The Power to Bequeath

ROBERT LAMB

THE POWER TO BEQUEATH

(Accepted 27 July 2013)

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 desig-nate the beneficiary of a posthumous transfer through a written will. Yet this aspectof property ownership has received little in the way of philosophical attention ormoral justification. Philosophers tend either to accept bequest as a conventionalfeature of property ownership or reject its legitimacy on egalitarian grounds. Dis-satisfied by both approaches, this paper: (i) provides a conceptual individuation ofbequest, drawing a distinction between it and other sorts of property transfer, such asinheritance; (ii) shows how the canonical, historical accounts of private propertyownership have failed to justify bequest; (iii) outlines what any plausible justificationof bequest will require, which I argue is an account of the posthumous interests suchtransfers serve; and (iv) concludes by briefly sketching the normative relevance of myjustificatory account of the power to bequeath.

What should happen to a private property holding after the death of itsowner? Should the late proprietor be allowed to posthumously transferthe holding to a person of her choice, as conventionally designated by afinal will and testament? Should it pass directly to that person’sdescendants or kin? Might it be legitimately confiscated (in whole or inpart) by the state to be redistributed according to a particular accountof justice? Or should it somehow become ‘unowned’, such thatanother member of the political community could then acquire itthrough appropriately specified means? Though clearly central to anyaccount of legitimate ownership within a political society, such ques-tions are rarely subject to sustained theoretical scrutiny.

Philosophical considerations of the posthumous transmissibility of aproperty holding tend to display commitments to one of two differentpositions, neither of which seems wholly satisfactory. In discussions of pri-vate property amongst legal theorists, the posthumous transmissibility

Law and Philosophy � Springer Science+Business Media Dordrecht 2013DOI 10.1007/s10982-013-9195-0

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 theoristsdefer frequently to A. M. Honoré’s influential essay, which provides anaccount of what he calls the concept of ‘full ownership’ claimed to bevisible in all ‘mature’ legal systems.1 Honoré identifies the power ofposthumous transmissibility as one of the definitive aspects of own-ership, along with the right to possess, the right to use, the duty not touse harmfully, immunity from expropriation, the absence of term andso on.2 Posthumous transmissibility is thus left both unquestioned andunjustified as a legal right and moral practice. Honoré’s approachsuggests that the concept of property ownership has some essentialcharacteristics. These characteristics, such as the rights to use of, andsecurity for, our property are considered to be part of the meaning ofthe concept itself: the justification for the various aspects of ownershipis on this view presumably parasitic on the justification for ownershipitself. The claim that ownership can imply posthumous transmissibilityis nevertheless presented by Honoré simply as an analytic truth, oneapparently deducible from its existence in modern legal systems:beyond this fact, he provides no argument, no moral, legal or politicaljustification for its inclusion. This approach is unsatisfactory insofar assuch a view of the concept implies that there is an over-arching, stableconcept of property ownership, rather than a number of competingconceptions of a contingent social practice. In the same way as we canconceive of democracy without elections and football matches with-out 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 theconventional aspects associated with it in modern legal systems. Anyanalysis of the legal concept of ownership surely cannot function as aconvincing moral or political justification for its existence, even withinany appropriately localized ‘Western’ context.

1 A.M. Honoré, ‘Ownership’, in A. Guest (ed.), Oxford Essays in Jurisprudence (Oxford: ClarendonPress, 1961), pp. 107–147; Lawrence Becker, Property Rights: Philosophical Foundations (London: Routl-edge and Kegan Paul, 1977), pp. 7–23; Stephen Munzer, A Theory of Property (Cambridge: CambridgeUniversity Press, 1990), pp. 15–36.

2 Honoré is careful to emphasise that none of these rights, duties and powers he presents as part ofthe concept should be regarded as necessary conditions for ownership to obtain. We can thus conceiveof a particular instance of ownership occurring that does not include any form of posthumous trans-missibility: we might say that X owns Y in the sense of having most of the customary legal relationswith other agents yet nevertheless acknowledge the absence of any right to posthumously transfer Y toZ. 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.

ROBERT LAMB

Discussions of rights of posthumous property transfer within con-temporary political philosophy have taken a radically different tone.Considerations of such rights appear most often within writings aboutintergenerational justice, wherein posthumous transfers are customarilypresented as frustrating the achievement of that goal. The claim that tendsto be advanced is that the transmissibility of ownership rights facilitatesunjustifiably inegalitarian outcomes and because of this posthumoustransfers should be significantly curtailed or even prohibited entirely.Stuart White, for example, observes that ‘contemporary capitalist societiessuch as Britain and the United States exhibit very sustainable inequalitiesof wealth’ and then suggests that although the causes of such inequalitiesmight be multiple, ‘few specialists would deny that one major source…isthe conventional institution of inheritance’.3 The conclusion he thenreaches is that such inequality-generating transfers should be subjected toa very high rate of taxation – in his view, somewhere close to 100 %.4

Michael Otsuka goes even further, defending an egalitarian proviso on anyestablished rights of private ownership that renders posthumous transferscompletely illegitimate. For him, because such transfers will inevitablygenerate inequalities within and across generations, property owners‘should be forewarned that any worldly object they… [legitimately ac-quire] will lapse into a state of non-ownership upon their death and hencewill not be bequeathable’.5

There are reasons to be dissatisfied with arguments that urge theprohibition of posthumous transfers on egalitarian grounds. Proba-bly the most striking one is that there would seem to be no reasonnot to extend the egalitarian proviso to all forms of gratuitous

3 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 InheritanceTax?’, The Political Quarterly, 79 (2008): 162–171. Stephen Munzer advances a similar argument (whichhe applies also to inter vivos gifts), while remaining agnostic about how such transfers should berestricted (A Theory of Property, pp. 380–418). Though he did not make much of the issue in his earlywriting, in Justice as Fairness: a Restatement (Cambridge, MA: Harvard University Press, 2001), JohnRawls outlines his moral commitment to preventing excessive intergenerational inequalities ofopportunity through the regulation of posthumous property transfers. For a discussion of Rawls’s viewson 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, MartinO’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 andBeyond (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 whichit could be acquired by another who, in turn, will have legitimate title to that holding whilst alive, but willbe without the power to direct ownership after death (Libertarianism without Inequality, pp. 35–39).


transfers. If the moral objection to posthumous transfers is that theyresult in material inequalities, this is clearly just as applicable to intervivos gifts. If it is accepted that posthumous transfers treat thirdparties unfairly or result in unequal distributive shares, such a con-clusion undoubtedly applies to cases in which the giver of the gift inquestion is still alive.6 This point is in fact acknowledged andembraced by Otsuka, who widens the scope of his argument tosuggest that all forms of gratuitous transfers should be prohibited.7

Any egalitarianism that prohibits non-trivial gifts (posthumous orotherwise) obviously places potentially huge restrictions on indi-vidual freedom. As White points out, this observation is not inter-esting in itself and requires some account of the objectionable natureof the coercion in question in order to carry any normative weight.8

Any claim that such a restriction on individual freedom is prob-lematic or unjustifiable will, as White notes, require an account of a‘morally significant interest’ that is unduly burdened in the process.9

6 One relevant difference between inter vivos and posthumous transfers could be that instances of thelatter do generate a form of inequality that is not a consequence of the former. In the case of gifts ormarket transactions, third parties cannot claim to have had their relative bargaining power affected: ifJohn gives X to Julian rather than to Melissa, then although Melissa’s bargaining power has decreased bythe value of X with regard to Julian it has also increased by the value of X with regard to John. Thissymmetry of bargaining power in such transactions vanishes when they take place posthumously: inthis case Melissa’s bargaining power with regard to Julian would have decreased by the value of X, butshe 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 cannotbe taken for granted.

7 He suggests that while ‘there would be little reason from an egalitarian point of view to interferewith 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 onnon-special occasions are objectionable and should be prohibited (Otsuka, Libertarianism withoutInequality, 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 post-

humous transfers need not be grounded in only a concern for a particular morally valuable exercise ofliberty, but also from a rejection of the claim that it is implied by a commitment to equality. Few (ifany) egalitarians believe that there can be no such thing as a justified inequality of some description, andthere is the need to spell out what is wrong with the particular inequalities generated by instances ofnon-trivial posthumous property transfers. For example, the prominent egalitarianism advanced byRonald 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 Dworkinianview of posthumous transfers, see Matthew Clayton, ‘Equal Inheritance: An Anti-Perfectionist View’, inGuido 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 supposedunfairness intrinsic to the transfer in question, but rather on the invocation of an empirical claim aboutthe causes of significant or unacceptable levels of material inequality within societies. The fact that thisis an empirical claim means of course that it provides in some sense a contingent rejection of post-humous transmissibility: presumably if the choices made by testators did not generate the inequalities inquestion (perhaps because they were motivated by some kind of egalitarian ethos), the propertytransfers could no longer be thought unjust.

ROBERT LAMB

One of my aims in this article is to show that the power tobequeath a property holding can be defended with reference to theposthumous interests it serves. I argue that the justification forbequests is ultimately not different in any morally relevant sensefrom that of gifts and that both sorts of property transfer should bethought equivalent when theorizing about distributive justice, suchthat the interest they serve is sufficiently strong to undermine anycase for their prohibition and that regulation through taxation is asuitable normative conclusion for liberal egalitarians. To advancethis argument, I pursue four distinct objectives: (i) I individuate theconcept of bequest, drawing a sharp and important distinctionbetween it and other sorts of property transfer, including the oft-ignored difference between bequest and inheritance; (ii) I show howthe most influential liberal accounts of private property ownership inmodern political thought have either ignored or have failed toadequately justify bequest; (iii) I outline what any plausible justifi-cation of bequest will require, which I argue can only be an accountof the posthumous interests such transfers are intended to protect;and (iv) I conclude by briefly considering the normative reach orrelevance of my justificatory account of bequest and tentativelysketch its possible implications for theorizing about distributivejustice.

I. DEFINING BEQUEST

A necessary starting point for my discussion is to offer some defi-nitions and draw some important conceptual distinctions betweendifferent types of property transfer. The specific focus of this article isbequest. The posthumous aspect of a bequest – the fact thatsomeone has to die in order for the property transfer to take place –obviously distinguishes bequests from gifts, exchanges, contracts andany other forms of inter vivos, consent-based transactions in whichboth parties need be alive. Bequests and gifts are distinguishablefrom those other consent-based transactions by virtue of their gra-tuitous nature: although all involve the exchange of legal statusestowards a holding that is found in all property transfers, in suchgratuitous cases the transferor can at no point be under the legalduty to perform the transaction that is present in sales and contracts.


Although subject to frequent colloquial conflation, it is not onlypossible but extremely important to distinguish the concept ofbequest from that of inheritance, as the two moral practices havedifferent justificatory implications. When understood narrowly,inheritance refers to the right to receive the private property ownedby a spouse, parent or family member on the event of that person’sdeath. The recipient of an inheritance is determined by her satis-faction of a specific, established relational criterion and is thereforecompletely independent of any desires held or expressed by theowner 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) wherethere exist established laws of familial succession. The effect of theselaws is to make posthumous familial transfers of a certain proportionof property compulsory. Within such legal systems, bequest is aquite separate power from this right of inheritance, such that tes-tamentary freedom is limited to the surplus proportion of ownedproperty beyond familial succession.10

Bequest can be understood to denote a quite different, morecapacious concept than inheritance. It can be understood as thepower to alter legal relations of ownership such that a person’sproperty can be posthumously transferred to any person or institu-tion of choice, regardless of any familial (or indeed any specifiedrelational) connection. The recipient of a bequest is determined bythe desires of the testator and is completely independent of thesatisfaction of any relational criteria. This difference in definitionmatters when it comes to the issue of moral justification. This isbecause inheritance, as described here, refers to a transfer that paysno attention whatsoever to the wishes of the owner of the propertyin question and instead places all moral emphasis or relevance on theentitlements held by the familial recipient: it can be justified throughreference to values such as the importance of bonds of love, familyand kinship or to the particular duties that parents have to children.By contrast, bequest, as delineated thus far, places all moral emphasisor relevance on the wishes or interests of the particular testator, tothe exclusion of any concern with those of the intended recipient.

10 For a richly detailed, comparative sociological analysis of the laws regulating inheritance andbequest in France, Germany and the United States, see Jens Beckert, Inherited Wealth (Princeton:Princeton University Press, 2004), pp. 21–82.

ROBERT LAMB

Thus conceived, in one important sense, bequest pays no attentionto any facts or value judgements about the relationship betweentestator and recipient: what is instead important, as will be fleshedout further below, is how that relationship or recipient is regarded bythe testator. So, a bequest could be legitimately made to a charity orcorporation as much as a family member; indeed, it could be madeas legitimately to an enemy as to a friend. Thus, while StephenMunzer is correct in his observation that gratuitous transfers such asbequests are not necessarily ‘unmerited’ in a moral sense, it is nev-ertheless the case that their legitimacy does not in any way dependon or require a stable account of what counts as merit or virtue.11

Questions about the legitimacy of and grounds for inheritance neednot make any reference to the moral relevance of a proprietor’s finalwill and testament, whereas questions about the legitimacy of andgrounds for bequest hinge entirely on such moral relevance.

This lack of any necessary, justificatory connection between themoral practices of inheritance and bequest make it possible to offer adefence of one and a 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 inheri-tance, because it weakens the familial bonds that the latter bothreflects and is supposed to serve. His suggestion is that any attempt‘to extend the validity of arbitrary dispositions at the expense offamily relationships is implicitly to weaken the latter’s ethicalstanding’, and therefore concludes that bequest ‘must be classed asunethical’.12 For him, the justification of inheritance does not merelyfail to imply a corresponding justification for bequest but entails anopposition to it. In the same sense, a justification for the power tobequeath does not provide any arsenal of support for inheritance.Thus, in Principles of Political Economy J. S. Mill argues that ‘althoughthe right of bequest, or gift after death, forms part of the idea ofprivate property, the right of inheritance, as distinguished from

11 Munzer, A Theory of Property, p. 380.12 G.W.F. Hegel, The Philosophy of Right, Allan W. Wood (ed.) (Cambridge: Cambridge University

Press, 1991), p. 216. He asserts further that ‘the so-called family of friendship which a will brings intoexistence can arise only in the absence of the closer family of marriage and children. Wills in generalhave a disagreeable and unpleasant aspect, for in making my will, I identify those for whom I have anaffection. But affection is arbitrary; it may be gained in various ways under false pretences or associatedwith various foolish reasons, and it may lead to a beneficiary being required to submit to the greatestindignities. In England, where all kinds of eccentricity are endemic, innumerable foolish notions areassociated with wills’ (The Philosophy of Right, p. 218).


bequest, does not’.13 So whereas Mill asserts that ‘the ownership of athing cannot be looked upon as complete without the power ofbestowing it, at death or during life, at the owner’s pleasure’, herefuses to ‘admit that parents should be compelled to leave to theirchildren even that provision…that they have a moral claim to’.14

Bequest and inheritance are thus two separate forms of propertytransfer, which require moral justifications and explanations that, farfrom being mutually supportive, are capable of opposing each other.

Objections to this sharp distinction are nevertheless conceivable. Itmight be argued that it is a mistake to prise bequest fully apart frominheritance, since it is bound up in the same human practice: that thepower to bequeath merely represents a natural, logical and efficientextension of the concept of posthumous familial transfer in modernsocieties 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 rootedultimately in the same justification: the need for human beings to mostappropriately dispose of their goods after death given their sociality.Whatever sociological or anthropological evidence there may be tosupport such a position, it seems ultimately untenable. The mainproblem with it is that it is incapable of explaining the undeniabledifference in moral status between the power to dispose of propertyaccording to one’s wishes and what must necessarily be the duty to passit on to particular individuals. A defence of the right to inherit mightprioritise the moral relevance of intergenerational familial relations,the particular duties generated by the responsibilities a person owes toone’s family or the needs of one’s dependents. But such argumentsprovide no parallel case for the posthumous transfer of property to aperson or corporation of one’s choice. Despite the ostensible similarities

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 toreceive and enjoy it’. Mill does argue that children are owed duties by their parents that can involve thetransfer of property, but his view is that this duty vanishes once the children are not in a position ofneed, especially should they prove themselves unworthy recipients (Principles of Political Economy,pp. 31–33).

14 Mill, Principles of Political Economy, pp. 33, 35.15 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 ofPolitical Economy, pp. 28–29).

ROBERT LAMB

between these forms of posthumous transfer, there are no obviousreasons to regard the concepts of inheritance and bequest as being inany way connected in a justificatory sense.

II. A HISTORY OF FAILED ARGUMENTS: BEQUEST IN MODERNTHEORIES OF PROPERTY

The history of modern theories of property seemingly fails to pro-vide any compelling justification for bequest: the most prominentrights-based and consequentialist arguments appear to fail uponinspection.16 Within the natural rights tradition, John Locke’s influ-ential theory of property does contain a defence of posthumoustransfer, but it is one that is couched exclusively in terms of inher-itance. For Locke, ‘Children have a Title to part of’ the propertyowned by their parents, because as well as being under an obligationto God to preserve their own life, human beings are likewise ‘boundto preserve what they have begotten’.17 In addition to duties ofeducation and love, Locke insists that parents are obliged to preservea portion of their property for their children, such that they areensured the ‘conveniences and comforts of Life’.18 Parents are boundto provide for the children they beget, partly because they do in factbeget them (and therefore owe them some particular moral duties)and partly because of the unique needs that children themselvesface.19 A child’s right to inherit (and correlative parental duty) isgrounded ultimately in the same divinely ordained moral obligation

16 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 ofEconomic Thought’, in G. Erreygers and T. Vandevelde (eds.), Is Inheritance Legitimate? Ethical andEconomic Aspects of Wealth Transfers (Heidelberg: Springer, 1997), pp. 16–53.

17 John Locke, Two Treatises of Government, Peter Laslett (ed.) (Cambridge: Cambridge UniversityPress, 1988), Chapter I: Section 88. The duty that individuals have to preserve their own lives isspecified at (Locke, Two Treatises, II:6) and informs the whole of Locke’s argument in that text: onseveral occasions, ‘the Fundamental Law of Nature’ is identified as ‘as much as may be, all the Membersof 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, TheLockean 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, ‘Inheritanceand Bequest in Lockean Rights Theory’, in G. Erreygers and J. Cunliffe (eds.), Inherited Wealth, Justiceand 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 partof 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. Itwould seem therefore that a certain quantity or type of property (Locke does not specify which) mustbe reserved for children under all circumstances, which presumably implies a substantial curtailment ofparental behaviour while alive to protect the property in question.


to preserve human life that justifies acquisition in the first place: bothacquisition and transmission are, according to Locke, morallyrequired in order to sustain life.20 Since the justifications for bothproperty ownership itself and its posthumous transfer each reflectGod’s will, rather than that of any proprietor, it is unsurprising thatbequest makes no prominent appearance in Locke’s theory. If privateproperty and its conventional features are grounded in normativelyprior duties related to a Christian teleology, it is hard to see whatmoral weight the wishes of a particular proprietor might have.Locke’s natural rights theory offers no substantive justification orexplanation for the power to bequeath, which gets no more than afleeting and ambiguous mention in the text.21

There have also been some prominent consequentialist attemptsto justify the posthumous transfer of property rights, some of whichhave focused on the individual or social benefits derived from itsexistence. Again, however, they fail to provide an adequate justifi-cation for bequest. Like Locke, Hume appears interested mainly indefending inheritance rather than bequest: his claim is that ‘the rightof succession is a very natural one’, which is in ‘the general interestof mankind’.22 The rightness of succession is something he explainswith reference to the imaginative connection between parents andchildren and how this is manifest in existing practices of ownership.23

However, Hume’s argument does gesture towards the possibility oflegitimate, non-familial posthumous transfers. His suggestion is thatit is right that someone’s ‘possessions shou’d pass to those, who aredearest to them, in order to render them more industrious andfrugal’, since society has been shown to benefit from the cultivationof such virtues.24 This notion of the holding being transferred to

20 Locke, Two Treatises, II:6, II:25–26.21 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 expla-nation is provided. The ambiguous mention of bequest is at (Locke, 1988, I:87) where he writes ‘if anyone had began, and made himself a Property in any particular thing…that thing, that possession, if hedispos’d not otherwise of it by his positive Grant, descended Naturally to his Children and they had a rightto succeed to it, and possess it’ (Locke, 1988, I:87, emphasis added). Though Waldron (1988,pp. 246–247) in particular makes much of this statement, it is unclear that this one instance does reveal acommitment to bequest since the notion of a ‘positive grant’ could simply be a reference to transfersmade during the proprietor’s lifetime rather than posthumously.

22 David Hume, A Treatise of Human Nature, L.A. Selby-Bigge (ed.) (Oxford: Clarendon Press, 1978),p. 510.

23 Hume, A Treatise of Human Nature, pp. 512–513.24 Hume, A Treatise of Human Nature, pp. 501–511.

ROBERT LAMB

those ‘dearest to’ a proprietor seems to place moral emphasis on thedesires of the testator and therefore validates bequest.

Hume’s consequentialism does not, however, seem to provide aconvincing justification of bequest. This is because of the issue ofverifiability customarily faced by consequentialist arguments, whichcan in this case be divided into two challenges. First, there is theempirical challenge to demonstrate the link between the conse-quence in question (in this case the cultivation of a set of individualvirtues and their benefit for society) and its alleged cause (in this casethe practice of bequest). Second the virtues identified (in this caseindustriousness and frugality) must be judged as beneficial to societyas suggested. These challenges seem especially pertinent given thedetails of Hume’s claims. Even if a society happened to be interestedin the promotion of the virtues of industriousness and frugality, astrong commitment to posthumous property transfers might not bethe best way to encourage this. It is true that in order to acquire thepower to bequeath a holding, a testator might indeed need to displaysuch virtues, but it is nevertheless conceivable that the namedrecipient might not.25 It seems perfectly plausible that the institutionof bequest could encourage laziness and profligacy to flourishalongside industriousness and frugality.26 The reason that this isplausible is not simply because there is no requirement for thenamed beneficiary in a proprietor’s will to cultivate such virtuoushabits, but comes back instead to the nature of bequest itself: asnoted above, the justification of bequest must be tied to the wishes ofthe testator, and because of this, the sort of personal virtues deemedworthy of reward and recognition will be entirely dependent onwhat he or she regards as virtues, not any objectively observed set.Bequest implies the power to transfer for any motive deemed

25 Hume’s assumption seems to be that in order for an agent to have something to bequeath in thefirst place, that person simply must have displayed the virtues in question: had she not behavedindustriously and frugally, there would be no property to bequeath and therefore we must admit thatbequest is productive of both virtues. Nevertheless, the display of either virtue is clearly not a necessarycondition for individuals to be able to own or bequeath property: being the beneficiary of transactionsthat involve the good will of others or simple instances of luck can create such a circumstance.

26 The likely prevalence of this phenomenon was suggested by Scottish-American industrialist andphilanthropist Andrew Carnegie, who claimed that ‘the parent who leaves his son enormous wealthgenerally deadens the talents and energies of the son, and leads him to lead a less useful and less worthylife 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 thepolitics of inheritance tax’, (Renewal: a Journal of Social Democracy 15 (2007): 62–71) for a discussion of theviews of Carnegie and also Teddy Roosevelt for the consequentialist case against unregulated inheri-tance.


relevant to the testator, no matter how capricious or how conse-quently useless for the general good, so the claim that it can bejustified with reference to the utility of a particular set of virtueslooks entirely contingent and therefore ultimately quite weak.

Other thinkers have provided a more indirect type of conse-quentialist reasoning when giving an account of the legitimacy ofbequest. The form that such reasoning usually takes is to explain orjustify the various conventional features of private property own-ership with reference to the purpose of that institution as a whole.For example, for Pufendorf, property rights were established becauseGod commanded it, via the general obligation incumbent on indi-viduals to ‘preserve peace, tranquillity and good order’.27 This sort ofjustification for property ownership effectively obviates the threatposed by any questions about the various legal relations that comewith it. Thus, the theoretical strategy Pufendorf employs whenaddressing such relations is simply to trace their legitimacy back tothe original argument for property itself: the general need for apeace-seeking convention. The demands of peace not only justifyproperty ownership as an institution, but also the conventionalfeatures that have developed with it, including the power tobequeath. Pufendorf claims that it is rightfully the case that

most peoples have adopted the custom which is itself a kind of consolation formortality, that a man may make arrangements during his lifetime for the transferof his property in the event of his death to the person he most loves.28

Pufendorf’s indirectly consequentialist justification of bequest is nomore satisfactory than the direct version and not only because itdepends on the acceptance of claims about God’s existence, theparamount desirability of peace and the connection between peace andprivate ownership. It is also the structure of the argument itself that isunconvincing, because it conflates the case for the existence of private

27 Samuel Pufendorf, On the Duty of Man and Citizen, James Tully (ed.) (Cambridge: CambridgeUniversity Press, 1991), pp. 84–85.

28 Pufendorf, On the Duty of Man and Citizen, p. 88. On those occasions when a proprietor diesintestate, this does not mean that his property consequently has no owner. Instead, the children of aproprietor (or the parents if there are no children) can claim ‘rights of blood’: without a written will, thisfamilial right to inherit trumps any rival claims – even if there are owners ‘who may love certainoutsiders 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 ofmankind that the goods which a man has acquired with such labour through his life be regarded asabandoned on the death of the owner and available to anyone to occupy’ (p. 87, emphasis added).

ROBERT LAMB

property with the case for its various features and component parts,which, in turn, implies that property ownership has essentialcharacteristics. As observed earlier, while it might seem alien tocontemporary Western legal systems, it is far from impossible toimagine a world in which property ownership does not imply thepower to bequeath a holding: indeed, as noted above, severalegalitarian political philosophers regard such a radically alternativeunderstanding of property to be demanded by justice. The justificationof property ownership as an institution does not necessarily justify itsconventional features, and the power to bequeath faces a special sort ofchallenge in this regard, due to its connection with death.

III. DEATH AND RIGHTS

There seems then to be a lack of any compelling defence of the powerto bequeath among the most historically influential theories ofproperty. Yet contemporary philosophers have not done much toremedy this. We might expect to find a defence of bequest in RobertNozick’s libertarian Anarchy, State, and Utopia, since such politicaltheories are characterised by their commitment to robust ownershiprights and the powers that come with them. While Nozick does spendsome time unpacking the intuitive attractiveness of gratuitous trans-fers – emphasising ‘the purpose and point to someone’s transferring aholding to one person rather than to another’ – there is no attempt tospecifically justify bequest.29 The power to bequeath might perhaps bethought conceptually implicit given his broader account of justownership.30 If, as Nozick suggests, Wilt Chamberlain holds an invi-olable entitlement to any money he receives voluntarily from a bas-ketball spectator, then it seems plausible to suppose that this sameperson could arrange to leave Wilt his fortune when he dies.

The belief that the power to bequeath is simply an implicitconceptual entailment of a property right cannot be blithelyaccepted, not even by libertarians enthralled by the moral centralityof ownership. Furthermore, this is not only for the aforementionedreason that such a position ascribes essential characteristics to a

29 Robert Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974), p. 159.Though there is atantalizingly brief discussion of the possibility of restricting bequests in certain cases, such as intellectualproperty or some kind of discovery that is so useful to humanity that exclusive ownership of it violatesthe rights of all others (Nozick, Anarchy, State, and Utopia, pp. 181–182).

30 This is clearly what Nozick thinks (Anarchy, State, and Utopia, p. 178).


contingent social institution, but also because it ignores the justifi-catory challenge that bequest faces that other forms of gratuitoustransfer do not: that posed by death. A characteristic of inter vivostransactions – both gifts and market exchanges – is a straightforwardswap of legal statuses. After the transaction has taken place, the legalrelationship between the two parties involved, with regards to theholding in question, completely inverts: the seller or giver, fromhaving rights of ownership over the property, now has duties of non-interference in my ownership of it whilst the recipient, having hadthe duties, now holds the rights. As Hillel Steiner points out, thisstraightforward exchange of legal correlatives that is definitive ofgifts and exchanges is necessarily absent from instances of bequest.31

The reason that the exchange is absent is that the testator neveractually relinquishes his or her right of ownership or the adjoiningpower to waive the duty held by all other individuals not to interferewith that right. When it comes to an individual’s final will andtestament, the testator retains, at all times until her death,32 thepower to alter it and therefore change the recipient of the bequest atany time whilst alive. This power can of course be waived at any pointduring the course of the testator’s life, but if it ever is, the exchangethen ceases to become a bequest and instead becomes an inter vivostransfer. In order for the rights of ownership over any object to beproperly transferred, there must be an agent available to consent tothe transfer and the required exchange of legal statuses, and, whenthe testator dies, this ceases to be a possibility. Given all of this,Steiner’s argument is that no named beneficiary of a bequest can bethought to have any right over the holding in question: bequest is,for him, a ‘legal fiction’, and property rights vanish entirely in theevent of an owner’s death, with the objects in question reverting to astatus of non-ownership.33

31 Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994), pp. 253–254.32 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 testatorcan 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 beneficiaryin a will: rather, Steiner’s suggestion is that no executor can hold any legal relationship to the object inthe first place. This is because in order for that executor to have such a relationship to the object (suchas a duty to transfer it to the proposed beneficiary), the original owner must waive the power he has toenforce the non-interference duty that his ownership generates in other individuals. As Steiner puts it,once the testator is dead, he is ‘not merely contingently, but rather necessarily, incapable of waiving ordemanding anything’ (p. 255).

ROBERT LAMB

Objections to this reasoning are nonetheless conceivable. After all,individuals regularly make contractual agreements that bind futureconduct. Under certain circumstances, if I offer you a job and acontract is agreed upon, it does not matter if the job does not beginfor a further six months: such agreements about the future are madeevery day and generally assumed to be binding. Likewise, whenmaking a will, individuals clearly articulate intentions about whatthey want to happen after they die, and it is difficult, perhaps evenbizarre, to see why such expressed wishes should not be honouredsimply because the event of death required to render them relevanttakes place. Nevertheless, despite how counter-intuitive his argu-ment appears, Steiner is right insofar as bequests are conceptuallymore akin to promises than to contracts in that they do not bindfuture conduct in the relevant legal sense and the testator can always(while alive) alter the terms of the bequest or reject it outrightwithout incurring a liability of the sort that I would if I reneged onmy job offer: ‘I hereby dispose’ really means ‘I hereby dispose pro-vided I do not change my mind at any time while still alive and stillof sound mind’.

Steiner’s rejection of bequest stems ultimately from his adherenceto the ‘will’ (or ‘choice’) theory of rights, advocates of which insistthat the purpose of a right is to enable individuals to make choiceswith regard to the duties held by others. The will theory stipulatesthat a necessary, definitive characteristic of a right is that it must beexercisable.34 In light of this it is no surprise that individuals cannot bethought of as rights-bearers after they die, because any such exercisebecomes impossible.35 The case against bequest made by Steinerclearly depends on a thesis about how the relationship betweenanalytical jurisprudence and normative political theory should beunderstood and what a particular model of rights is supposed to tellus. His argument is that we can rule out the legitimacy of establishedrights should they fail to fit with what are thought to be theirrequired definitive characteristics. Established rights, even if they arerecognised by a particular linguistic community, that fail to comply

34 The will theory was most systematically delineated by H.L.A. Hart. See Hart, ‘Are there anynatural rights?’, Philosophical Review 64 (1955): 175–191; Hart, Essays on Bentham: Jurisprudence andPolitical 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.


with the correct theoretical definition of what a right is must bedismissed as nonsensical. However, the problem with this position isthat the identification of the relevant, supposedly definitive charac-teristic – in this case the exercisability of rights – is itself alreadydependent on what are claimed to be shared, established meaningswithin a particular linguistic community, inviting a charge of circu-larity.36 Such theories of rights simultaneously appeal to ordinarylanguage as vindication for their particular model, while on the otherstress its irrelevance when the model in question cannot make senseof particular established practices, such as, in this case, the power tobequeath. In the case of the will theory, the claim is that ourcommon understanding of the function of rights is such that theymust be exercisable and therefore that one of the rights we com-monly think ourselves to possess (that of posthumous transfer) isillusory. But there is evidently a tension here when it comes to whatwe are supposed to regard as our shared understanding of the natureof rights. And it is far from clear why it is the legitimacy of theexisting right to bequeath that is sacrificed rather than the theoreticalmodel against which it is measured.

We might instead treat the ability to adequately articulate thoserights that we already recognise as a virtue of a theory of rights. Inother words, rather than think of theories of rights as technicalmodels against which our normative values and social practicesshould be measured, it seems at least as plausible to think of thearticulation of our values and practices as tests for our models ofrights. So, in this case, instead of observing the incompatibility of thewill theory of rights with our moral practice of bequest and rejectingthe possibility of the latter, a legitimate response would be to rejectthe plausibility of the former.37 There is the need to determinewhether an alternative understanding of rights can provide anaccount of bequest. The obvious alternative is the ‘interest’ or‘benefit’ theory of rights, which regards the function of rights asserving the interests of their holders. The question to be then

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. 251–274. See also Wenar, ‘The Nature of Rights’, Philosophy & Public Affairs 33 (2005):223–252.

37 Such an approach would seem to be in tune with much recent work on theories of rights, whichcall for a more pluralistic understanding and reject any attempt to explain their function through any ofthe singular models thus far developed. See, for example, Rowan Cruft, ‘Rights: Beyond Interest Theoryand Will Theory’, Law and Philosophy 23 (2004): 347–397; Wenar, ‘The Analysis of Rights’.

ROBERT LAMB

addressed is whether a compelling account of such interests can beprovided in the case of bequest and whether it can account for thedifficulty raised by death.

IV. THE CASE FROM POSTHUMOUS INTERESTS

It would seem that any account of interests capable of successfullygrounding bequest will need to differ from that used to justify intervivos gifts. This is because the aforementioned challenge posed bythe event of death can simply be restated to apply to the alternative,interest-based understanding of rights: if, after death, individuals losethe ability to exercise their will, do they not likewise relinquish anyinterests they had while alive? There appear to be two different waysto formulate the concept of posthumous interests. First, they can beunderstood as referring to the interests held by individuals after they die.As some have pointed out, if liberal philosophers are genuinelycommitted to the eschewal of thick metaphysical claims and toimpartiality towards competing conceptions of the good, then it isnot clear that they can consistently deny any claim that the dead areholders of interests in a meaningful sense.38 Nevertheless, even if thiswere to be accepted, it is not clear how going down the route oftreating the dead as bearers of interests themselves could provideany justification for bequest. This is because the very act ofbequeathing involves a transfer of ownership, the alienation of one’sproperty. The purpose of a bequest is precisely to steer the directionof one’s property towards another individual who remains alive andwho is then in turn endowed with the various rights and powersassociated with ownership. So while the ascription of interests to thedead could explain why we might be required to maintain a gardenthat someone cultivated carefully during her lifetime, it seemsincapable of explaining why we should care about the deceasedperson’s wish for the garden to become the property of somebodyelse. Once such a right is transferred, the recipient will in turn thenpossess the same powers of transmissibility, use and so forth, suchthat it is hard to see how the new circumstances could represent acontinuing protection of the interests of the dead, as they become

38 See, for example, Tim Mulgan ‘The Place of the Dead in Liberal Political Philosophy’, The Journalof Political Philosophy 7 (1999): 52–70.


further removed from the destiny of the particular holding inquestion.

The second way of construing posthumous interests is as theinterests held by the living in what happens after they die.39 This morepromising construal is animated by the thought that during thecourse of a lifetime, individuals invest – both financially and emo-tionally – in a series of projects that define their personal and ethicalidentity and make posthumous arrangements that reflect their par-ticular priorities and conceptions of the good. It is motivated by thefact that people invest in long-term projects that they wish to extendbeyond their own existence and make arrangements to that effectwhile they are alive. Like any other interests held by an individual,posthumous interests can then be set back. And although the eventof death would seem to rob the world of the relevant subject of harmthat is implied by such a setback, we can – and commonly do – tracethe harm to something like the ‘moral estate’ of the person inquestion.40 In other words, we recognise the possibility that we canowe some duties to a person who is deceased, on account of whatwe owed her while alive. One example of a posthumous interestbeing set back would be defamation of character after death: theinterest that individuals have in having a certain kind of veridicalreputation after death, such that no lies are told about the beliefs sheheld or about the conduct she displayed during her life. Firmlyestablished posthumous rights exist that concern our bodies, such asthe right to choose whether or not we donate our vital internalorgans for medical usage and the right not to have them used innecrophilic acts, both of which seem grounded in the interest wehave (while living) in making arrangements to follow our deaths.A similar interest-based concern would seem to underpin the cir-cumstances under which such rights to posthumous bodily integrity

39 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 moralright (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 wemight construe posthumous interests as those held by the living in what happens after they die.

40 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 conceptof posthumous interests, see Ernest Partridge, ‘Posthumous Interests and Posthumous Respect’, Ethics91 (1981): 243–264; Barbara Baum Levenbrook, ‘Harming Someone after His Death’, Ethics 94 (1984):407–419; Dorothy Grover, ‘Posthumous Harm’, The Philosophical Quarterly 39 (1989): 334–353; StevenLuper, ‘Posthumous Harm’, American Philosophical Quarterly 41 (2004): 62–71; James Stacey Taylor,‘Harming the Dead’, Journal of Philosophical Research 33 (2008): 185–202.

ROBERT LAMB

are waived: when someone asserts that ‘I don’t care what happens tomy body after I die because I won’t be around anyway’, we arecompelled to respect the sentiment not because of any truth-valueattached to the metaphysical claim in question, but rather becausethe sentiment is expressive of the person’s values and beliefs, herconception of the good.

It is not then hard to grasp the intuitive resonance of the interestswe hold while alive in what happens after we die, nor hard toappreciate how such interests might be served by the transfer ofproperty rights in accordance with the stated wishes of an owner. Allgratuitous transfers reflect social bonds, and both gifts and bequestsafford proprietors the opportunity to benefit a person or corporatebody of their choice. We might actually regard bequests as some-times expressive of deeper commitments than inter vivos gifts. Whilegifts can be considered valuable through their expression of choiceon a particular occasion (like buying flowers for someone on aromantic whim), bequests can convey a deeper sense of personalidentity, because of their ability to reflect the sustained and consis-tent choice on the part of an individual. If a person chooses toconsistently refrain from entering into market transactions thatwould benefit the butcher, the brewer or the baker during a lifetimeand opts instead to make plans to posthumously benefit a particularperson or corporation, this decision and those that follow it overtime suggest a network of beliefs and values constitutive of a per-son’s selfhood. Such transfers can be plausibly regarded as signifyinga person’s values and goals held throughout a life. Consider, forexample, bequests made to corporations or charities and their socialmeaning. Such posthumous transfers are morally significant becausethey represent something necessarily particular about an agent’sconception of the good, something that marks out their individualitywithin a community. This is the case whether such transfers aremade to Amnesty International, Battersea Dogs Home or to the‘Campaign for Real Ale’: such bequests are significant because of thebeliefs about the good life held by the particular property holder.

Furthermore, and crucially, bequests signify an individual’s valuesand priorities expressively and in a public legal arena. Upon the deathof an individual – in most Western legal contexts – written, witnessedwills become a matter of public record when probate is entered. The


wishes of individuals stated while alive then become visible withincivil society and, unless there are important anomalies, are subse-quently granted legitimacy by a court, acting as an arm of the polity.Such a public bestowal of political legitimacy is indicative of just howseriously the sovereignty of an individual’s posthumous wishes istaken. The court acts as a zone in which the individual is recognisedas the bearer of an accumulation of interests throughout her life, givenconcrete expression through a will, something also signified by theneed for individuals to bear witness to its initial confirmation.

Any plausible justification of the power to bequeath a propertyholding – or, put differently, any explanation of its moral attrac-tiveness – would seem then to depend on an account of the value ofposthumous interests, the acknowledgement that individuals have areal stake in the realisation of their lifetime projects after they dieand the expressive function such property transfers generally have.Although such posthumous interests are clearly recognisable in oureveryday moral landscape, the concept has been subject to criticalscrutiny. The most important criticism for the purposes of this dis-cussion is that the concept itself is incoherent, for if this holds, itlooks as though the power to bequeath remains incapable of justi-fication.41 Allegations of incoherence tend mostly to hark back to theproblem of death: critics are sceptical of there being a relevant bearerof interests or, put differently, subject of harm after a proprietor dies.Cecile Fabre, for example, has recently argued that ‘it does not makesense to confer on the living rights that states of affairs obtainposthumously’. The reason for this is that ‘the living cannot havesuch rights, while alive, unless they also have them once dead’.42

41 Another criticism of the idea of posthumous interests that is important – but that I have insuf-ficient space to consider fully – is the claim that any invocation of it implies a commitment to theparadox of ‘backwards causation’, such that any action thought harmful to a person’s interests aftertheir death somehow reaches back into the past to cause the harm in question. Loren Lomasky arguespersuasively 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 rememberan event is, metaphorically, to reach back into the past, but it is not to cause any past event….[T]heevent’s being remembered is something that takes place in the present. Similarly, to bring about anoutcome for a past person is not to bring about a past outcome. To generalize: one can at time t cause itto become the case that property F characterize the no longer existent entity a, in which case it istimelessly true that: F (a) at t’ (Lomasky, Persons, Rights and the Moral Community, (New York: OxfordUniversity Press, 1987), p. 219). Lomasky’s approach avoids the difficulties apparent in Feinberg’saccount 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.

ROBERT LAMB

According to Fabre, ‘it must be the case that, at the point at which Yfulfils, or defaults on, his duty to X, the latter can be benefited, orharmed, by his action’.43 In other words, if one is to justify the dutyto observe a right with reference to the interest or benefit that rightis supposed to serve, any failure to observe the duty must imply asubject of harm, but because that subject is dead, she cannot actuallybe harmed and therefore has no interest to sustain the purportedright. On this view, it is not possible for people to be harmed afterthey die, and because of this, the attempted justification for bequestbased on posthumous interests fails.

So death is here conceived as an event, one that makes the rele-vant moral difference between a person being able to hold rights ornot. This perspective does have initial intuitive plausibility. It mightindeed appear quite difficult to get to grips with the thought that aperson can be harmed by things that happen after death, since such aclaim would be reliant on some kind of controversial metaphysics.But the intuitive difficulty really comes down to the languageinvolved: it certainly seems far less intuitively difficult to accept thatindividuals can, while alive, benefit from things that they can beassured will happen after their death, that, as suggested above, theycan have real interests in making posthumous arrangements thatreflect their values and conception of the good. The honouring ofthe right that represents the interest will obviously take place afterdeath, but the actual benefits to be gained from the decisions madeand the intentional states that motivate those decisions concern onlythe living. Where appropriate, such posthumous interests can thenbe represented by rights, and these rights can subsequently be vio-lated. Even though, technically speaking, the actions that would‘harm’ posthumous interests (the violation of the right through theignorance of a person’s will) obviously cannot take place until afterthe person dies, it does not follow from this that the benefit of suchinterests being served cannot be registered while the person is alive.A key part of receiving the benefit (or non-harm) of having one’swishes be posthumously honoured is the firm knowledge that they willbe, the certainty that one’s projects and personal investments will beprotected by society and a legal apparatus.

43 Fabre, ‘Posthumous Rights’, p. 231.


As observed earlier, there is a sense in which a written will ismore akin to a promise than to a contract, but not in any way thatmakes a moral difference to the wrong in question when such apromise is broken. It is perhaps possible to imagine a society thatmerely pretended to honour bequests but actually did not and actedagainst a person’s stated wishes as soon as they died, but such asociety would plainly be unsustainable and, in any case, quiteunattractive. The fact that the event necessary for the promise to behonoured is a person’s death does not diminish the significance ofthat promise or the obligation that it be kept. Indeed, if anything,death increases its significance: even individuals who lead what theyregard to be successful lives, do so with the inevitability of deathframing their projects and decisions, and it is an acknowledgement ofthis that provides much of the force for our posthumous rightsagainst the world to be upheld. This need not imply that we have theright that each of the projects we engaged in be completed, pro-tected or acknowledged. As Geoffrey Scarre points out, the impact ofour life projects on ‘the posthumous future’ will be ‘determined bythe logic of the projects themselves’.44 Nevertheless, the loominginevitability of death and the role it plays in motivating individuals toact in certain ways – including making arrangements for the transferof their property – underscores how important the upholding ofposthumous rights is to the living.

When thinking about the posthumous interests that we have, anyemphasis on the exact point of time at which harm is supposed toregister – the focus on the moment a person ceases to be medicallyclassifiable as living – risks entirely mistaking both the nature andsignificance of death. Such a zero-sum, biological focus posits, andmakes a fetish of, a strict separation between life and death that isprofoundly out of step with how we actually conceive our interests.It ignores the processual aspect of death within a society, the fact thata person’s social life as a recognised moral entity endures beyond theabsence of a beating heart, through the ritualistic response of indi-viduals to it, including the important winding down of an estate. Thecrossover between life and death works the other way too. Considerthe requirement that a person must be of sound mind in order toalter a written will. When, for example, a person of advanced years

44 Geoffrey Scarre, ‘On Caring about one’s Posthumous Reputation’, American Philosophical Quarterly38 (2001): 209–219.

ROBERT LAMB

develops a sufficiently serious condition of dementia, power ofattorney is conventionally granted to another on the grounds thatthe person in question is deemed not able to judge her best interests.At this time, the testator relinquishes the legal power to alter theterms of the existing will, which retains legitimacy. Yet at the sametime, as the law acknowledges, the person obviously remains abearer of some interests and can obviously still be the subject ofharm. We certainly do not think that just because a person hasdementia, they therefore relinquish all their rights. Presumablythough, if the living but demented person’s property were to bedistributed in a manner contrary to the written will, any search forthe aforementioned subject of harm would likely be unsuccessful:how can there be harm if there is no way of the person possiblyregistering it? However, the dominant legal response to this situationis not to treat the person’s life as a proprietor as having finished, butis instead to protect the legitimacy of the existing, established will,which cannot be undermined. The only plausible reason for thiswould seem to be because that particular will is thought to representthe expressed cumulative interests of a person over a lifetime in theweaving together of the various projects that give meaning to herlife. The sceptic about the existence of posthumous interests isunable 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 posthu-mous interests as those interests that individuals have in the cir-cumstances that survive them need not face this question, becausesuch an understanding is ultimately rooted in a view of death as asocial and moral process rather than only a natural event. It can thusmake sense of the power to bequeath as reflecting a person’scumulative values and conception of the good, expressed in a publicarena.

V. CONCLUSION

In the preceding analysis, I have attempted to identify and individ-uate the concept of bequest, such that it can be conceptually dis-tinguished from both inheritance and inter vivos gifts. I also showedthat there is a curious absence of successful justifications for it withinwhat we generally take to be the most influential modern, liberal


theories of property ownership, from the rights-based writing ofLocke and Nozick to the consequentialism of Pufendorf and Hume.I then argued that its moral attractiveness can be explained onlythrough the posthumous interests that it serves: how makingarrangements about the posthumous destiny of owned holdings canbe an important source of benefit to individuals and that chargesagainst the coherence of this concept seem ultimately misplaced,because they mistakenly focus on the apparent absence of a post-humous bearer of the relevant interest necessary to sustain the rel-evant right and on a wrong-headed understanding of the significanceand meaning of death.

What is the normative significance of this analysis? On the onehand, it must be admitted that merely providing an articulation ofthe interests served by bequest does not, in itself, generate anysubstantive normative conclusions. The fact that there appears to bea successful moral explanation for the power to bequeath a propertyholding does not have any direct bearing on considerations of thejust ownership or distribution of goods in a society. Nothing in theanalysis above suggests that the interests served by bequests are sosignificant that they must trump other values that feature withindiscussions of just ownership, such as need, desert or, indeed, aconcern with equality of opportunity. A commitment to the moralattractiveness of the power to bequeath and the interest it is thoughtto serve is perfectly consistent with the belief that the completelyunconstrained exercise of such a power has the potential to generatesignificant inequalities that could be regarded as unjust. However,the identification of such an interest does provide something else tobe taken into account when theorizing about intergenerational jus-tice, even if it does not have any direct bearing on the normativeconclusions that emerge from such theorizing. The identification ofsuch an interest might suggest that some kind of balance should besought when curtailing liberty in the name of equality.

The identification of a morally significant interest represented bythe power to bequeath should perhaps urge egalitarian politicalphilosophers to approach debates over the legitimacy of posthumoustransfers and their policy implications quite differently. One of theimplications of the preceding discussion is that any distinctionbetween bequests and gifts is really conceptual rather than moral:

ROBERT LAMB

they are different forms of property transfer, but they are ultimatelyboth justifiable with reference to the interests of the person makingthe transfer, who has complete discretionary power over its direc-tion. This is because once it is admitted that death helps explain thesignificance of the interest at stake in such transfers, rather thanundermining the possible existence of such an interest, bequestsemerge as posthumous gifts, with their particular character revealinga difference in type of transfer, at most a different degree rather thankind of moral quality involved. And, crucially, this rejection of anydifference in kind between the moral significance of bequests andgifts would seem to have normative implications. These implicationsare again not that such powers of transfer have trumping force overother values, such as equality of opportunity. But if we come torecognize bequests to be merely posthumous gifts, this would seemto entail that we must adopt the same attitude to the regulation of allgifts in political society. In other words, when political philosopherscome to address policy-oriented questions about the regulation ofbequests, they should be prepared to apply their prescriptionsequally to gifts.45 If this upshot is accepted, then the slightly ironicimplication of the analysis above would seem to be that unpackingwhat is morally special about the power to bequeath reveals there tobe nothing special about bequests as a form of property transfer andtherefore no special moral case for a tax on them that is not appli-cable to other gifts. There are thus no grounds for philosophers toclaim that there is anything morally or politically urgent about taxingbequests, as opposed to doing likewise to any other form of propertytransfer.

ACKNOWLEDGEMENTS

Earlier versions of this paper were presented to workshops on property andinheritance held at the University Centre Saint-Ignatius Antwerp and theHanse-Wissenschaftskolleg Institute for Advanced Study in Delmenhorst,to the St Andrews Philosophy Club and to the Exeter political theory

45 It is worth pointing out that this attitude is consistent with the late Rawlsian approach mentionedearlier (n. 3). As O’Neill points out, a necessary condition of fair equality of opportunity is for Rawls thethwarting of any intergenerational transmission of advantage, and therefore his favoured regime ofproperty-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).


seminar. I am grateful to those audiences, to the anonymous reviewers forLaw and Philosophy and, in particular, for comments and discussions, toDario Castiglione, John Cunliffe, Robin Douglass, Guido Erreygers, IainHampsher-Monk, Keith Hyams, Stuart Ingham, Seumas Lamb, ChrisNathan, Martin O’Neill, James Penner and Chris Pierson. It was originallywritten during my fellowship at the University of St Andrews’ Centre forEthics, Philosophy and Public Affairs in Spring 2010. I should like to thankthe Arts and Humanities Research Council for funding the leave necessaryto undertake the fellowship and John Haldane for his generosity (intel-lectual and otherwise) and hospitality while at CEPPA.

Department of Politics,University of Exeter, Amory Building,Exeter, EX4 4RJ, UKE-mail: [email protected]

ROBERT LAMB

Date post:	12-Dec-2016
Category:	Documents
Upload:	robert-lamb
View:	215 times
Download:	0 times

The Power to Bequeath

Documents