The Volokh Conspiracy

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Free Speech

Journal of Free Speech Law: "Adding Injury to Insult: Kant on Defaming the Dead," by Prof. David Sussman

An article from the Defamation: Philosophical and Legal Perspectives symposium, sponsored by the Center for Legal Philosophy at UC Irvine.


The article is here; here are the introductory paragraphs:

In a brief and largely overlooked section of the Doctrine of Right, Kant considers the right a person has to retain a good reputation after their death, the acquisition of which he calls "a phenomenon as strange as it is undeniable." Kant here is not claiming that one should never speak ill of the dead, at least if one is speaking truthfully (although Kant does count it "a duty of virtue not to take malicious pleasure in exposing the faults of others"). Rather, Kant's concern is with posthumous defamation: the telling of lies that in some way "stains" the name of the deceased. Kant explains that when such a right is violated, those still alive acquire an obligation to restore the reputation of the dead. This obligation apparently falls on everyone regardless of their relation to the deceased: "[A]n apologist need not prove his authorization to play the role of apologist for the dead, for everyone inevitably arrogates this to himself as belonging … to the right of humanity as such."

Although Kant has no doubt that there really is such a right against posthumous defamation, he is very puzzled by it, admitting that "It is therefore indisputable that there is a basis for such an ideal acquisition for someone's right after his death against those who survive him, even though no deduction of its possibility can be given" (emphasis added). Kant's perplexity is understandable. He considers the right to a good reputation to be part of "private right," concerning "what is externally mine or yours" such as property, contractually obligated performances, and the peculiar category of "domestic right" that heads of households supposedly have with respect to their spouses, their children, and their domestic servants. The violation of private right involves the wrongful infliction of harm or loss in a way that would normally call for at least some sort of compensation from the party responsible. So understood, this right immediately raises the question of whether, and in what ways, the dead can be harmed or deprived of something, and more broadly how the dead can still have interests that merit legal protection.

Whether the dead can still be harmed or helped is a long-standing philosophical question going back at least to Aristotle (who answers both in the affirmative). If the only things intrinsically good or bad for a person are their experiences (or aspects of experience, like pleasure), then death clearly puts a person beyond all injury (assuming, as Kant does, that death is complete annihilation). If we understand a person's good to involve not just experience but the objects of what they desire or otherwise care about, there remains what to make of those desires once the subject of those desires is no more. If I no longer exist after I die, just who could it be that could be benefited by the satisfaction of the desires that I developed when I was alive?