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.
