A Ku Indeed!

Bell IV: The Dead Have Rights Too

Posted in Bell Reading Group, philosophy by Chris on December 28, 2008

26004979At the end of the first part of the Bell’s book East Meets West, there’s a quick discussion of the “rights of the dead.” Perhaps it is the case, as Lo suggests to Demo, that dead people have rights as much as living people do. Most of the people here know that I have a thing for zombie movies – so I already have a pretty healthy respect for the dead (or the undead, as it were). Still, even for me it seems to be an odd idea to suggest that the dead have rights. It caused me to stop and think for a second: what the heck is a human right, after all?

I’m a pretty liberal guy (however you want to read that). When I hear that this or that person was horribly mistreated, my hackles go up. “That’s a violation of so-and-so’s rights!” I think. “Lo” wants to extend our intuitions about mistreatment to cases involving the dead. As a specific example, Lo notes the (true case of) people trying to build a supermarket too close to the grounds of a concentration camp, but it’s clear that Lo wants to extend this notion generally to “treating the dead with respect” – a respect that, of course, would be culturally made significant through local rituals focused on death. So, for the ancient Greeks, rituals suggest that it would disrespect the dead not to bury them (think of Antigone). For the Calatians, ritual suggest eating the dead after they pass away. For Confucius, ritual (li) would demand that one “follow in the ways of one’s parents” for at least three years after they die. In each case, presumably, the dead have “a right to” this treatment.

Now, most of the time, my hackles about rights-oriented-mistreatment are connected up to my pre-philosophical intuitions about human nature. I know this because when I stop and think: “What assures that so-and-so has a right to anything?” I’m often not entirely sure what the answer is. Mostly, my intuitions are just a collection of vague notions that something intrinsic to what makes a person human has been violated in some particular instance. But what is it that secures a right to whatever – what is that “something” that makes a human being human? Typically people say things like “rationality (potential or actual)” or “a capacity for having complex plans and projects” or “having free will” or “possessing a conscience” or things of this general sort. In each case, the person is suggesting that rights are linked to a recognition of whatever it is about humans that reflects their “intrinsic dignity” as agents.

But if human rights are grounded in these sorts of things (whichever of them), then extending them to dead people seems odd because, well, they are dead. As a consequence, they don’t possess those properties anymore. Dead people aren’t rational (whether in a potential or actual sense), have no plans and projects, aren’t free and don’t have a conscience (even zombies don’t have these things).

As a result, extending rights to the dead means shifting our notion of what makes human beings human to something different. It will have to be something that the dead had while alive, and something that they retain now that they are dead, so that the right to a certain degree of respect that remain warranted after demise.

Any thoughts on what this might be? My guess is that we would need to move in a Confucian direction here, but I’m curious if anyone has a guess or speculation to throw out, or even any criticism about the notion of extending rights to the dead.


7 Responses

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  1. Phil Hand said, on December 29, 2008 at 6:07 am

    Extending rights to the dead only means shifting our notion of what makes us human if we believe rights are based on facts about what makes us human *and nothing else*.

    I’ve been playing the advocate of a fairly straightforward pro-rights view, which I do hold; however, as I just said over at Peony’s, I’ve never really believed in rights in the sense of being properties of human beings. I find it impossible to imagine what kind of thing a right would be, understood this way. I’ve always seen them as legal constructs.

    As such, for me this is not a stretch. It’s easy to imagine how such a right could be framed legally. I’d certainly want to push very strongly for it being a negative right. This is discussed in Bell: “it may not be too difficult to secure agreement on what counts as disrespect for the dead.” I could accept the right not to be disrespected, with the burden of proof placed on a representative of the dead person; I’d also want to place some limitations on it, so that you can’t be sued for writing history books or for cultural practices others find distasteful. A clause requiring that disrespect be malicious might do it.

  2. Chris said, on December 29, 2008 at 7:45 am


    (First paragraph): right, that’s true. But it the typical justification — it’s what makes them ‘inviolable’.

    If you see them just as legal constructs, then the dead problem won’t arise at all. Either you extend them to the dead or you don’t.

    But this is not the typical view. Generally people want stronger claims here, no? Things like “hey, even over in _fill in the country without legal rights_ it’s the case that so-and-so’s rights are being violated.” If they are just legal constructs, that won’t be the case. At the very least, they won’t be “inviolable” because they can be extinguished by mutual agreement. At the very least, rights would be determined by majorities.

    I suspect this is the reason for the typical push beyond a mere legalistic approach — a way to secure the truth of “so-and-so’s rights have been violated” through (a) pointing to a behavior and (b) pointing to the fact that so-and-so is indeed human (has those aforementioned properties).

    Now, to be honest, this isn’t to say that I am not sympathetic to your point here, because I am. As I noted, I’m always suspicious of my intuitions on this, and at bottom I suspect that rights are mere conventions.

    But let’s push it further. Even if rights are mere conventions, on what basis would we extend a right to the dead? Why do the dead need to be protected from disrespect? They are dead, no? Clearly you can’t harm a dead person, so it is unclear what the right would “protect” them from.

  3. Phil Hand said, on December 29, 2008 at 11:26 am

    Leaving the issue of what rights are to Peony’s blog for the minute, I might have a look at the last question:

    “on what basis would we extend a right to the dead?”

    I wonder if I could approach this like I do animal rights. Animals have no sense of the future, so it has been argued that you take nothing away from them if you kill them painlessly. I disagree, and say they have a right to go on living even if they’ve never thought about it.

    What about a dead person? When alive, even if the person never thought about what would happen after their death, they will have had some expectations based on their cultural background. Disrespecting their remains after they’re dead is a failure to meet legitimate expectations of behaviour that they really did hold when they were alive.

    Perhaps again we might compare it to a right to subsistence (if such a right exists – I believe for some it does). If the government of the UK suddenly turned round and said that from now on subsistence rations (those given to retirees with no other support, for example) will be cut to a bit of rice and boiled cabbage every day (technically enough to live on), this would be regarded as an attack on the rights of the UK’s poor. However, a similar promise made in Zimbabwe might be a major advance. The differentiator here is not the physical provision, but the legitimate expectation.

    Or could we think about the rights of infants? An infant has the right not to be disrespected by, for example, racial discrimination, even though the infant is insensible to the disrespect and unable to exercise its right unaided.

    Not sure if any of those analogies work, it’s past my bedtime and brain is shutting down. Catch you tomorrow!

  4. Chris said, on December 30, 2008 at 10:17 pm


    Your analogy with animal rights is interesting. It seems that you are suggesting here that animals have “an interest” (that they don’t know about, but that’s okay) in life continuation. Depriving them of this robs them of the fulfillment of that interest.

    I think this is a useful way of coming at the matter. What if (this is the way I’ve thought about it), a human being has an “interest” in their own significance? It could be that what makes a human human (their ‘essence’) is the fact that human beings can live in a way that is meaningful. Essential to this is the fact that humans speak languages, use rituals, and so on. Think of it this way: when I think of my current situation “as a brother” this description almost comes with a whole list of interpretative schemas through which I process the world and give it meaning. If, as a Confucian might argue, all we are reduces to “our roles” then being human is, in a way, essentially to see the world and interpret it in communally significant ways (there could not be the rituals/languages of “being a brother” without a community).

    If this is right, or plausible, then the dead retain this significance even after though they are no longer living. Still rational? No. Still autonomous? No. But they do retain their significance and meaning — perhaps in a sense their dignity — through the ways in which they are interpreted, interacted with via rituals, and so on. To disrespect the dead would be to deny them their humanity, and since significance is the essence of what they are, they have “a right” to not be robbed of it. As a result, when we perform rituals of the dead, we “reanimate them” in a way by giving them meaning, we restore their dignity. When we ignore them, we cheapen them, we treat them like animals (say). In the same way that we might argue that a person has “a right” not to be coerced, because they are naturally free, a person has “a right” to be treated in a way that retains their significance as the very persons they were (rituals towards the dead differ with respect to your relationship to them; we treat dead parents differently than we treat dead friends, and so on).

    Late here as well, hopefully these quick thoughts make some sense!

  5. Phil Hand said, on December 30, 2008 at 11:50 pm

    I’m still very worried about this way you have of saying that infringing someone’s rights “denies them their humanity”. I wouldn’t want to say that we are given humanity by other people, because this does leave open the possibility that they will stop giving it to us, think we are witches, and haul us to the ducking stool.

    But yes, I like your idea that we exist socially, and that our social existence has meaning after our death. I’d be wary of saying that “all we are reduces to ‘our roles'” – for the reason given above. Existing societies include significant inequality. If I am my role, and no-one in the world regards me as anything but a slave, then I am a slave?

    Perhaps a Confucian would get around this problem by defining the kinds of relationships that constitute us (e.g. the four relationships schema). But this starts to impose alarming amounts of a priori restrictions on society, doesn’t it?

  6. Chris said, on January 3, 2009 at 7:26 am


    Sorry for the delay. I’m never sure what the timeframe on replying to a blog post is! I like to sit on certain topics sometimes and think them over more, so I skip around at times.

    Good points, all around, by the way.

    Your point is well taken about removing humanity. Though I think for the Confucians, humanity is surely something that must be acquired (through social relationships), and as a result is seems to be something that could in turn be lost in reverse fashion. However in this case, those through which you acquired your humanity (your family, friends, and then your descendants), has a duty to maintain your humanity. You have a right against them, I would suppose (if you wanted to push “rights” talk in a Confucian context). So I think if your ancestor was robbed of humanity via the refusal to participate in certain rituals by descendants, this should not mean that at that point the person (ancestor) loses his/her rights as his/her humanity is infringed upon. I’m not sure how to figure out the details here yet, but it seems that an ancestor who has been mistreated in this way could not lose all of his/her humanity, and would certainly, even in the reduced state, be “owed” something, whereas a cat, on the other hand, might not be owed anything at any time (seen from this framework), because it never had humanity to lose or to be owed.

    In the Confucian context, I do not think that “slave” would function as a proper role, as you note too. Though it’s an interesting question to ask why that would be. Still, yes — I think the Confucian would have to say that if you were nothing but a brother (role wise), and no one regards you anything but a brother, then that’s all you are. If “being human” means for the Confucian the capacity to act in a meaningful way, and “meaningful behavior” is defined in a relational fashion, and so takes place in that sort of context, then “brotherly action” would be the only forum in which I could act in a meaningful way.

    Why are the restrictions alarming, by the way? It just says (to my ear) that the ways in which something can be meaningful are restricted to the components of meaningfulness already present within a society. Which seems to make sense to me. This doesn’t mean that new things couldn’t come into existence, but they’d have to be built up out of the parts that already exist (so perhaps new relationships could come into existence, but only out of the relational “parts” already lying around).

  7. Phil Hand said, on January 8, 2009 at 2:05 pm

    I can’t take it, must think in English, must come and reply here…

    Don’t worry about delays, blog threads can grow slowly like coral reefs.

    That’s very interesting, what you say about Confucian roles. If a pukka Confucian position would be to say we are our social roles, then respect to it. But it does sound potentially limiting. Your saying that nothing is invented in a vacuum is all very well, but new things are invented. For example, back in Confucius’ day, the idea of citizen was unknown; in the modern world it’s pretty important. The role of women has also undergone revolutionary changes. In the Confucian view, we’d need to imagine mechanisms to accommodate these changes.

    Particularly important would be the issue of political identity. How could a group (for example, an indigenous group) forge a political identity if one didn’t exist already, under this Confucian schema? Or perhaps we should try to imagine something that doesn’t currently exist: what if “inhabitants” of 2nd Life (that virtual reality world) decided to form a political identity. What kind of resources would they have to draw on in a world that only recognized their existing relationships?

    Equally, when society wishes to get rid of certain kinds of relationships (ending slavery, sex discrimination, etc.), how is this done? Must it be by fiat? “Thou art no longer the property of your husband.” Who would have the authority to issue such a fiat?

    And to tie this back to Bell in some way: how would such a system cope with intercultural relations? A modern system must have some mechanism for dealing with the structures of other cultures.

    All of these changes seem to be easily dealt with in a social system that places some value on our existence as human beings. From this simple premise we can derive ideas like equality and rights. But without this basis, if we are nothing but our social roles, I’m not sure if a really robust system can be developed. Wouldn’t such a society be thrown into turmoil by social change? What would be left to hold on to?

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