about the "interests of the dead," close analysis seems to indicate that, without an interest bearer, such talk is senseless. For if, when talking of abstract "interests themselves" of the dead, we are challenged to "cash in" the abstraction with reference to the interest bearers, we are at a loss. (In contradistinction, economists talking of "markets" may, when challenged, instantiate existing buyers and sellers, albeit these individuals may be "conveniently ignored" in economic abstractions.)

I would conclude, then, that Feinberg is quite correct to point out that our interest are normally oriented to objective fulfillments rather than to subjective satisfactions. But this cannot mean that persons (or at least sentient beings) are not necessary ingredients of there being interests at all. Thus, while it is true that interests are, or may be, fulfilled by objective events and circumstances, these objective conditions are "interests" only insofar as they matter to someone, take away the personal concern or "stake," say by death, and what remain are mere pointless happenings and conditions, not "interests."

And yet, for all this, when the "want to fulfill an interest" is canceled by death, we often feel nonetheless obligated to take the trouble to respect and carry out the previously held wishes of the late want holder and interest bearer. How can this be so? Such obligations, I will suggest, can be accounted for and defended; but not on grounds of "detachable interests."

The Argument that "Life is Relational."

Might not posthumous interests be defended on the grounds that human life, by nature, "relates out" to times and places beyond its immediate locus? Such is the strategy of Feinberg's next argument. He writes: "Because the objects of a person's interests are usually wanted or aimed at events that occur outside of his immediate experience and at some future time, the area of a person's good or harm is necessarily wider than his subjective experience and longer than his biological life" ("Harm," p. 304).⁶ Consider, for example, the "interest" in maintaining a good reputation after death. Such an interest, says Feinberg, is responsive to "a person's desires to stand in certain relations to other people" ("Harm," p. 305).

Once again we have, I think, a perfectly correct premise which fails to deliver the desired conclusion. In truth, our lives are extended by our cognitive, emotive, and conative relationships with persons, places, plans, intentions, and so forth. In some cases, relations can obtain between persons and events that are not concurrent with their lives -- either events in the past (e.g., Jones is thinking now about the trial of Socrates), or in the future (Jones is now establishing a trust fund for his children). Furthermore, in many cases, a person may correctly be said to be "related to" others even after his death (e.g., to those who visit and enjoy the Guggenheim Museum, Solomon Guggenheim retains the relationship of "benefactor," even though he is dead). Nonetheless, the relation "P has in interest in Y" cannot survive the death of the interest bearer -- the relatum "P." But why does this relation dissolve at death, while still others might not? The answer I believe, is implicit in Feinberg's explication of "harm" and "interest" quoted earlier: "A person is harmed when someone invades (blocks or thwarts) one of his interests. A person has an interest in Y when he has a stake in Y, that is, when he stands to gain or lose depending on the condition or outcome of Y" ("Harm," p. 285; see the lead paragraph of Section I above).

A necessary condition of the concepts of "harm" and "interest," as explicated above, is the capacity of the "person" to be affected (i.e., incapable of "gaining" or "losing" stand in the relationship described above? Yet such is precisely the circumstance of the dead. After death, no events can alter a moment of a person's life. Nothing remains to be affected. Recall, too the following passage by Feinberg: "Without awareness, expectation, belief, desire, aim, and purpose, a being can have no interests" ("Rights," p. 61). By this account, it would be appear, the interests that once "extended" a person's life vanish with that life.

Now we may, of course, speak meaningfully of relations with the person who was, but is no more. (Later in this paper I shall do so.) But Feinberg wants more. He contends that interests survive the death of the interest bearer so that the decedent can be harmed by invasion of these interests. And yet, it would seem, by Feinberg's own rule, that if a person cannot be affected, he cannot be harmed. And if not harmed, he cannot be a relatum in the relationship of "having an interest in Y." The phrase "posthumous interest," then, appears to describe, paradoxically, a "relation" with a single relatum -- the sound of one hand clapping.⁷

This line of analysis leads to a corollary which, I think, is quite in line with our moral intuitions; namely, that even though the dead might not be said to have interests, future generations may be said to have interests (e.g., in a clean environment, etc.). But neither the dead nor future persons exist now. Why, then, this distinction in the interest bearing? The distinction follows from the fact that while we (or perhaps others) can affect the conditions of life of posterity, we cannot alter the completed lives of the dead.

To recapitulate: With regard to the relation of "having an interest in Y," time is not of the essence. However, with regard to the same relation, a liability to benefit or harm ("having a stake in Y") is of the essence. Accordingly, it is not the case, strictly speaking, that the lack of present desires and concerns, per se, disqualifies the dead from having present interests. Rather, they have no present desires because they are dead, and, more to the point, they have no interests now because, being dead, nothing that happens now can affect their final, immutable, and completed desires and prospects. In contradistinction, unborn persons, who likewise have no present desires and concerns, can be affected by what happens now, and thus can be said to "have in interest" in present policies (e.g., concerning resources and environmental preservation, etc.).⁸

Feinberg's response to this line of criticism is straightforward: He asserts, quite directly, that a person can be "harmed" though not affected by the harm. We turn next to his skillful defense of this claim.

The Argument from "Unaffecting Harms":

This is, I believe, Feinberg's most persuasive defense of "posthumous harm" and "posthumous interest." It is difficult, after reading this argument, to rid oneself of at least an intuitive suspicion that Feinberg's view has some plausibility. The strength of this argument is drawn from Feinberg's ingenious reference to supposed harms to the living, and the apparently compelling suitability of applying the concept of harm equally to the dead. The argument follows upon the cliched question, "Is it true that what we do not know cannot harm us?" Feinberg continues:

Feinberg then closes the trap: "How is the situation changed in any relevant way," he asks, "by the death of the person defamed? If knowledge is not a necessary condition of harm before one's death why should it be necessary afterward?" Returning to the libel case, he continues: "Suppose that after my death, an enemy cleverly forges documents to "prove" very convincingly that I was a philanderer, an adulterer, and a plagiarist, and communicates this "information" to the general public that includes my widow, children, and former colleagues and friends. Can there be any doubt that I have been harmed by such libels? The "self- centered" interest I had at my death in the continued high regard of my fellows, in this example, was not thwarted by my death itself, but by events that occurred afterward" ("Harm," p. 306). Near the close of his paper, Feinberg draws the analogy even closer with three hypothetical cases, paraphrased as follows:

From these cases, as well as the cases of "unaffecting harms" to the living (e.g., by remote defamations of one's reputation), Feinberg concludes that "dead men (like living persons) can be harmed without being aware of it, even though (also like living persons) they cannot be embarrassed or distressed by something of which they are unaware."⁹

Just as "posthumous interests" present a hard case for Feinberg's "interest principle," the case of "unaffecting harm" to the living is a serious challenge to those who would deny that the dead can be "harmed." I am inclined to believe that Feinberg has succeeded so well in binding the cases of the unaffected living and the dead that no logical wedge can be inserted such that the former can be said to be "harmed" and the latter cannot. One is obliged, therefore, either to affirm with Feinberg that both can be harmed or to state that both cannot be harmed. On the basis of my previous arguments (and some that are yet to come), I must reluctantly accept the conclusion that both the dead and unaffected "victims" of libel (and other wrongs) are not harmed.

On its face, this conclusion may seem absurd. I must, therefore, state my claim carefully and stand upon restricted and explicit grounds. First of all, let us understand that I am not saying simply that "what one does now know cannot hurt him." We must rather stipulate (as Feinberg does not, but presumably would), that the subject of the libel not only does not hear of it, but also is not affected by it (e.g., by inexplicable cold stares, by job applications refused, by invitations not received, etc.). Second, we must confine ourselves solely to the point of view of the alleged "victim." No outside perspective is allowable.

Now, if these conditions are met without qualification, we are faced with a case in which the individual's life, in toto, would be absolutely the same whether or not these nasty lies had been told about him somewhere far away. That is, and must be, what is meant by "unaffecting harm." Well, are such lies "harmful" to a person? Frankly, I find it hard to exorcise, by stipulation, the last intuitive suspicion that they are. But do we not have here some illegitimate subjective leakage past our conditions? Can we really be certain that no effects, let alone knowledge, of these lies will get back to him? Considering the unpredictability of human events and the capriciousness of the fates, that is a bold claim indeed! And to whom are these slanders told? To professional colleagues in the next state? To some hill folk in Appalachia? To some unlettered natives of inland Borneo? The alleged harm would seem to fade with the likelihood of feedback and, significantly, to the degree that the "victim" is an identifiable person to those who deride him. In short, I just do not believe that we are subjectively capable of accepting the "unaffecting-harm paradigm" totally and without qualification as it applies to the living. We cannot, I suggest, because our intuitive suspicions that the victim cannot be isolated from harm leak back in. However, once we apply this argument to the dead, we can with little difficulty agree that they will not be affected. (Is this the "logical wedge" between the cases that I said could not be had? No, but it is, perhaps, a psychological wedge.)

A second bit of psychological leakage follows from the "advantage" we have, as reading "spectators," of knowing about the mischief of which the victim, qua hypothesis, is ignorant. Is he "harmed" by these libels? From our perspective, it would seem that he is, since something apparently "bad" relating to him has happened. But what is this relationship to the victim? If the conditions of "no affect" are (however improbably) fully met, nothing whatever has happened to him as a result of these lies. Not a moment of his life is different. From this point of view, it is as if nothing has happened at all. But in reading this tale, complete with far-off villainy, we manifestly are not assuming his point of view. From which point of view can he be said to be "harmed"? From both?

These two psychological considerations suggest, then, that, far from being a clear and straightforward thought experiment, the "unaffecting-harm paradigm" (a) is highly improbable, and (b) calls for subtle and easily compromised feats of imagination. The requisite virtuosity of imagination and objectification is elevated still further if one hears this hypothetical case of libel in the second person ("suppose someone libels you") or tells it in the first person ("suppose someone libels me"). In such cases, I daresay, he will be much more inclined to ascribe harm to the victim (i.e., his own hypothetical self) than if the story is cast in the third person. (Feinberg, we will recall, presents the case in the first person.)

Finally, I suspect that we may be reluctant to deny "harm" to the unaffected libelee out of concern that we may be led to deny also that such acts of libel are wrong -- wrong, that is, even if (per impossible) the culprit is absolutely certain that the subject of his lies will be in no way affected thereby. Rather than move toward this portentous moral judgment, one might be inclined to grasp the offered maxim; namely, that "what people do not know, and what does not affect them, may still be said to hurt them." Thus, if we are to avoid the paradoxes involved in the notion of "unaffecting" (and by extension, posthumous) harm, we would be well advised to offer a substitute maxim -- to present, that is to say, an account of how these acts may be said to be "wrong" on grounds other than "harm" to the unaffected or the deceased. This I shall attempt to do presently.

To summarize: Feinberg correctly argues that here is no significant difference between libeling (or otherwise "wronging") the living with absolutely no affect thereto and, on the other hand, libeling the dead. thus we must either affirm that both are "harmed" thereby or contend that both are not harmed. I suggest that the case against harming the dead is sufficiently strong that the preferable, yet difficult, course is to deny the "unaffected living" can be harmed, all the while strenuously affirming that "unaffecting libels," etc., are morally wrong on other grounds (to be discussed shortly). Accordingly, if we can accept the highly improbable assumption that we can be certain (for example) that a remote defamation of P will in no way whatever affect P, and if, further, we can in fact take the point of view of the defamed, while at the same time "bracketing" our knowledge as detached spectators of the defamation, then, from this strange, artificial, and somewhat concocted perspective, we must conclude that P was not, strictly speaking, "harmed." If this conclusion can be sustained, then no case can be made, by citing the example of "unaffecting harm," to support the contention that the dead can be harmed.

Notwithstanding Feinberg's careful and elegant arguments, the stark fact remains, uncompromising and unqualified: Nothing happens to the dead. No posthumous events can in any way alter a single instant of the full scope of events that constitute a completed life. Accordingly, after death, with the removal of a subject of harms and a bearer of interest, it would seem that there can be neither "harm to" nor "interest of" the decedent. Because in such a context, these phrases (i.e., "harm to" and "interests of") use prepositions with no objects, they are, strictly speaking, senseless.

A circumspect examination of Feinberg's attempt to make sense of posthumous harm and interest reveals the logical paradoxes involved therein. Consider, for instance, this revealing passage: "we owe it to the brothers Kennedy ... as their due, not to tell damaging lies about them to those who were once their contemporaries. If the reader would deny that judgment, I can only urge him to ask himself whether he now wishes his own interest in reputation to be respected, along with his interest in determining the distribution of his wealth, after his death" ("Rights," p. 60, my emphasis). Now our moral intuitions may incline us to agree with Feinberg that we cannot deny that we owe this much to the Kennedy brothers. But can we in any strictly meaningful sense affirm this judgment? Would we not be saying, in effect: "We owe X to P, and there is no P?" But then, Feinberg asks, do we not now wish that our interests be respected after our own deaths? Certainly. But the little word "now" gives him away. Surely "P has an interest in posthumous event A" remains true so long as the interest has a bearer -- that is, so long as P is alive. But that interest perishes with P upon his death -- as an interest of P. Now keeping promises made to the late P and refraining from speaking lies about the late P may be morally required. It may, in fact, be in the interests of the survivors of P to obey these moral requirements; after all, they have their own "to-be-posthumous" contracts and promises to consider and secure by means of their observance, in turn, of the wishes of the deceased. Accordingly, acting in such a manner may well be said to be "right" or "good," or at the very least, "prudent." But after the death of P, keeping these promises cannot correctly be said to be in the interests of the late P.

A Glance Ahead.

We are led, then, to this conclusion: The interest principle requires us to say that, strictly speaking, the dead cannot be harmed, and therefore that there are no posthumous interests.¹⁰ But this is a discomforting outcome. We feel strongly that it is wrong to violate the "quasi-interests" (let us call them) of the dead -- indeed, we may feel this so strongly that, rather than abandon the notion that it is wrong to defame, break promises, and otherwise "harm" the dead, we are led into such paradoxes as those detailed above.

However, I believe that there may be a better way out. A strong case might be made against posthumous libeling and promise breaking that does not make use of the paradoxical notions of "posthumous harm" and "posthumous interest." This case is based on two essential, albeit familiar, assumptions: (a) that the concept of "moral personality" -- indeed, perhaps the concept of "person" simpliciter -- implies a being that can treat itself as an object of conscious reflection, and thus can, in imagination, transcend the time and place of its own biological life span; (b) that, following upon such capabilities, persons can and do make and rely upon contracts, both deliberate and personal, and abstract and hypothetical. Formal contracts such as wills, and informal contracts such as promises, can thus purposefully and intelligibly be drawn to protect the interests of the living, while alive, to affect events beyond their death. The survivors, having similar motives, are well advised to protect their interests by respecting the wishes of the deceased, thus strengthening the just traditions and social contracts that protect the interests and expectations of all, while alive, to have posthumous influence. In the concluding sections of this paper, I will argue that the faulty notion of "posthumous interest" attempts to account for moral imperatives that are quite explicable in terms of "interests while living," and that the qualities of moral personality and the agency of contracts (personal and social) can so readily and appropriately extend moral commitments beyond the span of one's lifetime that it may not be entirely inappropriate to speak of "harming the dead" or "protecting the interests of the dead" in a loose and figurative sense,¹¹ even though, strictly speaking (and according to Feinberg's own rules), the dead are (a) insentient and unaware, (b) therefore without a "good" of their own, (c) therefore without interests, and (d) therefor beyond harm. (In the remainder of this paper, I will use the terms "posthumous interest" and "posthumous harm" in the strict sense -- a sense which, I have argued, is paradoxical. Moral requirements toward the dead, such as refraining from libel and respecting wills, I will term "duties of respect toward the dead, or "posthumous respect," or "giving the dead their due." As the libel and promise paradigms indicate, such "respect" goes well beyond etiquette and involves moral constraints upon the living).

If my criticism of Feinberg's account of "posthumous interests" has been effective, we are left with an orphaned intuition. Surely, it seems wrong to libel or to overturn the expressed will of the deceased. But if nothing can affect the completed and thus immutable life of the dead, wherein is the "harm" of these alleged iniquities? Why indeed might we not do as we please with respect to the dead? The logical case for rejecting a strict interpretation of the terms "posthumous harm" and "posthumous interests" is, I submit, conclusive. Very well, if one can "wrong" the dead, and if such "wrongs" are not "harms to" or "invaded interests of" the dead, what are they?

Moral Personality.

We might begin by asking: "What sort of a being might desire that his interests be protected after his death?"¹² A corollary question immediately follows: "What sort of being might comprehend such a desire and, even more, perceive itself as being bound by such desires of another?" Such a being must necessarily possess certain qualities that we readily recognize within ourselves. First, he must have the capacity to place before his consciousness events and circumstances that are detached from the immediate time and place of his moment of awareness and his physical location. In a word, he must be capable of imagining things and events that are real, possible, or fanciful. Second, he must include among the objects of his imagination a concept of himself as a sentient, conative, reflective being with physical and temporal limits and, furthermore, as a being that is (at least), physically mortal (and thus, e.g., in a position to draw up a will). Third, he must, in Joel Feinberg's words, be "other-regarding." Things, places, conditions, ideas, institutions, and, most significantly, persons outside himself and detached from his immediate moment and location must matter to him; he must care about their well-being as such, and not within some brief constraints of time and condition.

Such a being can make plans and provisions for contingencies that might apply, and in behalf of persons who will live, beyond his own personal lifetime. Without the third condition, he may conceive of such events and circumstances, but they will be matters of total indifference to him. The first two conditions, I suggest, are to be counted among the inalienable criteria of being a person. The third is a necessary, though not sufficient, ingredient of being a moral personality.¹³ All three conditions, in combination, yield a significant result; namely, that among the "objects" about which one may have concern (condition three) is oneself -- viewed objectively (condition two) and hypothetically (condition one).

In mature moral personalities, these three capacities lead, in turn, to a fourth, what I will call "the capacity of moral abstraction." This term denotes the developed ability to detach general moral categories from particular circumstances, and thus to regard and evaluate these categories objectively and abstractly. Thus, for example, we begin by desiring gifts of kindness to ourselves, move on to approving gifts to others, and finally learn to admire charity "as such." Conversely, we progress from the ability to resent betrayals of personal promises and expectations, to feelings of indignation toward betrayals of others, and finally to feelings of moral disapproval toward betrayal "as such." With a repertory of abstract moral concepts (e.g., virtues, vices, rights, obligations, justice, etc.), we are capable of formulating general moral principles and with them a "morality of principles" (as Rawls describes it) or an autonomous "post-conventional" moral cognition (as Kohlberg terms it).

With these four capacities of moral personality we are, I believe, able to account for the widespread practice of making provision for the posthumous future and for the widespread belief that such provision should be carried out. However, the capacity for "moral abstraction" may also lead one to believe, with Feinberg, that a person's "interests" may survive his death, and that a living person can be "harmed" by wrongful acts which in no way affect him. Consider another of Feinberg's accounts of "unaffecting libel": "I do not know what is being said and believed about me, so my feelings are not hurt; but clearly if I did know, I would be enormously distressed. The distress would be the natural consequence of my belief that an interest other than my interest in avoiding distress had been damaged. How else can I account for the distress? If I had no interest in a good reputation as such, I would respond to news of harm to my reputation with indifference" ("Rights," p. 59).

Similarly, Thomas Nagel employs the concept of "moral abstraction" when he writes: "The natural view is that the discovery of betrayal makes us unhappy because it is bad to be betrayed -- not that betrayal is bad because its discovery makes us unhappy."¹⁴ Consider first Nagel's remark. Surely, betrayal is bad in both senses. If we lived in a society in which self-effacing masochism were the norm, betrayal might not make us unhappy. If in such a society it were generally agreed that "good people" are not at all perturbed by betrayal, would we say that "it is bad to be betrayed"? In such a society we might not say this, though in our society we surely do. But how is this so? This follows from the fact that in our society the morally mature person perceives the "badness" of betrayal as a generic evil that can happen to, and be bad for, anyone who shares our moral conceptions. It is bad when it happens to him, to you, and to me. Only in the last case, however, is the attending unhappiness reflexive and personal (however much I might have sympathy for you or for the other fellow). The person who judges betrayal to himself to be bad only because of the unhappiness it causes him (i.e., now he cannot carry out the plans he had counted on), is just as likely to look upon the betrayal, in itself, is bad (first of all) and that it is (additionally) happening to oneself, is to manifest moral maturity. This kind of attitude follows from a tacit syllogism: (a) betrayal is bad for any person in this moral community; (b) I am a person among persons in this community; (c) therefore, all things equal, this betrayal is bad for me. Furthermore, because I am made unhappy when something bad happens, and most acutely (perhaps excusably) so when it happens to me, this betrayal makes me unhappy.

This analysis applies readily to Feinberg's example of the "unaffecting libel" cited above. But it also helps us to recognize the error of postulating "posthumous interests." Thus we can understand that a good reputation is (abstractly) a fine thing to have. That is, from a detached point of view, I can judge that it is good for any person to be well thought of. It is better for that person if he knows of it, which is to say, among other things, if this good regard takes place within the span of his lifetime. But whether or not this is so, that is, whether or not it is a good for him, it is a good, in itself, to be well thought of. (With appropriate alternations of negation, we might just as well say that "it is bad, in itself, to be libeled.") And if one asked: "Given the choice, would you prefer [say] posthumous fame to posthumous notoriety, not knowing in any case, what your eventual reputation would be?" I would reply, "Certainly, I would prefer posthumous fame!" But wait! Just what is going on here? In this very supposition we have utilized, simultaneously, two distinct points of view -- that of the detached observer of good regard, and that of the subject of good regard. From the first perspective it is good, as such, to have a good reputation, even though unknown to the subject thereof. But then we neatly import this judgment into the subjective perspective and conclude that it is good for him to have a good reputation, even if he is completely ignorant thereof. It is by this route, I have argued above, that one might be persuaded that unaffecting and posthumous harms are invasions upon a person's interests. The transfer of interest from the objective to the subjective perspective is less than subtle when Feinberg states: "I do not know what is being said and believed about me, so my feelings are not hurt; but clearly if I did know, I would be enormously distressed" ("Rights," p. 59, quoted above). But in the case of unaffecting and posthumous "harms" I categorically do not know. I can, therefore, care for my posthumous reputation only by regarding myself, and what is thought about me after my death, as an object of my moral reflection during my lifetime. After death, I will, of course, "care" about nothing whatever thus (I would insist) have no "interest."

Unaffecting and posthumous "harms," then, make sense only from the point of view of the objective observer detached from the personal, time- and space-bound perspective of the immediate subject of experience. It is manifestly not from this latter (subjective) perspective that legal wills are drawn up, long-term promises given and accepted, and other such moral and legal transactions made. To be engaged in a moral enterprise is to treat oneself objectively, as a moral personality in a community of such personalities. From such a point of view, things and persons cared for are regarded for their own sakes, and thus one's concern extends beyond the limits of his own lifetime. This extension of import beyond the span of one's lifetime is a consequence of the moral personality's being a spectator, in imagination, of events and circumstances according to abstract moral categories. In other words, I have an interest in affecting events beyond my death because I can imagine, anticipate, and evaluate such events now, I can now perceive their impact upon things and persons I care for now.

To summarize: Among the qualities of a mature moral personality are the abilities to transcend, through imagination, the bounds of one's immediate time and place, to consider oneself as an object of conscious reflection, to care for things, ideas, and persons beyond oneself, and to reflect in terms of abstract moral concepts. These capacities form the basis of the ability to care about events and circumstances beyond one's death. Moreover, as I will attempt to demonstrate in the following section, the casual slandering of reputation and breaking of promises and wills after a person's death compromise and damage the moral point of view, at enormous cost to the moral order in society and thus to the persons who live and act within the society. Herein is the point of the "fiction" of saying that one has an "interest" not to be "harmed" by unaffecting or posthumous libels or other wrongs. The so-called harm is such as would be perceived by anyone who could transcend the postulated limits of his knowledge or lifetime -- limits denied, by hypothesis, in the cases of unaffecting a [?] posthumous harm. In short, the "ideal observer" would perceive a wrong; the strictly unaffected or deceased would not. Thus we might better speak of the "quasi- harm" to the subject of these "wrongs."

Where does this leave us? Can a person P, after his death, be said to be "harmed" or "wronged" by slanderous statements or by the abrogation of wills and other contracts made during his lifetime? Person P, as a subject, is not "harmed" (and, incidentally, not "unharmed" either), simply because the assertion is senseless, for reasons which Feinberg clearly identifies in his interest principle. However, from the point of view of an objective observer of to-be-posthumous events and circumstances, a perspective taken by P himself in drawing up his will and making promises, etc., P can be "harmed." From this standpoint the individual responds not to present actualities, but to anticipations. Even so, by adopting this point of view a person's life, and the lives of his eventual successors, are enriched. And this standpoint is neither a "useful fiction" nor a "noble lie." One can be quite validly concerned now about events in the future that, by hypothesis, one will not see, but can imagine seeing. Feinberg's perceptive and convincing analysis of "other regarding" interests is very helpful here.¹⁵ By this account, just as we can have "other regarding" interests, in the happiness and well-being of friends and family, and the flourishing of ideas and institutions during our lifetime, so can we wish them well after our death. But here we must acknowledge limits and draw the line. The well-wishing (i.e., the interest) ends with the agent's death; the well-being of that which is (eventually "was") cared about is, or is not, accomplished beyond, perhaps in part through provision made by the agent while alive. But whatever the case may turn out to be, beyond one's death one cannot be harmed by these eventualities. Thus, strictly speaking, one cannot be said to have an interest therein past the moment of his death.

The account of moral personality just concluded has, at best, indicated why a person might, during his lifetime, wish to make provision for and favorably affect events and circumstances beyond it. But I have not presented strong indication as to why a person's wishes in the past should be heeded after his death, when, apparently, such a violation of his intentions will make no difference whatever to his totality of life, then complete. In this section, I will attempt to indicate the moral force in obeying the wishes and respecting the reputation of the deceased.

Perhaps we might find most of what we are looking for by considering a significant historical example: the Nobel Prize. If, as we may suppose, Alfred Nobel's philanthropy was rational and well-considered, what conditions must have prevailed for him to establish his prize? What condition must he have anticipated beyond his own lifetime? What must he have thought of the likely moral dispositions of future generations?

Clearly, Nobel expected and counted on moral stability and continuity; that is, he perceived us and our successors as members of his moral community. He felt that, just as he was willing to abide by the wills and testaments of his predecessors, his successors would do likewise after his death. This expectation was, of course, underwritten and guaranteed by the law, under the provisions of which the will was drawn. (Without the guarantee of the law, Nobel might not have established his prize. But we wish to account here not for the legal efficacy of establishing wills but for the moral justification of the laws that secure wills.)

Suppose Nobel believed, as I do, that a person cannot be harmed, and has no interests, after his death. Why, then, should he wish to establish a prize that would have no effects until after his death? He would do so because he valued the advancement of the sciences, literature, and world peace for their own sakes (i.e., as abstract values apart from his "self-regarding interests"), and he so valued them during his lifetime. While alive, that is, Nobel cared for these enterprises and conditions and wished to believe that his fortune might contribute thereto after his death. In short, he had "other-regarding" concern, during his lifetime, for conditions that would obtain beyond it. All this is commonplace and uncontroversial. The essential point, however, is this: none of this concern, expectation, and legal provision is in any way inconsistent with the belief that a person's "interests" do not survive his death. All the "concern" and "expectation" noted above, are those of the living Alfred Nobel. (In this hypothetical reconstruction of Nobel's thinking we find, of course, application of the capacities of moral reflection discussed in the previous section.)

Once the testator has died, however, is there any reason to carry out the provisions of his will? After all, is he not then "beyond harm"? Suppose Nobel's family did not share his interests in the arts, letters, science, and world peace and chose instead (by whatever means, legal or otherwise) to overturn the trust and use the funds unselfishly, say, for hospitals and orphanages. Such an act would, of course, be contrary to the wishes of the late Alfred Nobel, as expressed during his lifetime. But so what? Whether or not the prize was in fact established, not a moment of Alfred Nobel's life would be changed, since he would be "beyond harming." What difference would it have made if the will had been abrogated?

It would have made no difference for Nobel. Still, such an act would be a violation of a contract made with the deceased during his lifetime. And the violation of such contracts, when widespread, can make a profound difference to the living, and to those who follow. For if Nobel's will were not carried out, this would be a violation of his expectation, while alive, that it would be carried out. In truth, after his death, Alfred Nobel could not, strictly speaking, be "harmed." But if his will had been violated on the rationalization that he was "beyond harm," then those who violated the will would lessen their own expectations that their wills, in time, would be secure after their deaths; that is, that their posthumous "quasi-interests" would be respected. If the casual voiding of wills became a general policy -- that is, if it were understood that one might attempt to humor the living with empty promises to keep their wills, and that the promiser might do as he pleased after the death of the promisee -- then, if such practices were generally known, the survivors would themselves be left with precious little assurance that any such promises could be relied upon in their own eventual cases. Without these assurances, few such promises would be made. Accordingly, the satisfactions due moral personalities through the making of effective provision for persons, places, institutions, etc. for which they have "other-regarding_ concern -- these satisfactions could not be enjoyed during their lifetimes.

And there are further costs. To appreciate these costs, consider again the time at which Nobel drew up his own will. If such cynicism as we have just described had been the rule in his time, he too would have had no confident expectation that his will would be honored. Thus, he may well not have bothered to make such a will at all. In a real sense, then, the Nobel Prize, and its advantages, is a dividend to Western civilized society for its continuing manifest willingness to respect the "quasi- interests" of deceased persons, and to treat the will of the living in commonly acknowledged good faith.

And so, because the living have expectations and concern for having their own wills respected, they also have an interest in respecting the wills of the deceased. That is to say, it is in the interest of the living (out of concern for their own to-be- posthumous "interests") that they maintain the stable and just institutions that secured the wishes expressed by the deceased during their lifetimes. The to-be-posthumous "interests" of the living are protected by their resolution to respect, in their own time, the "quasi-interests" of the deceased. The living accomplish this by contributing to the moral sense, by maintaining the moral community, and by supporting just and stable institutions. Thus they support their own expectation that they may make plans of their own on this basis. If, conversely, they violate the "quasi-interests" of the dead, they diminish their own living anticipations of favorably affecting the conditions of life beyond the time of their own lives, through their chosen disposition of their own possessions and through a keeping of promises made to them.

"Now just a moment," a critic may reply, "that is not the way it is at all! Surely the conscientious person, in overcoming a temptation to speak ill of the deceased or to break a deathbed promise, need not give a moment's thought to these 'capacities of moral personality' or even to the effects of his rectitude upon his own 'to-be-posthumous interests.' Instead, he thinks 'I owe it to poor George not to disparage him in front of his widow,' or "What would father think if I broke my promise to him?' Indeed, ordinary conscientious reflections concerning the dead are more likely to be in line with Feinberg,'s account than yours."

Would the conscientious person review my line of argument, or would his reflection follow the lines suggested by Feinberg and/or the hypothetical critic? Such a person might, in fact, reflect either way, or even some other way. Indeed, if he is motivated to act solely on the grounds of protecting the social order in behalf of his own eventual posthumous projects, I am not at all sure that his act could properly be termed "morally conscientious" at all, since my account seems rather self-regarding and egoistic. Yet I stand by my argument, not because the critic's rejoinder is incorrect (it is, I suspect, accurate for many cases at least) buy because it is irrelevant. He is offering a description of the reflection of the moral agent; I have presented an argument from the point of view of the moral spectator and the moral legislator. The critic portrays the moral attitudes and sentiments of a person with bonds of affection and loyalty to institutions and to abstract moral principles (with a "conscience," if you wish). Such a person's attention and regard are thus focused not on his personal advantages but on the deceased and possibly beyond that to social institutions and moral principles to which he has a steadfast loyalty. Applying a Rawlsian frame of reference, we may say that our critic is describing the "sense of justice" (or, more broadly, the "sense of right") of a person, beyond the veil of ignorance, with a functioning morality of association and principles, living in a society that is at least moderately well-ordered.

But given that such a moral agent has these attributes and sentiments and thus deeply feels that the dead should be given due respect, should he feel this way? What is the justification for these moral beliefs and attitudes? These questions have not been addressed, much less answered, by the hypothetical critic. Moreover, I do not believe that the perspective assumed by the critic, namely, the perspective of the moral agent, will supply us with adequate justification for obeying a duty of posthumous respect. For this result we must assume the perspective of the moral spectator and ask, first of all, "What sort of psychological capacities are required for one to have concern for events and circumstances beyond one's death?" and, second, one must assume the role of a moral legislator in order to ask: "Given this account of a morally mature personality, what sort of a social order would such an individual rationally prefer to live in?" (I am, of course, suggesting a perspective similar to that of Rawls's "Original Position," although I would not wish to be held too closely to his model.) If, from the point of view of the moral spectator and legislator, a principle of posthumous respect can be justified by an argument such as I have presented, it is not only consistent, it may be appropriate for the moral agent to have the sentiments described by the critic. Persons, institutions and moral principles which serve the person well might become proper objects of loyalty and commitment. Thus it is that we acquire what Feinberg calls "other-regarding concerns." Thus it is that we feel, perhaps somewhat figuratively or elliptically, that the dead "deserve" not to be libeled, and "deserve" to have their wills honored. In brief, while it may be loosely appropriate to ask "What would father think?" or to say that "poor George deserves to have that promise kept," such remarks are quite incomplete; they are, I have argued, the result of a complex structure of moral explication and justification. If, in seeking an account of this explication and justification, we find something more than a reiteration of the moral sentiments supported by this account (namely, the sentiments expressed by survivors concerning the deceased), we should not be astonished by such a result.¹⁶

To illustrate these remarks, consider again the case of the Nobel Prize. Alfred Nobel, as a moral agent, set up his prize out of an "other-regarding concern" for the sciences, literature, and world peace. His survivors, as moral agents, have complied with his wishes out of shared concern for the sciences, etc.; out of loyalty toward the civic and legal institutions that recognize Nobel's bequest; and out of a respect for the wishes of the late philanthropist. The perspective of the moral spectator and legislator, however, is different from, though not at all inconsistent with, that of the moral agent. As spectator, one might recognize the qualities of moral personality that account for both Nobel's act of establishing the prize and the decision of his survivors to honor it. As moral legislators, we can justify (by means of the social contract argument) the prescriptions that the establishment of this prize was morally praiseworthy, and that the honoring thereof is morally required.

What difference does all this make? Have I not merely labored a shallow conceptual difference with Feinberg (as well as with Aristotle and Nagel)? Does it really matter whether or not we describe "respect" for the (former) preferences of the dead as their "interests"? If my argument has been sound and persuasive, then it would appear that the issue is neither arbitrary nor superficial. In the first place, Feinberg's observation that the concept of "interests" is based on the capacity of certain beings to experience "awareness, expectation, belief, desire, aim and /purpose" ("Rights," p. 61) appears to reflect the essential conventional sense of the concept of "interest." But if these capacities are essential to the concept of interest (as I believe they are), then the notion of "posthumous interest" is incoherent. This situation, I have contended, is not mitigated by Feinberg's explication of the distinction between the object of an interest (a "want fulfillment") and its subjective correlate (a "want satisfaction"). In this paper I have attempted to show that the application of the term "interest' to the deceased is not a shallow, arbitrary choice of usage. Such an application, I believe, is inappropriate for deep and significant reasons.

My dispute with Feinberg, Nagel, and Aristotle may be significant for a further reason. If, as I have argued, the concept of "posthumous interests" is incoherent, then the restrictive context employed in the defense of that concept may not suffice to justify the widely held intuition that the dead have moral claims against the living. If I am correct, then a defense of the notion of "posthumous respect" will require a larger frame of reference and may, as a consequence, lead us to a more comprehensive account of respect for the dead -- and account which serves both to clarify our conception of the moral personality and to strengthen the principle of the social contract. Through this scheme of argument, I have concluded that, even through a person's interests do not survive his death, we may nonetheless affirm that, in a community of moral personalities and just institutions, we are not only permitted to give the dead their due, we are morally required to do so.

NOTES

1.     Joel Feinberg, "The Rights of Animals and Unborn Generations," in Philosophy and Environmental Crisis, ed. William Blackstone (Athens: University of Georgia Press, 1974), pp. 43-68, and "Harm and Self-Interest," in Law, Morality and Society: Essays in Honour of H. L. A. Hart, ed. P. M. S. Hacker and J. Raz (Oxford: Clarendon Press, 1977), pp. 284-308. Subsequent page numbers in text refer to these articles. The quotation from Aristotle is cited by Feinberg in "Harm," pp. 306-7.

2.    See also "Rights," p. 59, and "Harm," pp. 304-5.

3.    W. D. Ross, Foundations of Ethics (Oxford: Clarendon Press, 1939), p. 300. (Feinberg's citation in "Harm," p. 302).

4.    Joel Feinberg, "Is there a Right to be Born?" in Understanding Moral Philosophy, ed. James Rachels (Belmont, CA: Dickenson Publishing Co., 1976), p. 349.

5.     Note his remark in "Rights": "We cannot think of mere things as possessing interests of their own.... A mere thing, however valuable to others, has no good of its own. The explanation of that fact, I suspect, consists in the fact that mere things have no conative life: no conscious wishes, desires, and hopes; or urges and impulses; or unconscious drives, aims, or goals..." (p. 49).

6.     Thomas Nagel concurs: "There are goods and evils which are irreducibly relational; they are features of the relations between a person, with spatial and temporal boundaries of the usual sort, and circumstances which may not coincide with him either in space or in time.... (If this is correct, there is a simple account of what is wrong with breaking a deathbed promise. It is an injury to the dead man....)" (Thomas Nagel, "Death," in Moral Problems, ed. James Rachels, 1st ed. [New York:Harper & Row, 1971], p. 366.

7.    In private correspondence, Feinberg has, I think, effectively rebutted an earlier version of this argument against posthumous interests. I am grateful to him for pointing out my error and for thus encouraging me to offer this revised and, I trust, more adequate argument.

8.     This portion of my argument has greatly benefited from Laurence Thomas's responses to an earlier version of this paper (both the paper and the response were read at the Western Division Meeting of the American Philosophical Association in Cincinnati, April, 1978). Despite this welcome assistance, my views remain somewhat at odds with those of Thomas.

9.     These paraphrases of the cases and the quotations are from a handout distributed by Joel Feinberg at a prepublication reading of "Harm and Self-Interest," at the University of Utah, April 8, 1977. For a full statement of the cases, see "Harm," p. 307.

10.     Strictly speaking, I should say "there are no posthumous interests of the deceased." This cumbersome phrase is not a redundancy since there can be "posthumous interests of the living," as, for instance, might be recorded in the legal will of a person now alive. For the sake of simplicity I have heretofore interpreted "posthumous interest" in the former sense. Unfortunately, the latter half of this paper will require some reference to the second concept. I will henceforth refer to this latter concept as a "to-be-posthumous 'interest.'"

11.     In his earlier paper, "Rights," Feinberg wrote that if the idea of an interest's surviving its possessor's death is a kind of fiction, it is a fiction that most living men have a real interest in preserving" (p. 57). Such references to "fictions" and the "as if" quality of posthumous harms and interest is missing in "Harm and Self-Interest."

12.     Lest it be charged that I am reintroducing the paradox, this may be interpreted to read "interests-while-alive protected after they can, due to his death, properly be called 'his interests.'"

13.     I am not, of course, attempting a full explication of the concept of "moral personality." Rather, I am identifying those aspects of the concept that bear directly upon the issue of posthumous respect.

14.     Nagel, p. 365.

15.    [I perceive no significant differences between Feinberg's concept of "other regarding interests" and my concept of "self transcendent concern." (Cf. "Why Care About the Future," this collection).]

16.     A similar point is urged by Michael Scriven, who writes: "Morally grotesque notions such as defending care for the sick are a rationally necessity when assessing or formulating morality and only an absurdity when, having determined that the move is a sound one, we shift into the moral gear" (Primary Philosophy [New York: McGraw-Hill Book Co., 1966], p. 279n). As the perceptive reader may have noticed in the preceding paragraphs (and, less prominently, in the latter half of this paper), the principle of posthumous respect exemplifies, once again, "the paradox of morality" -- a rule reiterated throughout the long history of philosophical and religious ethics. Scriven provides a clear statement of the paradox: "Each citizen's chances of a satisfying life for himself are increased by a process of conditioning all citizens not to treat their own satisfaction as the most important goal... Put paradoxically, there are circumstances in which one can give a selfish justification for unselfishness" (ibid., p. 240). The application of this paradox to the question of duty to the dead is straightforward: those who hold and act upon a sincere commitment to giving the dead their due receive dividends, both in personal self-respect and in the advantages of a secure moral order in society. Additionally, as the case of Alfred Nobel seems to illustrate, it is in the best interest of each generation not to seek its interest "at the expense of" the previous generation.

Posthumous Interest and Posthumous Respect

Ernest Partridge

(Ethics -- 91:2, University of Chicago Press; January, 1981)

NOTES