Do The Dead Have Any Rights?

Whatever rights the dead may have, they are secured for them by the living. A man writes a will disinheriting his children; they go to court to have the will set aside and a living judge decides the matter. Another man writes a will endowing a fund out of which lawyers can be paid to defend his reputation against all-comers. But in a jurisdiction where English law prevails, that would be pointless: there is no offence of libelling the dead. Only the living can be libelled. In France, the dead are protected too.

The living grant rights to the dead, no doubt guided very much by what rights they themselves would like to be accorded when they die. Rights for the dead are about anticipation, not retrospection. So in most cultures, maybe all, there are protocols for handling a dead body and disposing of it. Failure to observe those protocols is both shocking and probably a sign of some breakdown of the social order. If the protocols dictate at least a shroud and an individual grave, then something has gone very wrong if naked bodies are tipped into common graves, as often they are in times of plague and war. 

But does it make sense to say that the rights of the dead have been violated in such circumstances? After all, they know nothing of what is going on. And we can understand and criticise what is happening without invoking the language of rights. So, for example, we could say that if we don’t show respect towards the dead, we will soon cease to show respect to the living, to each other. And that is not going to be good news. This argument is a cautionary, prudential one rather than a rights-based one.

It is also the case that the language of rights seems inappropriate where there is constant flux in the protocols which set out the rights of the dead. It is only very recently in my culture that burning bodies has been accepted as an alternative to burying them; even more recently that it has been thought acceptable to harvest vital organs - with or without explicit consent -  from those who may have died only minutes beforehand. It doesn’t seem that “rights” come into it. It looks more like “needs must”.

Nonetheless, we do accord rights to the dead which are quite extensive and sometimes not always explicitly reflected upon. Most of these rights relate to property and reputation. Some deserve to be challenged.

An elderly widow with no children and a great deal of inherited wealth writes a will leaving the whole lot to a donkey sanctuary. She has every right to do so. There is no Public Advocate enabled to go before a judge and argue that the will should be set aside. There is no one who can stand up to say: Your Honour, the reality is that we have far too many donkey sanctuaries; donkeys are being bred to populate them; the sanctuaries are not much more than a lucrative scam for those who promote them. I urge you to divert the late widow’s wealth to the oncology department of her local hospital where, at public expense, she received extensive treatment for several years. It would be right for her estate to be put back into the community from which she took so much. Ditch the fake donkeys, Your Honour!

It would require a revolution in our thinking to find that argument compelling. I would welcome such a revolution, but as things stand, the imagined Public Advocate’s argument is nothing more than an open threat to property rights which - in our minds - are inextricably linked to the idea that those are things which can be passed on. Quite cursory analysis would show that there is really not much of a link between the idea of a property right and the idea of an indefinitely and indefeasibly transmissible property right. A practical demonstration of the distinction between property right and transfer right was once provided in traditional gypsy cultures where both the caravan and its contents were burnt on the death of its owner. But woe betide anyone who had thought to steal from the caravan during the lifetime of its occupant.

So much for property. What about reputation? Here there is a cluster of protocols which create or enshrine rights to externalised memory, to memorials. Someone dies, they are buried, and their grave marked with a tombstone giving name, dates, some personal details and maybe a Commendation, “A Kind Father to all His Children”; “She Loved the Donkeys”. All this involves several financial transactions, none of which guarantee that tombstone in perpetuity. In practice, grave furniture is quickly neglected by those who have paid for it; the weather takes its toll on soft stone; the graveyard fills up - and eventually everything is bulldozed to make way for new graves or simply public green space. The dead are forgotten. No one much minds because the protocol has allowed memory to be gradually, not abruptly, extinguished. Those who mourn have been given their time.

In contrast, when a memorial - a monument - to a dead person is erected in public space, whether at government expense or funded by public subscription, it seems to be some kind of assumption that they thereby acquire a right to stand or sit there, in stone or bronze, in perpetuity. There is no protocol for taking these things down, no equivalent to the protocol which allows graveyards to be cleared out. In the context of lively conflict over statues of controversial figures, it would actually be helpful to develop some kind of intellectual framework which would aid us in deciding when a statue’s lease on public space has run out. 

One criterion might be whether we still remember the name and history of a person memorialised, regardless of whether the memory is fond or hostile. Yes, for most of us, it’s still Nelson on top of the column in Trafalgar Square. But who are those characters who occupy the surrounding plinths? If you can’t so much as name them, why would you want them to remain there, in perpetuity? It’s not as if the hack work of monumental sculpture ever has any artistic interest and only rarely can it claim architectural merit. Without a protocol for removing the upright monumental dead, our urban public spaces are simply doomed to become more and more cluttered by forlorn figures, very rapidly forgotten by us and attracting the interest only of dogs - the reason for plinths in part to protect trouser legs - and pigeons.