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.

 

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Dr. Ernest Partridge is a consultant, writer and lecturer in the field of Environmental Ethics and Public Policy. He has taught Philosophy at the University of California, and in Utah, Colorado and Wisconsin. He publishes the website, "The Online Gadfly" (www.igc.org/gadfly) and co-edits the progressive website, "The Crisis Papers" (www.crisispapers.org).  Dr. Partridge can be contacted at: gadfly@igc.org .