Is Death a Harm? Can the Dead Be Harmed?

I hope to address these important metaphysical questions, along with their ethical and political implications, in a paper that I am writing for a philosophy seminar I am taking this semester on the metaphysics and morals of death. Below is the research proposal I am sending in application to the Institute for Humane Studies for their summer research program. With luck, I will get the fellowship and not have to work this summer, except to prepare this paper for potential publication. See here for the pdf version that includes an annotated bibliography.

Death and Harm: A Neo-Aristotelian Account

Is death a harm? Can the dead be harmed? We are tempted intuitively to answer yes. Death robs us of life and puts to a final end our striving after our goals. When someone, after he has died, has his reputation sullied by false information we tend to think he has been harmed. Aristotle, in his Nicomachean Ethics, observes that we cannot with perfect confidence call a man fortunate until some decades after his death: “For it seems to some extent good and evil really exist for a dead man, just as they may exist for a man who lives without being conscious of them, for example, honors and disgraces, and generally the successes and failures of his children and descendents” (23-24).

Yet if we look deeper at these questions, we run into problems. If a person is dead, who is it that can be the subject of harm? As George Pitcher remarks, “post-mortem persons…are…just so much dust; and dust cannot be wronged [or harmed]” (161). Any defender of posthumous harm must meet Epicurus’ formidable argument:

Accustom thyself to believe that death is nothing to us, for good and evil imply sentience, and death is the privation of all sentience,…Death, therefore, the most awful of evils, is nothing to us, seeing that, when we are, death is not come, and when death is come, we are not. It is nothing, then, either to the living or to the dead, for with the living it is not and the dead exist no longer. (Cited in Fischer, 121)

It is helpful to clarify the concepts: dying, death, and being dead. “Dying is a process. Being dead is a condition or state. Death intervenes between dying and being dead; it takes place at the end of dying and the beginning of being dead” (Fischer, 3-4). At the moment of death, then, we cease to exist and there is no subject to be harmed.

Contemporary philosophers have lined up on both sides of this debate. Those defending the position that the dead can be harmed tend to follow Aristotle in accepting our intuitions as essentially correct; they seek to philosophically justify our intuitions, but must avoid the problem of the subject. The Feinberg-Pitcher account defines harm as set-back interests and holds that the person harmed is the ante-mortem person, i.e., the person at some stage of his life. This solution presents Feinberg and Pitcher with another problem, that of backward causation, for it looks like posthumous events are working causally backwards in time to harm the living person. In avoiding this problem they make the counterintuitive and paradoxical claim that the harm done to an ante-mortem person harms him not retroactively when the event occurs after his death but before his death because it was going to happen. The person is in a harmed condition the moment he invests in an interest that will be set back in the future. The deterministically impending future harm casts a shadow over his life even if he does not know it. Levenbook, not satisfied with the Feinberg-Pitcher account, redefines harm as a loss that is bad for the loser. If we can say that someone loses his life at the moment of death (and she thinks we can) and this is a harm, even though he ceases to exist at that moment, then there is no problem ascribing losses to him at times shortly or long after his death. But it seems that Levenbook has not really avoided the problem of the subject, for at the moment of death there seems to be no subject who can lose his life.

While deeply metaphysical in nature, these questions about death and harm have practical real-world implications. If death is not a harm, is it wrong to kill someone painlessly and without their knowing it? Is killing really as bad as we tend to think it is? If the dead cannot be harmed, then why should we care about their reputations, wishes, claims, obligations, wills, and contracts?

Which side one takes, and how one defends it, will have important consequences for ethical, political, and legal theory and practice. To be sure, those who take the Epicurean view still condemn killing as well as other things popularly thought of as wronging or harming the dead, but have to find other reasons for doing so. For example, Ernest Partridge defends our intuitions on this account, while rejecting posthumous harm, with a consequentialist social contract theory. Feldman, too, though he defends posthumous harm, employs a consequentialist theory. While consequentialist theories (such as utilitarianism) are both useful and oft-times persuasive, they suffer from logical flaws and only tell part of the story.

To my knowledge, no libertarian has directly tackled these issues. A eudaimonic virtue-ethics focuses on the moral agent, encompassing the best features of both deontology and consequentialism, and thus, I think, can provide the strongest reason to refrain from killing and to respect the dead whether or not one thinks death itself is a harm and/or the dead can be harmed. I further wish to propose that a neo-Aristotelian/libertarian/natural rights defense of posthumous harm and death as a harm is not only possible but superior to other attempts. I will begin by arguing, like Feldman, that in order to define death we must first define life. Death can only be understood in the context of life. Life is logically prior to death. The life of man qua rational being must be the standard of value by which we judge whether or not death is a harm.