Ratio Juris: Locating the Dignity of the Dead

“Even those who think that death is a continuation, and not an ending, can benefit from contemplating the implications of annihilation. That annihilation would be bad for them explains why it is important to live forever: it is the only way to avoid the evil of annihilation. If, on the other hand, annihilation would not be bad for them, the question arises as to why they value the prospect of immortality.”—Steven Luper [1]

“The human species is only partly natural. It is the only species about which that can be said.”—George Kateb [2]

“Philosophers tend to think that precision is always important, but they have known since Aristotle that that may not always be wise. Sometimes the quest for precision blinds us to certain insights that we can as yet only formulate haltingly; sometimes it blinds us to the importance of pursuing certain questions (and linking them to other questions) even when there is not yet an answer in sight.”—Jeremy Waldron [3]

At Concurring Opinions a couple of weeks ago, Professor Taunya Banks penned a delightfully provocative post titled “Fortune’s Bones: Is There Dignity after Death?” Banks introduces three different historical cases: the 1995 Body Worlds exhibit by Gunther von Hagens; the skeleton of an enslaved man (whose name was Fortune) who died in 1798 and was being studied by the anthropology faculty and students at Quinnipiac University; and perhaps the best known of the three, the story of Henrietta Lacks as recently discussed by Rebecca Skloots in her book The Immortal Life of Henrietta Lacks (2010), that together raise for her the question of whether or not the concept of dignity can be applied to deceased individuals, in other words, “Is there dignity after death?” The following paragraphs conclude her discussion, followed by my attempt to address her question:*

[….] “Scientists and anthropologists might argue that the cases of Fortune and Mrs. Lacks are distinguishable from Gunther von Hagens’ Body Worlds exhibit because the educational value is clearer in the former than the latter. They might also argue, as one Johns Hopkins researcher told me, that the HeLa cell is not part of Mrs. Lacks but has morphed into something quite different.[4] Thus it does not matter that her family consider the cell to be a living part of their deceased family member. Still others like academic Stephen Bates ask whether human corpses are different from skeletons or human cells. (Prenates, Postmorts and Bell-Curve Dignity, Hastings Center Reps. 2008) The more human-looking the remains, Bates writes, the more concerns about dignity seem to arise.

According to my colleague Leslie Henry, there are strong arguments for dignity after death as well as some laws that arguably recognize some type of dignitary interest. Physicians usually are required to secure consent from the deceased’s next of kin before using a cadaver to teach medical students. There are statutes that penalize the desecration of grave sites (beyond trespassing). There also is the Native American Graves Protection and Repatriation Act (NAGPRA) which required federal agencies to return ‘cultural items’ including human remains, to the descendants of Indian tribes and Native Hawaiian organizations. Granted none of these laws directly touch on the cases of Fortune and Mrs. Lacks.

In the end I offer no suggestions. But I am concerned because too often the people denied dignity in death, were also denied dignity in life.”

* * * * * * *

I’ve been pondering Professor Banks’ thoughtful and moving post for some time now and have arrived at the point at which temerity prompts me to share my tentative thoughts on (explicit and implicit) questions raised by her piece. I think it is true that there is something to the notion of a “dignitary interest” with regard to the dead (as individual persons). This is not my preferred term, however, as it suggests the decedent herself has post-mortem “interests,” which is eminently arguable and, I believe, not true.[5] But if we understand this dignitary interest as having something to do with the attitude and respect of the living toward the decedent as a previous embodiment or incarnation of transcendent value, a value which transcends sentience, then it’s possible to articulate a stipulative or précising definition which allows for the possibility (in some sense) of “disrespecting the dead” but not harming them. It is not that the dead person’s bones or cremated ashes, or some scientific sample of cells, as such, that incarnates the transcendent value of dignity; so we cannot speak, literally at least, of “continuing assaults on the dignity of the deceased.” Rather, with death, it is our memory of the fact that a person, with a unique narrative history, a person of intrinsic dignity and incomparable value or worth has passed, and death, as the converse of life, is an occasion for our individual and collective reflection on—as remembering, commemorating, and honoring—the precious nature of personhood, the powerful concept of dignity, and the nature of human normative agency. Our treatment of a dead person’s remains will reveal our ability to respect and to honor, and is therefore symbolic of, a human being who, for a brief period of time, was locus of the dignity of humanity in his or her own person, an individual who was, at one time, the incarnation of transcendent value.

In addition to or apart from recognizing the expressed preferences of the decedent about what to do with her remains, or attempts at inferring the wishes (e.g., by way of immediate family, closest friends, or end-of-life caregivers) of the decedent, and sans any traditional burial or after-death treatment and (ritualistic) practices associated with a decedent’s worldview, I think we might somehow express, reveal or evoke something of the dignitary attitude of respect in the manner in which we respond to the death of an individual and treat their remains. Such expression can come not only from those who knew or were close to the decedent, but also from those whose task is to handle the remains. We might, for example, mandate a period of memory and commemoration for the decedent that recognizes an individual of incomparable worth, of inherent dignity has died (regardless of whether such dignity was respected in the person’s lifetime or what kind of life that person lived; hence, again, this is not about any post-mortem interest as such), and deserving of acknowledgment and remembrance if only for this reason. I believe the manner in which we handle the remains can and should be the occasion for honoring or celebrating the dignity of personhood, for ritual remembrance of the respect owed humanity in the individual person. The remains can become the occasion or means whereby we honor the transcendent value of dignity that we failed (or may have failed) to recognize and respect during the person’s lifetime. This demonstration of respect I imagine to be very close—similar or analogous—to the Confucian understanding of the proper performance of li.[6] As Banks notes in her second paragraph above, there are some legal rules for particular situations or occasions that can be viewed as (directly or indirectly) permitting or encouraging demonstration of this respect.

The question then becomes whether or not we can find some means whereby we generalize such an attentive and focused demonstration of dignitary respect for all decedents, perhaps through engagement in a (secular) ritual celebration or honoring of the dead person in a way that affirms and reinforces our belief in human dignity and the incomparable value of normative human agency. After Stephen Darwall, this takes the form of recognition respect, distinguished from appraisal respect insofar as the former lacks the latter’s conceptual connection to merit and esteem: “Recognition respect concerns, not how something is to be evaluated or appraised, but how our relations to it are to be regulated or governed.” Following the performance of such a secular ritual (at least in the case of those whose wishes are not known or whose worldview does not prescribe some kind of funeral service), which might be as simple as a published or public proclamation (that speaks to the dignity and inviolability of the human person), perhaps in conjunction with or followed by a period of time in which the remains are not in any way disposed or used for scientific research, the decedent’s remains—be they bones and teeth, cremated ashes, or simply cells—could then be buried, scattered, or enlisted for scientific research. At this point in time, that part of ourselves which belongs indissolubly to the natural world (for a ‘transcendental’ or non-reductionist naturalist like Grant Gillett, this ‘part’ would be a human being absent the narrative ‘space’ of reason and will) and by which we make sense of the notion of embodiment, can now return to the natural world (including the natural world as understood in the sciences), no longer a locus of transcendent value in the form of human dignity. This (so to speak) return to the natural world upon the fulfillment of such conditions represents one point along the continuum of dignitary respect for the dead, for the living, and for those who follow us as loci of transcendent dignity. To leave our “human world” and return to the greater natural world is something the psalmist and secularist, the Muslim and the man-in-the-street, the Daoist and the Buddhist, can alike appreciate in a language that connotes spiritual, metaphysical and aesthetic sensitivity and sensibilities in speaking to the grandeur, the sublimity, the harmony, proportion, and beauty of nature. (Bear in mind that things are a bit different in the case of Mahāyāna Buddhism because, after Nāgārjuna, nirvāna and samsāra are said to be ‘not different’ when viewed from the ultimate nature of the Dharmakāya, for an individual can attain nirvāna in this lifetime by following the Buddhist path. Their duality is only (a) conventional (truth), for if they were ultimately different (or expressed an absolute truth) this would be impossible. By implication, this speaks to the conventional duality of life and death as well, hence a ‘return’ to nature is only true conventionally speaking, and thus for any of us who have not had the requisite spiritual realization that establishes the non-difference between nirvāna and samsāra…or life and death, it will appear as absolutely true. Something comparable to this might also be the case in Daoism.) But as a condition of this return to nature, a ritual or solemn acknowledgement of transcendental dignity and intrinsic inviolability of the human person in reference to the decedent, including a proscribed period in which the decedent’s remains are not to be used for any educational or scientific purposes, could go some way toward communicating the all-important value of human dignity and our respect for the nature of personhood as indicative of the manner in which our species transcends the natural world.

Now, for various reasons, some of them of Kantian provenance or inspiration, showing respect for such dignity has been taken to mean acknowledging the person’s (normative) human agency (as a capacity), in the sense that the ways of being (a) human (animal) distinguishes us from our nonhuman animal relatives. This means honoring both our “being” and “willing.” David Luban, who prefers a naturalistic and non-metaphysical account of dignity—albeit one with “ontological heft”—believes Kant was speaking more about “willing” than “being,” but I think he’s mistaken on this point. In any case, Luban’s discussion of dignity is largely intended for legal ethicists (although it has wider value outside that application, as he himself suggests and demonstrates), and in this context he speaks of the lawyer listening to the client’s “story,” every person having a “story” to tell insofar as they are “authors” in some measure or another of their lives (and, as characters, part of the narrative accounts of at least some of those with whom they have interacted over the course of their lives). These stories revolve around “meaning” of various kinds, however inarticulate or disturbing we might, as outsiders, find them to be (think of those accused of the most heinous crimes), for to “have a story,” Luban writes, “means being the subject of experience, and it means existing in a web of commitments, however detestable or pathetic those commitments may be.” Luban’s naturalistic rendering of dignity appears unable to account for how we might accord dignitarian respect toward the decedent, after all, the author of the story, the subject of the experience, is no longer with us. And yet he or she may become a character or even protagonist in the stories of those who survive and follow the decedent, for we are, as has been said “inveterate story tellers” (folk psychological theory, say, like that proffered by Daniel Hutto, is here quite useful in accounting for this fact). These stories could be seen as functioning to remind us what it means to be human, involving questions of individual and collective identity, memory, and meaning, for example.[7] In short, we treat the dead with respect (more about this in a moment), as a reminder to the living what it means to live a human life, for death is a vivid and insistent reminder of the value and beauty of life (human and non-human), a value and beauty that becomes part and parcel of the best stories we tell. Luban’s approach might be filled out or simply supplemented with recent work in narrative ethics and narrative metaphysics, especially if we should want to employ it for treating the question of “dignity after death.”

For now at least (i.e., until we’ve come up with a richer—more broadly ethical and metaphysical—narrative account that might serve our purposes), I suggest we go back to Kant, for the respect we show the dead is more than their potential to become part of the stories we tell, or our willingness to listen to their stories, even if that is one way we show our respect for the dignity of others during their lifetimes. In fact, more than a few people die alone, without loved ones or others who will recall their lives as part of any narrative (Henrietta Lacks was fortunate to have her story eloquently written by Rebecca Skloot), however modest. It is about the respect we bestow upon the dead person because the dead remind us of the incalculable, intrinsic worth, and thus non-instrumental value of human dignity in the living person, of why, as Kant said, we should always treat people as “ends” (‘self-sufficient’ ends at that, and thus not in the sense of some thing or state of affairs to be brought about by us) and never merely just as “means” (the ‘Formula of Humanity as End-in-Itself’). Death, as we say, serves somehow to give meaning to life (of course the concepts of life and death are mutually—conceptually if not logically—dependent on each other). Kant’s concept of human dignity (as Martha Nussbaum and Michael Rosen each remind us, there are other forms of dignity) is “metaphysical” in a secular sense (there are of course religious conceptions of dignity, and Kant’s treatment comes awfully close to revealing religious or religious-like sentiment when he speaks of the ‘inviolable holiness’ of humanity and if his notion of Achtung is seen as not only denoting ‘respect’ but ‘reverence’ as well), and I think it is only a metaphysical conception of the person that licenses us to speak in any significant or meaningful way about treating the dead person with respect and dignity (insofar as the ‘metaphysical’ for Kant is beyond or other than the ‘phenomenal,’ natural, or material world). Thus a person’s natural remains, as it were, might at some point be used for scientific purposes, given autonomous consent or provided the occasion for ritual honoring and remembrance of the sort briefly described above has occurred. If such a ritual is reduced to a debased form of bureaucratic protocol, a ritualistic (in the pejorative sense of a mindless habit or a mechanical performance) “going through the motions,”—and there’s no way we can guarantee this can be avoided—we have failed to celebrate and honor the dignity of the deceased as emblematic of the dignity of the human person, in effect denying there is any dignitary “interest” with regard to the dead.

Bernard Williams correctly pointed out that “The ground of the respect owed to each man thus emerges in the Kantian theory as a kind of secular analogue of the Christian [actually, in the first instance, Judaic insofar as it appears in Genesis of the Hebrew Bible] conception of the respect owed to all men as equally children of God. Though secular, it is equally metaphysical….”[8] From the vantage point of Liberal political philosophy, democratic pluralism, and Rawlsian “overlapping consensus,” the advantage of a “thin” and “secular” metaphysical conception should be of some importance, as it might be endorsed by both the religious and non-religious (save those who are not simply agnostic but rather dogmatic naturalists or materialists, metaphysically speaking). We need only acknowledge or appreciate this non-naturalist metaphysics in a “thin” or minimalist sense without subscribing to the specifics of Kant’s own metaphysical views. Kant did of course link dignity to our capacity for self-legislation, morally speaking (we are sources of ‘law’), but his emphasis on the inviolability and equality of dignity possessed by each of us in virtue of our metaphysical status as human beings is what is foremost and paramount, even if it is the possession of this or that attribute or property that prompted Kant to explain how we are at once both part of (our ‘empirical’ nature) and outside of the created or natural world. It is this Kantian metaphysical conception, greater in scope if not deeper in value than the (or ‘a’) moral principle of autonomy that prevents dignity from being “redundant” (vis-à-vis autonomy) as argued by the bioethicist Ruth Macklin. It is this Kantian concept that is something other than what Stephen Pinker describes as “squishy, subjective notion,” even if its origins as an idea lie in a somewhat dim or inchoate awareness that has functioned as an intuitively axiomatic value in the form of a presupposition or assumption prone to the “frequently dismissive or hostile attitude” among those few philosophers who have taken notice of the concept (Michael Rosen). Ronald Dworkin was right to lament the fact that the “concept of dignity has become debased by flabby overuse in political rhetoric: every politician pays lip service to the idea, and almost every covenant of human rights gives it pride of place.” But Dworkin himself acknowledges its indispensability:

“[T]he abstract standard itself—the basic understanding that dignity require equal concern for the fate of all and full respect for individual responsibility—it not relative. It is genuinely universal. I do not mean that that abstract standard has been or is universally endorsed. On the contrary, it plainly has not and is not. But if we believe in human rights at all—or in any other rights, for that matter—we must take a stand on the true basis of such rights. [….] [U]nless you are tempted by a global skepticism about human and political rights, you must find a basis for such rights in some formulation of that kind, and you must embrace that formulation not because you find it embedded in some culture or shared by all or most nations but because you believe it to be true. You must make applications of your basic premise sensitive to a variety of circumstances that vary across regions and nations. But your judgments must be grounded finally in something that is not relative: your judgment about the conditions of human dignity and the threats that coercive power offers to that dignity.”[9]

Such dignity as we possess as an intrinsic metaphysical value is not dependent upon the exercise of what Kant referred to as our morally self-legislative capacity or the realization of this or that attribute or property because, as Michael Rosen notes, personhood for Kant, that is, the “humanity in my person,” is logically (because metaphysically) “prior to the power of choice and overrides it,”[10] hence its “unconditionality” and the principal reason Rosen can claim Kant is “no humanist,” for human beings are embodiments of transcendent value. Thus even if one important and necessary or obligatory way we demonstrate respect for persons is by fulfilling the conditions of normative human agency and providing freedom for expression of the powers and capabilities associated with human nature or human autonomy, dignity as a metaphysical property is not dependent on these or any other actions for it is, metaphysically speaking, intrinsic to our nature as human beings, for we are by definition embodiments of transcendent value, of “unconditional” worth (a somewhat mysterious and dualistic mix, so to speak, of the Kantian ‘phenomenal’ and the ‘noumenal’). This is why we say someone cannot rid themselves, surrender, or disavow their dignity, thus it always possible for us to demonstrate self-awareness and self-respect with regard to such dignity: “Individuals are capable of acting in ways that show their intrinsic dignity even in the most humiliating or degrading circumstances” (Rosen), even or especially if someone deliberately demonstrates a lack of respect or self-respect with regard to its possession, or if others try to undermine our capacity for expression of that dignity. Hence, as Rosen reminds us, “We do not have to bring the dignity of humanity into being or stop it from being destroyed, but we do have to find ways for acting that express esteem for it.”

No doubt the most urgent and important expressions of that esteem should occur in the instance of human lives here and now, still, there does seem something to be said for a secondary, derivative, or parasitic expression of such esteem even at and after death, if only to remind us of what is lost with the death of a human person. Believing this does not mean or imply that life itself is of absolute value, after all, if Kant’s conception of dignity is a non-naturalist, metaphysical one, there may be some things of value beyond life as such, in Kant’s words: “If a man can preserve his life in no other way than by dishonoring his humanity, he ought rather to sacrifice it” (this should suffice my way of showing that Christians don’t possess a monopoly on appreciation of ‘sacrifice’ on behalf of transcendental value). In fact, it was Friedrich Schiller (1759-1805), whom Rosen calls upon to supplement Kant’s account of dignity, who has something intriguingly relevant to say in this regard, for he argued, in Rosen’s words, that “respect for humanity requires us to mark the value of human being even (or indeed especially) when the gross material facts of our animal existence are inescapable—in contexts of death and suffering.” Our reflections, arising out of Professor Banks’ post, have revolved around the context of death, while suffering is relevant to the recognition of human rights, the meeting of a threshold of “central capabilities” (Martha Nussbaum), questions of justice generally, and morality yet wider still.

* What follows is an elaboration of my original comment to Professor Banks’ intriguing post.

Notes:

[1] Steven Luper, The Philosophy of Death (Cambridge, UK: Cambridge University Press, 2009): 3.

[2] Although Kateb helpfully explains what he means by humanity’s partial “break with nature,” in his book, Human Dignity (Belknap Press of Harvard University Press, 2011), for a fuller philosophical elaboration of this idea, please read all three volumes of a trilogy by Raymond Tallis: The Hand: A Philosophical Inquiry into Human Being (Edinburgh University Press, 2003), I Am: A Philosophical Inquiry into First-Person Being (Edinburgh University Press, 2004), and The Knowing Animal: A Philosophical Inquiry into Knowledge and Truth (Edinburgh University Press, 2005).

[3] Jeremy Waldron, “Is Dignity the Foundation of Human Rights?” (January 3, 2013) New York University School of Law, Public Law Research Paper No. 12-73. Available at SSRN: http://ssrn.com/abstract=2196074

[4] “In 1951 researchers at Johns Hopkins University took the cells of Henrietta Lacks, a poor black Baltimore mother of five who was dying of cervical cancer, without her consent and developed the ‘immortal’ HeLa cell line, a major human cell line used globally in scientific research.”

[5] Cf. John Donnelly’s quotation from Kierkegaard: “‘But when one relates himself to one who is dead, in this relationship there is only one, for one dead is nothing actual.’” Donnelly explains: “The relationship in question is entirely unilateral as the deceased qua object of the living person’s propositional attitude forces the living to come to grips with their own self-understanding. Kierkegaard writes: ‘One who is dead is not an actual object; he is only the occasion which continually reveals what resides in the one living who relates himself to him or which helps to make clear how it is with one living who does not relate himself to him.’” See Donnelly’s essay, “The Misfortunate Dead: A Problem for Materialism,” in his edited volume, Language, Metaphysics, and Death (New York: Fordham University Press, 2nd ed., 1994): 253-169. At the conclusion of his essay, Donnelly discusses what Kierkegaard meant by the idea that “part of the work of love be viewed as the task of remembering the dead.”

[6] I have an introduction to li and other Confucian concepts here: The Confucian Worldview: A Rational Reconstruction.

[7] Grant Gillett has outlined an intriguing conception of (a secular or ‘transcendental naturalist’) “narrative metaphysics and identity” in Subjectivity and Being Somebody: Human Identity and Neuroethics (Exeter, UK: Imprint Academic, 2008).

[8] James Griffin in his book, On Human Rights (New York: Oxford University Press, 2008), informs us that “the egalitarian and individualist implications of the idea that we are made in God’s image lay dormant in Christianity until the late Middle Ages.” I learned of the Williams’ comment about the Kantian claim of equal respect being a metaphysical and thus not empirical proposition from Allen Wood. It is found in Williams’ essay, “The Idea of Equality,” in Joel Feinberg, ed., Moral Concepts (Oxford, UK: Oxford University Press, 1969).

[9] Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Belknap Press of Harvard University Press, 2011): 338.

[10] Michael Rosen, Dignity: Its History and Meaning (Cambridge, MA: Harvard University Press, 2012): 123.

References & Further Reading:

Darwall, Stephen. The Second-Person Standpoint: Morality, Respect, and Accountability. Cambridge, MA: Harvard University Press, 2006.
Donnelly, John, ed. Language, Metaphysics, and Death. New York: Fordham University Press, 2nd ed., 1994.

Dworkin, Ronald. Justice for Hedgehogs. Cambridge, MA: Belknap Press of Harvard University Press, 2011.

Gillett, Grant. Subjectivity and Being Somebody: Human Identity and Neuroethics. Exeter, UK: Imprint Academic, 2008.

Glahn, Julia A. “The Dignity of the Dead?,” available at Inter-Disciplinary.net: http://www.inter-disciplinary.net/probing-the-boundaries/making-sense-of/dying-and-death/project-archives/6th/session-2-ethics-persons-and-dignity/.

Hinerman, Nate and Julia Apollonia Glahn, eds. The Presence of the Dead in Our Lives. Amsterdam: Rodopi, 2012.

Kateb, George. Human Dignity. Belknap Press of Harvard University Press, 2011.

Luban, David. Legal Ethics and Human Dignity. New York: Cambridge University Press, 2007.

Luper, Steven. The Philosophy of Death. New York: Cambridge University Press, 2009.

Rosen, Michael. Dignity: Its History and Meaning. Cambridge, MA: Harvard University Press, 2012.

Waldron, Jeremy. “Is Dignity the Foundation of Human Rights?” (January 3, 2013) New York University School of Law, Public Law Research Paper No. 12-73. Available at SSRN: http://ssrn.com/abstract=2196074.