The Power to Bequeath
Abstract
What should happen to a property holding after the death of its owner? One
conventional answer to this question is that the owner can legitimately designate the
beneficiary of a posthumous transfer through a written will. Yet this aspect of
property ownership has received little in the way of philosophical attention or moral
justification. Philosophers tend either to acceptance bequest as a conventional
feature of property ownership or reject its legitimacy on egalitarian grounds.
Dissatisfied by both approaches, this paper: (i) provides a conceptual individuation
of bequest, drawing a distinction between it and other sorts of property transfer,
such as inheritance; (ii) shows how the canonical, historical accounts of private
property ownership have failed to justify bequest; (iii) outlines what any plausible
justification of bequest will require, which I argue is an account of the posthumous
interests such transfers serve; and (iv) concludes by briefly sketching the normative
relevance of my justificatory account of the power to bequeath.
1
The Power to Bequeath
What should happen to a private property holding after the death of its owner?
Should the late proprietor be allowed to posthumously transfer the holding to a
person of her choice, as conventionally designated by a final will and testament?
Should it pass directly to that person’s descendants or kin? Might it be legitimately
confiscated (in whole or in part) by the state to be redistributed according to a
particular account of justice? Or should it somehow become “unowned”, such that
another member of the political community could then acquire it through
appropriately specified means? Though clearly central to any account of legitimate
ownership within a political society, such questions are rarely subject to sustained
theoretical scrutiny.
Philosophical considerations of the posthumous transmissibility of a property
holding tend to display commitments to one of two different positions, neither of
which seems wholly satisfactory. In discussions of private property amongst legal
theorists, the posthumous transmissibility of a holding tends to be presented as part
of what is often called the “bundle of rights” that is customarily thought to define
ownership. Thus, when offering conceptual definitions of property legal theorists
defer frequently to A.M. Honoré’s influential essay, which provides an account of
what he calls the concept of “full ownership” claimed to be visible in all “mature”
2
legal systems.1 Honoré identifies the power of posthumous transmissibility as one of
the definitive aspects of ownership, along with the right to possess, the right to use,
the duty not to use harmfully, immunity from expropriation, the absence of term
and so on.2 Posthumous transmissibility is thus left both unquestioned and
unjustified as a legal right and moral practice. Honoré’s approach suggests that the
concept of property ownership has some essential characteristics. These
characteristics, such as the rights to use of, and security for, our property are
considered to be part of the meaning of the concept itself: the justification for the
various aspects of ownership is on this view presumably parasitic on the justification
for ownership itself. The claim that ownership can imply posthumous
transmissibility is nevertheless presented by Honoré simply as an analytic truth, one
apparently deducible from its existence in modern legal systems: beyond this fact, he
provides no argument, no moral, legal or political justification for its inclusion. This
approach is unsatisfactory insofar as such a view of the concept implies that there is
an over-arching, stable concept of property ownership, rather than a number of
A.M. Honoré “Ownership”, in A. Guest (ed.), Oxford Essays in Jurisprudence (Oxford: Clarendon
Press, 1961), pp. 107-147; Lawrence Becker Property Rights: Philosophical Foundations (London:
Routledge and Kegan Paul, 1977), pp. 7-23; Stephen Munzer, A Theory of Property (Cambridge:
Cambridge University Press, 1990), pp. 15-36.
2 Honoré is careful to emphasise that none of these rights, duties and powers he presents as part of
the concept should be regarded as necessary conditions for ownership to obtain. We can thus
conceive of a particular instance of ownership occurring that does not include any form of
posthumous transmissibility: we might say that X owns Y in the sense of having most of the
customary legal relations with other agents yet nevertheless acknowledge the absence of any right to
posthumously transfer Y to Z. The features identified by Honoré are better thought of as sufficient
conditions of ownership and, importantly, not all need be in evidence at the same time for a property
right to be accurately observed.
3
1
competing conceptions of a contingent social practice. In the same way as we can
conceive of democracy without elections and football matches without the offside
rule, it is entirely possible (if not necessarily attractive) to conceive of ownership in
such a way as not to include several of the conventional aspects associated with it in
modern legal systems. Any analysis of the legal concept of ownership surely cannot
function as a convincing moral or political justification for its existence, even within
any appropriately localized “Western” context.
Discussions of rights of posthumous property transfer within contemporary
political philosophy have taken a radically different tone. Considerations of such
rights appear most often within writings about intergenerational justice, wherein
posthumous transfers are customarily presented as frustrating the achievement of
that goal. The claim that tends to be advanced is that the transmissibility of
ownership rights facilitates unjustifiably inegalitarian outcomes and because of this
posthumous transfers should be significantly curtailed or even prohibited entirely.
Stuart White, for example, observes that “contemporary capitalist societies such as
Britain and the United States exhibit very sustainable inequalities of wealth” and
then suggests that although the causes of such inequalities might be multiple, “few
specialists would deny that one major source…is the conventional institution of
inheritance”.3 The conclusion he then reaches is that such inequality-generating
Stuart White, The Civic Minimum: on the Rights and Obligations of Economic Citizenship (Oxford: Oxford
University Press, 2003), p. 178. See also White, “What (if anything) is Wrong with Inheritance Tax?”,
The Political Quarterly, 79 (2008): 162-171. Stephen Munzer advances a similar argument (which he
4
3
transfers should be subjected to a very high rate of taxation – in his view,
somewhere close to 100%.4 Michael Otsuka goes even further, defending an
egalitarian proviso on any established rights of private ownership that renders
posthumous transfers completely illegitimate. For him, because such transfers will
inevitably generate inequalities within and across generations, property owners
“should be forewarned that any worldly object they… [legitimately acquire] will
lapse into a state of non-ownership upon their death and hence will not be
bequeathable”.5
There are reasons to be dissatisfied with arguments that urge the prohibition
of posthumous transfers on egalitarian grounds. Probably the most striking one is
that there would seem to be no reason not to extend the egalitarian proviso to all
forms of gratuitous transfers. If the moral objection to posthumous transfers is that
they result in material inequalities, this is clearly just as applicable to inter vivos gifts.
If it is accepted that posthumous transfers treat third parties unfairly or result in
applies also to inter vivos gifts), while remaining agnostic about how such transfers should be
restricted (A Theory of Property, pp. 380-418). Though he did not make much of the issue in his early
writing, in Justice as Fairness: a Restatement (Cambridge, MA: Harvard University Press, 2001), John
Rawls outlines his moral commitment to preventing excessive intergenerational inequalities of
opportunity through the regulation of posthumous property transfers. For a discussion of Rawls’s
views on inheritance within the broad context of his view of economic institutions, see Samuel
Freeman, Rawls (London: Routledge, 2007), pp. 219-235 and, alongside the thought of James Meade,
Martin O’Neill, “Free (and Fair) Markets without Capitalism: Political Values, Principles of Justice
and Property-Owning Democracy” in M. O’Neill and T. Williamson (eds.) Property-Owning
Democracy: Rawls and Beyond (Chicester: Blackwell, 2012), pp. 75-100.
4 White, The Civic Minimum, p. 180.
5 Michael Otsuka, Libertarianism without Inequality (Oxford: Oxford University Press, 2003), p. 38.
Otsuka claims that owned property should return to “the common” in the event of death, from which
it could be acquired by another who, in turn, will have legitimate title to that holding whilst alive, but
will be without the power to direct ownership after death (Libertarianism without Inequality, pp. 35-39).
5
unequal distributive shares, such a conclusion undoubtedly applies to cases in which
the giver of the gift in question is still alive.6 This point is in fact acknowledged and
embraced by Otsuka, who widens the scope of his argument to suggest that all
forms of gratuitous transfers should be prohibited.7 Any egalitarianism that
prohibits non-trivial gifts (posthumous or otherwise) obviously places potentially
huge restrictions on individual freedom. As White points out, this observation is not
interesting in itself and requires some account of the objectionable nature of the
coercion in question in order to carry any normative weight.8 Any claim that such a
restriction on individual freedom is problematic or unjustifiable will, as White notes,
require an account of a “morally significant interest” that is unduly burdened in the
process.9
One relevant difference between inter vivos and posthumous transfers could be that instances of the
latter do generate a form of inequality that is not a consequence of the former. In the case of gifts or
market transactions, third parties cannot claim to have had their relative bargaining power affected: if
John gives X to Julian rather than to Melissa, then although Melissa’s bargaining power has decreased
by the value of X with regard to Julian it has also increased by the value of X with regard to John. This
symmetry of bargaining power in such transactions vanishes when they take place posthumously: in
this case Melissa’s bargaining power with regard to Julian would have decreased by the value of X,
but she would have benefited from no corresponding increase with regard to John or any other agent.
Nevertheless, the unfairness of such an inequality in bargaining power needs to be explained and
cannot be taken for granted.
7 He suggests that while “there would be little reason from an egalitarian point of view to interfere
with the worthwhile practice of modest gift giving on special occasions which do not, in the
aggregate, have a significant effect on the distribution of opportunity for welfare”, any “less modest”
gifts given on non-special occasions are objectionable and should be prohibited (Otsuka,
Libertarianism without Inequality, p. 38).
8 White, The Civic Minimum, p. 181.
9 It is worth pointing out at that dissatisfaction with these arguments for the prohibition of
posthumous transfers need not be grounded in only a concern for a particular morally valuable
exercise of liberty, but also from a rejection of the claim that it is implied by a commitment to
equality. Few (if any) egalitarians believe that there can be no such thing as a justified inequality of
some description, and there is the need to spell out what is wrong with the particular inequalities
generated by instances of non-trivial posthumous property transfers. For example, the prominent
6
6
One of my aims in this article is to show that the power to bequeath a
property holding can be defended with reference to the posthumous interests it
serves. I argue that the justification for bequests is ultimately not different in any
morally relevant sense from that of gifts and that both sorts of property transfer
should be thought equivalent when theorizing about distributive justice, such that
the interest they serve is sufficiently strong to undermine any case for their
prohibition and that regulation through taxation is a suitable normative conclusion
for liberal egalitarians. To advance this argument, I pursue four distinct objectives:
(i) I individuate the concept of bequest, drawing a sharp and important distinction
between it and other sorts of property transfer, including the oft-ignored difference
between bequest and inheritance; (ii) I show how the most influential liberal
accounts of private property ownership in modern political thought have either
ignored or have failed to adequately justify bequest; (iii) I outline what any plausible
justification of bequest will require, which I argue can only be an account of the
posthumous interests such transfers are intended to protect; and (iv) I conclude by
egalitarianism advanced by Ronald Dworkin does not advocate the prohibition of posthumous
property transfers: he “reject[s] Otsuka’s claim that equality unambiguously requires prohibiting gifts
and bequests altogether” (Dworkin, “Sovereign Virtue Revisited”, Ethics 113 (2002): 106-143). For a
discussion of the Dworkinian view of posthumous transfers, see Matthew Clayton “Equal
Inheritance: An Anti-Perfectionist View” in Guido Erreygers and John Cunliffe (eds.), Inheritance,
Justice and Equality (London: Routledge, 2012). White’s argument is more nuanced than Otsuka’s,
partly because it rests not merely on some supposed unfairness intrinsic to the transfer in question,
but rather on the invocation of an empirical claim about the causes of significant or unacceptable
levels of material inequality within societies. The fact that this is an empirical claim means of course
that it provides in some sense a contingent rejection of posthumous transmissibility: presumably if
the choices made by testators did not generate the inequalities in question (perhaps because they
were motivated by some kind of egalitarian ethos), the property transfers could no longer be thought
unjust.
7
briefly considering the normative reach or relevance of my justificatory account of
bequest and tentatively sketch its possible implications for theorizing about
distributive justice.
Defining Bequest
A necessary starting point for my discussion is to offer some definitions and draw
some important conceptual distinctions between different types of property transfer.
The specific focus of this article is bequest. The posthumous aspect of a bequest – the
fact that someone has to die in order for the property transfer to take place –
obviously distinguishes bequests from gifts, exchanges, contracts and any other
forms of inter vivos, consent-based transactions in which both parties need be alive.
Bequests and gifts are distinguishable from those other consent-based transactions
by virtue of their gratuitous nature: although all involve the exchange of legal
statuses towards a holding that is found in all property transfers, in such gratuitous
cases the transferor can at no point be under the legal duty to perform the
transaction that is present in sales and contracts.
Although subject to frequent colloquial conflation, it is not only possible but
extremely important to distinguish the concept of bequest from that of inheritance,
as the two moral practices have different justificatory implications. When
understood narrowly, inheritance refers to the right to receive the private property
owned by a spouse, parent or family member on the event of that person’s death.
8
The recipient of an inheritance is determined by her satisfaction of a specific,
established relational criterion and is therefore completely independent of any
desires held or expressed by the owner while alive. Such rights of inheritance are a
visible and long-standing part of several European legal systems, including in
France (via the Napoleonic code), and in Scotland (via Roman Law) where there
exist established laws of familial succession. The effect of these laws is to make
posthumous familial transfers of a certain proportion of property compulsory.
Within such legal systems, bequest is a quite separate power from this right of
inheritance, such that testamentary freedom is limited to the surplus proportion of
owned property beyond familial succession.10
Bequest can be understood to denote a quite different, more capacious
concept than inheritance. It can be understood as the power to alter legal relations of
ownership such that a person’s property can be posthumously transferred to any
person or institution of choice, regardless of any familial (or indeed any specified
relational) connection. The recipient of a bequest is determined by the desires of the
testator and is completely independent of the satisfaction of any relational criteria.
This difference in definition matters when it comes to the issue of moral justification.
This is because inheritance, as described here, refers to a transfer that pays no
attention whatsoever to the wishes of the owner of the property in question and
For a richly detailed, comparative sociological analysis of the laws regulating inheritance and
bequest in France, Germany and the United States, see Jens Beckert, Inherited Wealth (Princeton:
Princeton University Press, 2004), pp. 21-82.
9
10
instead places all moral emphasis or relevance on the entitlements held by the
familial recipient: it can be justified through reference to values such as the
importance of bonds of love, family and kinship or to the particular duties that
parents have to children. By contrast, bequest, as delineated thus far, places all moral
emphasis or relevance on the wishes or interests of the particular testator, to the
exclusion of any concern with those of the intended recipient. Thus conceived, in one
important sense, bequest pays no attention to any facts or value judgements about
the relationship between testator and recipient: what is instead important, as will be
fleshed out further below, is how that relationship or recipient is regarded by the
testator. So, a bequest could be legitimately made to a charity or corporation as much
as a family member; indeed, it could be made as legitimately to an enemy as to a
friend. Thus, while Stephen Munzer is correct in his observation that gratuitous
transfers such as bequests are not necessarily “unmerited” in a moral sense, it is
nevertheless the case that their legitimacy does not in any way depend on or require
a stable account of what counts as merit or virtue.11 Questions about the legitimacy
of and grounds for inheritance need not make any reference to the moral relevance
of a proprietor’s final will and testament, whereas questions about the legitimacy of
and grounds for bequest hinge entirely on such moral relevance.
This lack of any necessary, justificatory connection between the moral
practices of inheritance and bequest make it possible to offer a defence of one and a
11
Munzer, A Theory of Property, p. 380.
10
rejection of the other without any incoherence. Hegel, for example, defends
inheritance but rejects bequest. For him, bequest is not only distinct from but
actually undermines inheritance, because it weakens the familial bonds that the
latter both reflects and is supposed to serve. His suggestion is that any attempt “to
extend the validity of arbitrary dispositions at the expense of family relationships is
implicitly to weaken the latter’s ethical standing”, and therefore concludes that
bequest “must be classed as unethical”.12 For him, the justification of inheritance
does not merely fail to imply a corresponding justification for bequest but entails an
opposition to it. In the same sense, a justification for the power to bequeath does not
provide any arsenal of support for inheritance. Thus, in Principles of Political Economy
J.S. Mill argues that “although the right of bequest, or gift after death, forms part of
the idea of private property, the right of inheritance, as distinguished from bequest,
does not”.13 So whereas Mill asserts that “the ownership of a thing cannot be looked
upon as complete without the power of bestowing it, at death or during life, at the
G.W.F. Hegel, The Philosophy of Right (ed.) Allan W. Wood (Cambridge: Cambridge University
Press, 1991), p. 216. He asserts further that “the so-called family of friendship which a will brings into
existence can arise only in the absence of the closer family of marriage and children. Wills in general
have a disagreeable and unpleasant aspect, for in making my will, I identify those for whom I have an
affection. But affection is arbitrary; it may be gained in various ways under false pretences or
associated with various foolish reasons, and it may lead to a beneficiary being required to submit to
the greatest indignities. In England, where all kinds of eccentricity are endemic, innumerable foolish
notions are associated with wills” (The Philosophy of Right, p. 218).
13 J.S. Mill, Principles of Political Economy (ed.) J. Riley (Oxford: Oxford University Press, 1994), p. 28.
He goes on to suggest that “Nothing is implied in property but the right of each to his (or her)
faculties, to what he can produce by them and to whatever he can get for them in a fair market;
together with this right to give this to any other person if he chooses, and the right of that other to
receive and enjoy it”. Mill does argue that children are owed duties by their parents that can involve
the transfer of property, but his view is that this duty vanishes once the children are not in a position
of need, especially should they prove themselves unworthy recipients (Principles of Political Economy,
pp. 31-33).
11
12
owner’s pleasure”, he refuses to “admit that parents should be compelled to leave to
their children even that provision...that they have a moral claim to”.14 Bequest and
inheritance are thus two separate forms of property transfer, which require moral
justifications and explanations that, far from being mutually supportive, are capable
of opposing each other.
Objections to this sharp distinction are nevertheless conceivable. It might be
argued that it is a mistake to prise bequest fully apart from inheritance, since it is
bound up in the same human practice: that the power to bequeath merely represents
a natural, logical and efficient extension of the concept of posthumous familial
transfer in modern societies that have become increasingly individualised.15 On this
view, although bequest and inheritance are conceptually distinguishable, they are
not really morally distinguishable, because both are rooted ultimately in the same
justification: the need for human beings to most appropriately dispose of their goods
after death given their sociality. Whatever sociological or anthropological evidence
there may be to support such a position, it seems ultimately untenable. The main
problem with it is that it is incapable of explaining the undeniable difference in
moral status between the power to dispose of property according to one’s wishes
and what must necessarily be the duty to pass it on to particular individuals. A
Mill, Principles of Political Economy, pp. 33, 35.
This is actually an aspect of Mill’s argument: for him, the justification for inheritance depends on a
feudal sensibility that has “long since perished” and that the “unit of society is not now the family or
clan, composed of all the reputed descendents of a common ancestor, but the individual” (Mill,
Principles of Political Economy, pp. 28-29).
12
14
15
defence of the right to inherit might prioritise the moral relevance of
intergenerational familial relations, the particular duties generated by the
responsibilities a person owes to one’s family or the needs of one’s dependents. But
such arguments provide no parallel case for the posthumous transfer of property to
a person or corporation of one’s choice. Despite the ostensible similarities between
these forms of posthumous transfer, there are no obvious reasons to regard the
concepts of inheritance and bequest as being in any way connected in a justificatory
sense.
A History of Failed Arguments: Bequest in Modern Theories of Property
The history of modern theories of property seemingly fails to provide any
compelling justification for bequest: the most prominent rights-based and
consequentialist arguments appear to fail upon inspection.16 Within the natural
rights tradition, John Locke’s influential theory of property does contain a defence of
posthumous transfer, but it is one that is couched exclusively in terms of inheritance.
For Locke, “Children have a Title to part of” the property owned by their parents,
because as well as being under an obligation to God to preserve their own life,
human beings are likewise “bound to preserve what they have begotten”.17 In
For a discussion of the history of liberal, libertarian and socialist thought on inheritance in Europe
(from Bentham to the twentieth century) see Guido Erreygers “Views on Inheritance in the History of
Economic Thought” in G. Erreygers and T. Vandevelde (eds.), Is Inheritance Legitimate? Ethical and
Economic Aspects of Wealth Transfers (Heidelberg: Springer, 1997), pp. 16-53.
17 John Locke, Two Treatises of Government (ed.) Peter Laslett (Cambridge: Cambridge University
13
16
addition to duties of education and love, Locke insists that parents are obliged to
preserve a portion of their property for their children, such that they are ensured the
“conveniences and comforts of Life”.18 Parents are bound to provide for the children
they beget, partly because they do in fact beget them (and therefore owe them some
particular moral duties) and partly because of the unique needs that children
themselves face.19 A child’s right to inherit (and correlative parental duty) is
grounded ultimately in the same divinely ordained moral obligation to preserve
human life that justifies acquisition in the first place: both acquisition and
transmission are, according to Locke, morally required in order to sustain life.20 Since
the justifications for both property ownership itself and its posthumous transfer each
reflect God’s will, rather than that of any proprietor, it is unsurprising that bequest
makes no prominent appearance in Locke’s theory. If private property and its
conventional features are grounded in normatively prior duties related to a
Christian teleology, it is hard to see what moral weight the wishes of a particular
Press, 1988), Chapter I: Section 88. The duty that individuals have to preserve their own lives is
specified at (Locke, Two Treatises, II:6) and informs the whole of Locke’s argument in that text: on
several occasions, “the Fundamental Law of Nature” is identified as “as much as may be, all the
Members of the Society are to be preserved” (Locke, Two Treatises, II:159).
18 For analysis of Locke on inheritance and familial rights and duties, see A. John Simmons, The
Lockean Theory of Rights (Princeton: Princeton University Press, 1992) pp. 204-212; Jeremy Waldron,
The Right to Private Property (Oxford: Clarendon Press, 1988), pp. 241-251; Robert Lamb “Inheritance
and Bequest in Lockean Rights Theory” in G. Erreygers and J. Cunliffe (eds.), Inherited Wealth, Justice
and Equality (London: Routledge, 2012), pp. 39-53.
19 The way in which Locke phrases the right of inheritance – such that children have a Title to part of
owned property, one that they then become “wholly” possessive of in the event of parental death –
actually means the ostensible heirs are in some sense owners even before this event takes place. It
would seem therefore that a certain quantity or type of property (Locke does not specify which) must
be reserved for children under all circumstances, which presumably implies a substantial curtailment
of parental behaviour while alive to protect the property in question.
20 Locke, Two Treatises, II:6, II:25-26.
14
proprietor might have. Locke’s natural rights theory offers no substantive
justification or explanation for the power to bequeath, which gets no more than a
fleeting and ambiguous mention in the text.21
There have also been some prominent consequentialist attempts to justify the
posthumous transfer of property rights, some of which have focused on the
individual or social benefits derived from its existence. Again, however, they fail to
provide an adequate justification for bequest. Like Locke, Hume appears interested
mainly in defending inheritance rather than bequest: his claim is that “the right of
succession is a very natural one”, which is in “the general interest of mankind”.22
The rightness of succession is something he explains with reference to the
imaginative connection between parents and children and how this is manifest in
existing practices of ownership.23 However, Hume’s argument does gesture towards
the possibility of legitimate, non-familial posthumous transfers. His suggestion is
that it is right that someone’s “possessions shou’d pass to those, who are dearest to
them, in order to render them more industrious and frugal”, since society has been
The fleeting mention of bequest is at (Locke, 1988, II:72), where he refers to the power that Fathers
have to “bestow their estates on those who please them most” and no justification nor explanation is
provided. The ambiguous mention of bequest is at (Locke, 1988, I:87) where he writes “if any one had
began, and made himself a Property in any particular thing…that thing, that possession, if he dispos’d
not otherwise of it by his positive Grant, descended Naturally to his Children and they had a right to
succeed to it, and possess it” (Locke, 1988, I:87, emphasis added). Though Waldron (1988, pp. 246-47)
in particular makes much of this statement, it is unclear that this one instance does reveal a
commitment to bequest since the notion of a “positive grant” could simply be a reference to transfers
made during the proprietor’s lifetime rather than posthumously.
22 David Hume, A Treatise of Human Nature (ed.) L.A. Selby-Bigge, (Oxford: Clarendon Press, 1978), p.
510.
23 Hume, A Treatise of Human Nature, pp. 512-13.
15
21
shown to benefit from the cultivation of such virtues.24 This notion of the holding
being transferred to those “dearest to” a proprietor seems to place moral emphasis
on the desires of the testator and therefore validate bequest.
Hume’s consequentialism does not, however, seem to provide a convincing
justification of bequest. This is because of the issue of verifiability customarily faced
by consequentialist arguments, which can in this case be divided into two
challenges. First, there is the empirical challenge to demonstrate the link between the
consequence in question (in this case the cultivation of a set of individual virtues and
their benefit for society) and its alleged cause (in this case the practice of bequest).
Second the virtues identified (in this case industriousness and frugality) must be
judged as beneficial to society as suggested. These challenges seem especially
pertinent given the details of Hume’s claims. Even if a society happened to be
interested in the promotion of the virtues of industriousness and frugality, a strong
commitment to posthumous property transfers might not be the best way to
encourage this. It is true that in order to acquire the power to bequeath a holding, a
testator might indeed need to display such virtues, but it is nevertheless conceivable
that the named recipient might not.25 It seems perfectly plausible that the institution
Hume, A Treatise of Human Nature, pp. 501-11.
Hume’s assumption seems to be that in order for an agent to have something to bequeath in the
first place, that person simply must have displayed the virtues in question: had she not behaved
industriously and frugally, there would be no property to bequeath and therefore we must admit that
bequest is productive of both virtues. Nevertheless, the display of either virtue is clearly not a
necessary condition for individuals to be able to own or bequeath property: being the beneficiary of
transactions that involve the good will of others or simple instances of luck can create such a
16
24
25
of bequest could encourage laziness and profligacy to flourish alongside
industriousness and frugality.26 The reason that this is plausible is not simply
because there is no requirement for the named beneficiary in a proprietor’s will to
cultivate such virtuous habits, but comes back instead to the nature of bequest itself:
as noted above, the justification of bequest must be tied to the wishes of the testator,
and because of this, the sort of personal virtues deemed worthy of reward and
recognition will be entirely dependent on what he or she regards as virtues, not any
objectively observed set. Bequest implies the power to transfer for any motive
deemed relevant to the testator, no matter how capricious or how consequently
useless for the general good, so the claim that it can be justified with reference to the
utility of a particular set of virtues looks entirely contingent and therefore ultimately
quite weak.
Other thinkers have provided a more indirect type of consequentialist
reasoning when giving an account of the legitimacy of bequest. The form that such
reasoning usually takes is to explain or justify the various conventional features of
private property ownership with reference to the purpose of that institution as a
whole. For example, for Pufendorf, property rights were established because God
circumstance.
26 The likely prevalence of this phenomenon was suggested by Scottish-American industrialist and
philanthropist Andrew Carnegie, who claimed that “the parent who leaves his son enormous wealth
generally deadens the talents and energies of the son, and leads him to lead a less useful and less
worthy life than he otherwise would” (Carnegie, The Gospel of Wealth and Other Timely Essays
(Cambridge, MA: Harvard University Press, 1962), p. 56). See Martin O’Neill’s “Death and Taxes:
Social Justice and the politics of inheritance tax”, (Renewal: a Journal of Social Democracy 15 (2007): 6271) for a discussion of the views of Carnegie and also Teddy Roosevelt for the consequentialist case
against unregulated inheritance.
17
commanded it, via the general obligation incumbent on individuals to “preserve
peace, tranquillity and good order”.27 This sort of justification for property
ownership effectively obviates the threat posed by any questions about the various
legal relations that come with it. Thus, the theoretical strategy Pufendorf employs
when addressing such relations is simply to trace their legitimacy back to the
original argument for property itself: the general need for a peace-seeking
convention. The demands of peace not only justify property ownership as an
institution, but also the conventional features that have developed with it, including
the power to bequeath. Pufendorf claims that it is rightfully the case that
“most peoples have adopted the custom which is itself a kind of consolation
for mortality, that a man may make arrangements during his lifetime for the
transfer of his property in the event of his death to the person he most
loves”.28
Pufendorf’s indirectly consequentialist justification of bequest is no more
satisfactory than the direct version and not only because it depends on the
acceptance of claims about God’s existence, the paramount desirability of peace and
Samuel Pufendorf, On the Duty of Man and Citizen (ed.) James Tully, (Cambridge: Cambridge
University Press, 1991), pp. 84-85.
28 Pufendorf, On the Duty of Man and Citizen, p. 88. On those occasions when a proprietor dies intestate,
this does not mean that his property consequently has no owner. Instead, the children of a proprietor
(or the parents if there are no children) can claim “rights of blood”: without a written will, this
familial right to inherit trumps any rival claims – even if there are owners “who may love certain
outsiders more than those of their own blood”—on the grounds that it is “in the interests of peace”,
because it is “most obvious and not liable to complex disputes” (On the Duty of Man and Citizen, p. 87).
Pufendorf insists that “it is contrary to common human feeling and scarcely conducive to the peace of
mankind that the goods which a man has acquired with such labour through his life be regarded as
abandoned on the death of the owner and available to anyone to occupy” (p. 87, emphasis added).
18
27
the connection between peace and private ownership. It is also the structure of the
argument itself that is unconvincing, because it conflates the case for the existence of
private property with the case for its various features and component parts, which,
in turn, implies that property ownership has essential characteristics. As observed
earlier, while it might seem alien to contemporary Western legal systems, it is far
from impossible to imagine a world in which property ownership does not imply
the power to bequeath a holding: indeed, as noted above, several egalitarian political
philosophers regard such a radically alternative understanding of property to be
demanded by justice. The justification of property ownership as an institution does
not necessarily justify its conventional features, and the power to bequeath faces a
special sort of challenge in this regard, due to its connection with death.
Death and Rights
There seems then to be a lack of any compelling defence of the power to bequeath
among the most historically influential theories of property. Yet contemporary
philosophers have not done much to remedy this. We might expect to find a defence
of bequest in Robert Nozick’s libertarian Anarchy, State, and Utopia, since such
political theories are characterised by their commitment to robust ownership rights
and the powers that come with them. While Nozick does spend some time
unpacking the intuitive attractiveness of gratuitous transfers – emphasising “the
purpose and point to someone’s transferring a holding to one person rather than to
19
another” – there is no attempt to specifically justify bequest.29 The power to bequeath
might perhaps be thought conceptually implicit given his broader account of just
ownership.30 If, as Nozick suggests, Wilt Chamberlain holds an inviolable
entitlement to any money he receives voluntarily from a basketball spectator, then it
seems plausible to suppose that this same person could arrange to leave Wilt his
fortune when he dies.
The belief that the power to bequeath is simply an implicit conceptual
entailment of a property right cannot be blithely accepted, not even by libertarians
enthralled by the moral centrality of ownership. Furthermore, this is not only for the
aforementioned reason that such a position ascribes essential characteristics to a
contingent social institution, but also because it ignores the justificatory challenge
that bequest faces that other forms of gratuitous transfer do not: that posed by death.
A characteristic of inter vivos transactions – both gifts and market exchanges – is a
straightforward swap of legal statuses. After the transaction has taken place, the
legal relationship between the two parties involved, with regards to the holding in
question, completely inverts: the seller or giver, from having rights of ownership
over the property, now has duties of non-interference in my ownership of it whilst
the recipient, having had the duties, now holds the rights. As Hillel Steiner points
Robert Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974), p. 159.Though there is a
tantalizingly brief discussion of the possibility of restricting bequests in certain cases, such as
intellectual property or some kind of discovery that is so useful to humanity that exclusive ownership
of it violates the rights of all others (Nozick, Anarchy, State, and Utopia, pp. 181-82).
30 This is clearly what Nozick thinks (Anarchy, State, and Utopia, p. 178).
20
29
out, this straightforward exchange of legal correlatives that is definitive of gifts and
exchanges is necessarily absent from instances of bequest.31 The reason that the
exchange is absent is that the testator never actually relinquishes his or her right of
ownership or the adjoining power to waive the duty held by all other individuals
not to interfere with that right. When it comes to an individual’s final will and
testament, the testator retains, at all times until her death32, the power to alter it and
therefore change the recipient of the bequest at any time whilst alive. This power can
of course be waived at any point during the course of the testator’s life, but if it ever
is, the exchange then ceases to become a bequest and instead becomes an inter vivos
transfer. In order for the rights of ownership over any object to be properly
transferred, there must be an agent available to consent to the transfer and the
required exchange of legal statuses, and, when the testator dies, this ceases to be a
possibility. Given all of this, Steiner’s argument is that no named beneficiary of a
bequest can be thought to have any right over the holding in question: bequest is, for
him, a “legal fiction” and property rights vanish entirely in the event of an owner’s
death, with the objects in question reverting to a status of non-ownership.33
Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), pp. 253-54.
Presuming the person is of sound mind.
33 Steiner, An Essay on Rights, p. 258. The right of an executor to enact the testator’s will is also
rendered illegitimate on grounds that relate to those identified above. In the same way that a testator
can only bequeath property through a consented-to transfer of legal relations, so it is with the
executor. It is not merely the case that the executor lacks any duty to transfer the object to the named
beneficiary in a will: rather, Steiner’s suggestion is that no executor can hold any legal relationship to
the object in the first place. This is because in order for that executor to have such a relationship to the
object (such as a duty to transfer it to the proposed beneficiary), the original owner must waive the
power he has to enforce the non-interference duty that his ownership generates in other individuals.
21
31
32
Objections to this reasoning are nonetheless conceivable. After all, individuals
regularly make contractual agreements that bind future conduct. Under certain
circumstances, if I offer you a job and a contract is agreed upon, it does not matter if
the job does not begin for a further six months: such agreements about the future are
made every day and generally assumed to be binding. Likewise, when making a
will, individuals clearly articulate intentions about what they want to happen after
they die, and it is difficult, perhaps even bizarre, to see why such expressed wishes
should not be honoured simply because the event of death required to render them
relevant takes place. Nevertheless, despite how counter-intuitive his argument
appears, Steiner is right insofar as bequests are conceptually more akin to promises
than to contracts in that they do not bind future conduct in the relevant legal sense
and the testator can always (while alive) alter the terms of the bequest or reject it
outright without incurring a liability of the sort that I would if I reneged on my job
offer: “I hereby dispose” really means “I hereby dispose provided I do not change
my mind at any time while still alive and still of sound mind”.
Steiner’s rejection of bequest stems ultimately from his adherence to the
“will” (or “choice”) theory of rights, advocates of which insist that the purpose of a
right is to enable individuals to make choices with regard to the duties held by
others. The will theory stipulates that a necessary, definitive characteristic of a right
As Steiner puts it, once the testator is dead, he is “not merely contingently, but rather necessarily,
incapable of waiving or demanding anything” (p. 255).
22
is that it must be exercisable.34 In light of this it is no surprise that individuals cannot
be thought of as rights-bearers after they die, because any such exercise becomes
impossible.35 The case against bequest made by Steiner clearly depends on a thesis
about how the relationship between analytical jurisprudence and normative political
theory should be understood and what a particular model of rights is supposed to
tell us. His argument is that we can rule out the legitimacy of established rights
should they fail to fit with what are thought to be their required definitive
characteristics. Established rights, even if they are recognised by a particular
linguistic community, that fail to comply with the correct theoretical definition of
what a right is must be dismissed as nonsensical. However, the problem with this
position is that the identification of the relevant, supposedly definitive characteristic
– in this case the exercisability of rights – is itself already dependent on what are
claimed to be shared, established meanings within a particular linguistic
community, inviting a charge of circularity. 36 Such theories of rights simultaneously
appeal to ordinary language as vindication for their particular model, while on the
other stress its irrelevance when the model in question cannot make sense of
particular established practices, such as, in this case, the power to bequeath. In the
The will theory was most systematically delineated by H.L.A. Hart. See Hart, “Are there any
natural rights?”, Philosophical Review 64 (1955): 175-91; Hart, Essays on Bentham: Jurisprudence and
Political Philosophy (Oxford: Oxford University Press), pp. 162-193.
35 For Steiner’s account and defence of the will theory of rights, see An Essay on Rights, pp. 55-73);
“Working Rights” in M. Kramer, N. Simmonds and H. Steiner (eds.), A Debate about Rights (Oxford:
Oxford University Press, 1998), pp. 233-302.
36 This point is articulated nicely by Leif Wenar in “The Analysis of Rights” in M. Kramer et al. (eds),
The Legacy of H.L.A. Hart: Legal, Political and Moral Philosophy. (Oxford: Oxford University Press, 2008),
pp. 251-74. See also Wenar, “The Nature of Rights”, Philosophy & Public Affairs 33 (2005): 223-252.
23
34
case of the will theory, the claim is that our common understanding of the function
of rights is such that they must be exercisable and therefore that one of the rights we
commonly think ourselves to possess (that of posthumous transfer) is illusory. But
there is evidently a tension here when it comes to what we are supposed to regard as
our shared understanding of the nature of rights. And it is far from clear why it is
the legitimacy of the existing right to bequeath that is sacrificed rather than the
theoretical model against which it is measured.
We might instead treat the ability to adequately articulate those rights that we
already recognise as a virtue of a theory of rights. In other words, rather than think
of theories of rights as technical models against which our normative values and
social practices should be measured, it seems at least as plausible to think of the
articulation of our values and practices as tests for our models of rights. So, in this
case, instead of observing the incompatibility of the will theory of rights with our
moral practice of bequest and rejecting the possibility of the latter, a legitimate
response would be to reject the plausibility of the former.37 There is the need to
determine whether an alternative understanding of rights can provide an account of
bequest. The obvious alternative is the “interest” or “benefit” theory of rights, which
regards the function of rights as serving the interests of their holders. The question
to be then addressed is whether a compelling account of such interests can be
Such an approach would seem to be in tune with much recent work on theories of rights, which call
for a more pluralistic understanding and reject any attempt to explain their function through any of
the singular models thus far developed. See, for example, Rowan Cruft, “Rights: Beyond Interest
Theory and Will Theory”, Law and Philosophy 23 (2004): 347-97; Wenar, “The Analysis of Rights”.
24
37
provided in the case of bequest and whether it can account for the difficulty raised
by death.
The case from Posthumous Interests
It would seem that any account of interests capable of successfully grounding
bequest will need to differ from that used to justify inter vivos gifts. This is because
the aforementioned challenge posed by the event of death can simply be restated to
apply to the alternative, interest-based understanding of rights: if, after death,
individuals lose the ability to exercise their will, do they not likewise relinquish any
interests they had while alive? There appear to be two different ways to formulate
the concept of posthumous interests. First, they can be understood as referring to the
interests held by individuals after they die. As some have pointed out, if liberal
philosophers are genuinely committed to the eschewal of thick metaphysical claims
and to impartiality towards competing conceptions of the good, then it is not clear
that they can consistently deny any claim that the dead are holders of interests in a
meaningful sense.38 Nevertheless, even if this were to be accepted, it is not clear how
going down the route of treating the dead as bearers of interests themselves could
provide any justification for bequest. This is because the very act of bequeathing
involves a transfer of ownership, the alienation of one’s property. The purpose of a
See, for example, Tim Mulgan “The Place of the Dead in Liberal Political Philosophy”, The Journal of
Political Philosophy 7 (1999): 52-70.
25
38
bequest is precisely to steer the direction of one’s property towards another
individual who remains alive and who is then in turn endowed with the various
rights and powers associated with ownership. So while the ascription of interests to
the dead could explain why we might be required to maintain a garden that
someone cultivated carefully during her lifetime, it seems incapable of explaining
why we should care about the deceased person’s wish for the garden to become the
property of somebody else. Once such a right is transferred, the recipient will in turn
then possess the same powers of transmissibility, use and so forth, such that it is
hard to see how the new circumstances could represent a continuing protection of
the interests of the dead, as they become further removed from the destiny of the
particular holding in question.
The second way of construing posthumous interests is as the interests held by
the living in what happens after they die.39 This more promising construal is animated
by the thought that during the course of a lifetime, individuals invest – both
financially and emotionally – in a series of projects that define their personal and
ethical identity and make posthumous arrangements that reflect their particular
priorities and conceptions of the good. It is motivated by the fact that people invest
in long-term projects that they wish to extend beyond their own existence and make
The claim that people relinquish upon death the interests they had while alive and are therefore
“less morally significant than the living”, enables S. Stuart Braun to argue that bequest is not a moral
right (Braun, “Historical Entitlement and the Practice of Bequest: Is there a Moral Right of Bequest?”,
Law and Philosophy 29 (2010): 695-715, at 711). He does not, however, consider the possibility that we
might construe posthumous interests as those held by the living in what happens after they die.
26
39
arrangements to that effect while they are alive. Like any other interests held by an
individual, posthumous interests can then be set back. And although the event of
death would seem to rob the world of the relevant subject of harm that is implied by
such a setback, we can – and commonly do – trace the harm to something like the
“moral estate” of the person in question.40 In other words, we recognise the
possibility that we can owe some duties to a person who is deceased, on account of
what we owed her while alive. One example of a posthumous interest being set back
would be defamation of character after death: the interest that individuals have in
having a certain kind of veridical reputation after death, such that no lies are told
about the beliefs she held or about the conduct she displayed during her life. Firmly
established posthumous rights exist that concern our bodies, such as the right to
choose whether or not we donate our vital internal organs for medical usage and the
right not to have them used in necrophilic acts, both of which seem grounded in the
interest we have (while living) in making arrangements to follow our deaths. A
similar interest-based concern would seem to underpin the circumstances under
which such rights to posthumous bodily integrity are waived: when someone asserts
that “I don’t care what happens to my body after I die because I won’t be around
A point made by Joel Feinberg in The Moral Limits of the Criminal Law, Volume 1: Harm to Others
(Oxford: Oxford University Press, 1984), p. 86. For some further illuminating discussions of the
concept of posthumous interests, see Ernest Partridge, “Posthumous Interests and Posthumous
Respect”, Ethics 91 (1981): 243-64; Barbara Baum Levenbrook, “Harming Someone after His Death”,
Ethics 94 (1984): 407-19; Dorothy Grover, “Posthumous Harm”, The Philosophical Quarterly 39 (1989):
334-53; Steven Luper, “Posthumous Harm”, American Philosophical Quarterly 41 (2004): 62-71; James
Stacey Taylor, “Harming the Dead”, Journal of Philosophical Research 33 (2008): 185-202.
27
40
anyway”, we are compelled to respect the sentiment not because of any truth-value
attached to the metaphysical claim in question, but rather because the sentiment is
expressive of the person’s values and beliefs, her conception of the good.
It is not then hard to grasp the intuitive resonance of the interests we hold
while alive in what happens after we die, nor hard to appreciate how such interests
might be served by the transfer of property rights in accordance with the stated
wishes of an owner. All gratuitous transfers reflect social bonds, and both gifts and
bequests afford proprietors the opportunity to benefit a person or corporate body of
their choice. We might actually regard bequests as sometimes expressive of deeper
commitments than inter vivos gifts. While gifts can be considered valuable through
their expression of choice on a particular occasion (like buying flowers for someone
on a romantic whim), bequests can convey a deeper sense of personal identity,
because of their ability to reflect the sustained and consistent choice on the part of an
individual. If a person chooses to consistently refrain from entering into market
transactions that would benefit the butcher, the brewer or the baker during a lifetime
and opts instead to make plans to posthumously benefit a particular person or
corporation, this decision and those that follow it over time suggest a network of
beliefs and values constitutive of a person’s selfhood. Such transfers can be plausibly
regarded as signifying a person’s values and goals held throughout a life. Consider,
for example, bequests made to corporations or charities and their social meaning.
Such posthumous transfers are morally significant because they represent something
28
necessarily particular about an agent’s conception of the good, something that marks
out their individuality within a community. This is the case whether such transfers
are made to Amnesty International, Battersea Dogs Home or to the “Campaign for
Real Ale”: such bequests are significant because of the beliefs about the good life
held by the particular property holder.
Furthermore, and crucially, bequests signify an individual’s values and
priorities expressively and in a public legal arena. Upon the death of an individual –
in most Western legal contexts – written, witnessed wills become a matter of public
record when probate is entered. The wishes of individuals stated while alive then
become visible within civil society and, unless there are important anomalies, are
subsequently granted legitimacy by a court, acting as an arm of the polity. Such a
public bestowal of political legitimacy is indicative of just how seriously the
sovereignty of an individual’s posthumous wishes is taken. The court acts as a zone
in which the individual is recognised as the bearer of an accumulation of interests
throughout her life, given concrete expression through a will, something also
signified by the need for individuals to bear witness to its initial confirmation.
Any plausible justification of the power to bequeath a property holding – or,
put differently, any explanation of its moral attractiveness – would seem then to
depend on an account of the value of posthumous interests, the acknowledgement
that individuals have a real stake in the realisation of their lifetime projects after they
die and the expressive function such property transfers generally have. Although
29
such posthumous interests are clearly recognisable in our everyday moral landscape,
the concept has been subject to critical scrutiny. The most important criticism for the
purposes of this discussion is that the concept itself is incoherent, for if this holds, it
looks as though the power to bequeath remains incapable of justification.41
Allegations of incoherence tend mostly to hark back to the problem of death: critics
are sceptical of there being a relevant bearer of interests or, put differently, subject of
harm after a proprietor dies. Cecile Fabre, for example, has recently argued that “it
does not make sense to confer on the living rights that states of affairs obtain
posthumously”. The reason for this is that “the living cannot have such rights, while
alive, unless they also have them once dead”.42 According to Fabre, “it must be the
case that, at the point at which Y fulfils, or defaults on, his duty to X, the latter can be
benefited, or harmed, by his action”.43 In other words, if one is to justify the duty to
observe a right with reference to the interest or benefit that right is supposed to
Another criticism of the idea of posthumous interests that is important – but that I have insufficient
space to consider fully – is the claim that any invocation of it implies a commitment to the paradox of
“backwards causation”, such that any action thought harmful to a person’s interests after their death
somehow reaches back into the past to cause the harm in question. Loren Lomasky argues
persuasively that such a worry rests ultimately on a peculiar façon de parler: “The charge is mistaken.
There is no reaching back through time, or at least none that is metaphysically dubious. To remember
an event is, metaphorically, to reach back into the past, but it is not to cause any past event….[T]he
event’s being remembered is something that takes place in the present. Similarly, to bring about an
outcome for a past person is not to bring about a past outcome. To generalize: one can at time t cause
it to become the case that property F characterize the no longer existent entity a, in which case it is
timelessly true that: F (a) at t” (Lomasky, Persons, Rights and the Moral Community, (New York: Oxford
University Press, 1987), p. 219). Lomasky’s approach avoids the difficulties apparent in Feinberg’s
account of the issue, which seems committed to the view that posthumous harms imply that a person
is “in a ‘harmed condition’ before the harm occurred” (Lomasky, p. 219; Feinberg, pp. 89-91).
42 Cecile Fabre, “Posthumous Rights” in M. Kramer et al. (eds), The Legacy of H.L.A. Hart: Legal, Political
and Moral Philosophy (Oxford: Oxford University Press, 2008), p. 229.
43
Fabre, “Posthumous Rights”, p. 231.
30
41
serve, any failure to observe the duty must imply a subject of harm, but because that
subject is dead, she cannot actually be harmed and therefore has no interest to
sustain the purported right. On this view, it is not possible for people to be harmed
after they die, and because of this, the attempted justification for bequest based on
posthumous interests fails.
So death is here conceived as an event, one that makes the relevant moral
difference between a person being able to hold rights or not. This perspective does
have initial intuitive plausibility. It might indeed appear quite difficult to get to grips
with the thought that a person can be harmed by things that happen after death, since
such a claim would be reliant on some kind of controversial metaphysics. But the
intuitive difficulty really comes down to the language involved: it certainly seems
far less intuitively difficult to accept that individuals can, while alive, benefit from
things that they can be assured will happen after their death, that, as suggested
above, they can have real interests in making posthumous arrangements that reflect
their values and conception of the good. The honouring of the right that represents
the interest will obviously take place after death, but the actual benefits to be gained
from the decisions made and the intentional states that motivate those decisions
concern only the living. Where appropriate, such posthumous interests can then be
represented by rights, and these rights can subsequently be violated. Even though,
technically speaking, the actions that would “harm” posthumous interests (the
violation of the right through the ignorance of a person’s will) obviously cannot take
31
place until after the person dies, it does not follow from this that the benefit of such
interests being served cannot be registered while the person is alive. A key part of
receiving the benefit (or non-harm) of having one’s wishes be posthumously
honoured is the firm knowledge that they will be, the certainty that one’s projects and
personal investments will be protected by society and a legal apparatus.
As observed earlier, there is a sense in which a written will is more akin to a
promise than to a contract, but not in any way that makes a moral difference to the
wrong in question when such a promise is broken. It is perhaps possible to imagine
a society that merely pretended to honour bequests but actually did not and acted
against a person’s stated wishes as soon as they died, but such a society would
plainly be unsustainable and, in any case, quite unattractive. The fact that the event
necessary for the promise to be honoured is a person’s death does not diminish the
significance of that promise or the obligation that it be kept. Indeed, if anything,
death increases its significance: even individuals who lead what they regard to be
successful lives, do so with the inevitability of death framing their projects and
decisions, and it is an acknowledgement of this that provides much of the force for
our posthumous rights against the world to be upheld. This need not imply that we
have the right that each of the projects we engaged in be completed, protected or
acknowledged. As Geoffrey Scarre points out, the impact of our life projects on “the
32
posthumous future” will be “determined by the logic of the projects themselves”.44
Nevertheless, the looming inevitability of death and the role it plays in motivating
individuals to act in certain ways – including making arrangements for the transfer
of their property – underscores how important the upholding of posthumous rights
is to the living.
When thinking about the posthumous interests that we have, any emphasis
on the exact point of time at which harm is supposed to register – the focus on the
moment a person ceases to be medically classifiable as living – risks entirely
mistaking both the nature and significance of death. Such a zero-sum, biological
focus posits, and makes a fetish of, a strict separation between life and death that is
profoundly out of step with how we actually conceive our interests. It ignores the
processual aspect of death within a society, the fact that a person’s social life as a
recognised moral entity endures beyond the absence of a beating heart, through the
ritualistic response of individuals to it, including the important winding down of an
estate. The crossover between life and death works the other way too. Consider the
requirement that a person must be of sound mind in order to alter a written will.
When, for example, a person of advanced years develops a sufficiently serious
condition of dementia, power of attorney is conventionally granted to another on the
grounds that the person in question is deemed not able to judge her best interests. At
Geoffrey Scarre, “On Caring about one’s Posthumous Reputation”, American Philosophical Quarterly
38 (2001): 209-19.
44
33
this time, the testator relinquishes the legal power to alter the terms of the existing
will, which retains legitimacy. Yet at the same time, as the law acknowledges, the
person obviously remains a bearer of some interests and can obviously still be the
subject of harm. We certainly do not think that just because a person has dementia,
they therefore relinquish all their rights. Presumably though, if the living but
demented person’s property were to be distributed in a manner contrary to the
written will, any search for the aforementioned subject of harm would likely be
unsuccessful: how can there be harm if there is no way of the person possibly
registering it? However, the dominant legal response to this situation is not to treat
the person’s life as a proprietor as having finished, but is instead to protect the
legitimacy of the existing, established will, which cannot be undermined. The only
plausible reason for this would seem to be because that particular will is thought to
represent the expressed cumulative interests of a person over a lifetime in the
weaving together of the various projects that give meaning to her life. The sceptic
about the existence of posthumous interests is unable to explain the difference
between the demented individual, unaware of their wishes not being granted, and
the dead individual, who apparently lacks such interests. The understanding of
posthumous interests as those interests that individuals have in the circumstances
that survive them need not face this question, because such an understanding is
ultimately rooted in a view of death as a social and moral process rather than only a
natural event. It can thus make sense of the power to bequeath as reflecting a
34
person’s cumulative values and conception of the good, expressed in a public arena.
Conclusion
In the preceding analysis, I have attempted to identify and individuate the concept
of bequest, such that it can be conceptually distinguished from both inheritance and
inter vivos gifts. I also showed that there is a curious absence of successful
justifications for it within what we generally take to be the most influential modern,
liberal theories of property ownership, from the rights-based writing of Locke and
Nozick to the consequentialism of Pufendorf and Hume. I then argued that its moral
attractiveness can be explained only through the posthumous interests that it serves:
how making arrangements about the posthumous destiny of owned holdings can be
an important source of benefit to individuals and that charges against the coherence
of this concept seem ultimately misplaced, because they mistakenly focus on the
apparent absence of a posthumous bearer of the relevant interest necessary to
sustain the relevant right and on a wrong-headed understanding of the significance
and meaning of death.
What is the normative significance of this analysis? On the one hand, it must
be admitted that merely providing an articulation of the interests served by bequest
does not, in itself, generate any substantive normative conclusions. The fact that
there appears to be a successful moral explanation for the power to bequeath a
property holding does not have any direct bearing on considerations of the just
35
ownership or distribution of goods in a society. Nothing in the analysis above
suggests that the interests served by bequests are so significant that they must trump
other values that feature within discussions of just ownership, such as need, desert
or, indeed, a concern with equality of opportunity. A commitment to the moral
attractiveness of the power to bequeath and the interest it is thought to serve is
perfectly consistent with the belief that the completely unconstrained exercise of
such a power has the potential to generate significant inequalities that could be
regarded as unjust. However, the identification of such an interest does provide
something else to be taken into account when theorizing about intergenerational
justice, even if it does not have any direct bearing on the normative conclusions that
emerge from such theorizing. The identification of such an interest might suggest
that some kind of balance should be sought when curtailing liberty in the name of
equality.
The identification of a morally significant interest represented by the power to
bequeath should perhaps urge egalitarian political philosophers to approach debates
over the legitimacy of posthumous transfers and their policy implications quite
differently. One of the implications of the preceding discussion is that any
distinction between bequests and gifts is really conceptual rather than moral: they
are different forms of property transfer, but they are ultimately both justifiable with
reference to the interests of the person making the transfer, who has complete
discretionary power over its direction. This is because once it is admitted that death
36
helps explain the significance of the interest at stake in such transfers, rather than
undermining the possible existence of such an interest, bequests emerge as
posthumous gifts, with their particular character revealing a difference in type of
transfer, at most a different degree rather than kind of moral quality involved. And,
crucially, this rejection of any difference in kind between the moral significance of
bequests and gifts would seem to have normative implications. These implications
are again not that such powers of transfer have trumping force over other values,
such as equality of opportunity. But if we come to recognize bequests to be merely
posthumous gifts, this would seem to entail that we must adopt the same attitude to
the regulation of all gifts in political society. In other words, when political
philosophers come to address policy-oriented questions about the regulation of
bequests, they should be prepared to apply their prescriptions equally to gifts. 45 If
this upshot is accepted, then the slightly ironic implication of the analysis above
would seem to be that unpacking what is morally special about the power to
bequeath reveals there to be nothing special about bequests as a form of property
transfer and therefore no special moral case for a tax on them that is not applicable
to other gifts. There are thus no grounds for philosophers to claim that there is
anything morally or politically urgent about taxing bequests, as opposed to doing
It is worth pointing out that this attitude is consistent with the late Rawlsian approach mentioned
earlier (n. 3). As O’Neill points out, a necessary condition of fair equality of opportunity is for Rawls
the thwarting of any intergenerational transmission of advantage, and therefore his favoured regime
of property-owning democracy requires a broad taxation strategy that takes in bequests and gifts
(O’Neill, “Free (and Fair) Markets without Capitalism”, especially pp. 84-87).
45
37
likewise to any other form of property transfer.
ACKNOWLEDGEMENTS
Earlier versions of this paper were presented to workshops on property and
inheritance held at the University Centre Saint-Ignatius Antwerp and the HanseWissenschaftskolleg Institute for Advanced Study in Delmenhorst, to the St
Andrews Philosophy Club and to the Exeter political theory seminar. I am grateful
to those audiences, to the anonymous reviewers for Law and Philosophy and, in
particular, for comments and discussions, to Dario Castiglione, John Cunliffe, Robin
Douglass, Guido Erreygers, Iain Hampsher-Monk, Keith Hyams, Stuart Ingham,
Seumas Lamb, Chris Nathan, Martin O’Neill, James Penner and Chris Pierson. It was
originally written during my fellowship at the University of St Andrews’ Centre for
Ethics, Philosophy and Public Affairs in Spring 2010. I should like to thank the Arts
and Humanities Research Council for funding the leave necessary to undertake the
fellowship and John Haldane for his generosity (intellectual and otherwise) and
hospitality while at CEPPA.
38