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."
I
"The Interest Principle."
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.
The case against ascribing rights to dead men can be made very simply: a
dead man is a mere corpse, a piece of decaying organic matter. Mere
inanimate things can have no interests, and what is incapable of having
interests is incapable of having rights. If, nevertheless, we grant dead men
rights against us, we would seem to be treating the interests they had while
alive as somehow surviving their deaths. There is the sound of paradox in
this way of talking, but it may be the least paradoxical way of describing
our moral relations to our predecessors. And 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. ["Rights," p. 57]
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.
II
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:
If someone spreads a libelous description of me, without my knowledge, among
hundreds of persons in a remote part of the country, so that I am, still
without my knowledge, an object of general scorn and mockery in that group,
I have been injured in virtue of the harm done my interest in a good
reputation, even though I never learn what has happened. that is because I
have an interest, so I believe in having a good reputation as such, in
addition to my interest in avoiding hurt feelings, embarrassment, and
economic injury. And that interest can be seriously harmed without my ever
learning of it. ["Harm," pp. 305-6]
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:
Case A: A's interests are damaged just before his death; the facts are
concealed from him, he dies content.
Case B: B dies content with his surviving interests intact. Those interests
are then damaged shortly after his death.
Case C: C dies content with his surviving interests intact. He is then
betrayed and wronged shortly after his death, leading to severe damage to
his surviving interests.
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.
III
Death and "The Interest Principle":
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).
IV
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.
V
The Social Contract.
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.
VI
A Metaethical Postscript.
"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.
An earlier version of the first half
of this paper was read at the Western Division Meeting of the
American Philosophical Association in Cincinnati, April 28, 1978.
Subsequent revisions have benefited from the comments and
suggestions of Laurence Thomas and Hillel
Steiner. Above all, I am grateful to Joel Feinberg for his helpful
comments and encouragement. An abridged version of the second half of this
paper was presented at the Pacific Division Meeting of the APA in San
Diego, March 23, 1979. I acknowledge, with gratitude, financial assistance
from the National Endowment for the Humanities during the preparation of
the first draft of this paper. I am also grateful to the Rockefeller
Foundation for support during its final preparation.
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.
