Imagine what a country would be like if every person could secure a vote in elections that happened after their death. If you stated your preferences in your will, you could execute a vote for the conservative, liberal, Asian, or White Separatist candidate, in every election, in perpetuity, and your vote would compete with the votes of the living. Imagine that a legal structure were erected to execute the wishes of the dead, and that the law would side with the dead even when their wishes conflicted with the needs of the living, or with the wellbeing of future generations.
We have overwhelmingly good moral reasons to reject such a society. We believe that with death comes the loss of the right to influence the political institutions of the living. Yet this kind of moral clarity disappears as soon as we move from politics to wealth. There is a huge industry dedicated to executing the wishes of human beings after their death. Through endowments, charitable trusts, dynasty trusts, and inheritance law, trillions of dollars in the US economy and many legal institutions at all levels are tied up in executing the wishes of wealthy people who died long ago. The UK does not fall far behind. As wealth inequality increases, the wealthy today are earmarking large amounts of money from the future economy to carry out their current wishes. The practice is so deeply ingrained in the culture of elite institutions, and such a ubiquitous feature of life, that only in obscure journals in law and philanthropy does anyone express concern about the justice of the practice.
In the US, the wealthy continue to own and grow wealth after their death, and the state can enforce the spending wishes of the dead in many ways. For instance, you may require, as a condition of inheritance, that your grandchildren marry within a religious faith, or that a school be named after you, forbidding a change in name even if the school would otherwise go bankrupt. Alternatively, an individual may secure current and future wealth in a tax-sheltered trust only for descendants, where the money can both grow and be shielded from creditors in perpetuity. A third legal instrument is the charitable trust, where the dead can earmark current and future wealth to some particular purpose considered ‘charitable’ where such purposes are now broad enough to include anything from the care of abandoned guinea pigs to the preservation of Huey military aircraft. Non-profit institutions such as hospitals, museums and universities can have large amounts of their spending constrained by the wishes of dead donors, such as that there be an endowed professorship for the study of parapsychology, or that a certain wing must be set aside for housing individuals of Confederate ancestry.
These practices are, on reflection, quite puzzling. Ideas about what is good to do in the world ought to change with the changing conditions of the world. Funding cancer research is good only in a world in which there is cancer. Giving distant descendants enormous amounts of wealth is good only if they are not sociopaths. And yet, we allow such power to those who are no longer around to know about the world, and who cannot be harmed or benefited any longer from such spending.
In fact, the idea that the dead could lose their rights to control the future is familiar in our moral lives, and this idea gets reflected elsewhere in the law. The state does not enforce your desire that your spouse not remarry. Even if your spouse promises this to you on your deathbed, it would not be illegal for her to break this promise. Businesses do not feel obligated to carry out the wishes of their now-dead founders, even if those founders had strong preferences about the future of the business. These kinds of posthumous desires carry little weight in our deliberations about what we should do now, and we certainly do not erect legal institutions to enforce these kinds of preferences.
However, when it comes to the wishes of the dead with respect to their personal wealth, we grant them many rights. And when you start adding up the wealth tied to the dead, the amount is staggering, likely in the trillions. The current state of wealth inequality together with the ongoing practice of honouring the wishes of the dead, could result in a future economy that will reflect the preferences of a past aristocracy, rather than the majority of those living. Respecting the wishes of the dead can lead to serious intergenerational economic injustice.
William Shakespeare’s last will and testament
The irony of our current practices is that we the living are to blame for sabotaging our own wellbeing. The dead are not around to complain if we were to change these practices; these are our institutions, and any pain we inflict on ourselves from being worse off but for the preferences of the dead cannot honestly be held against the dead. We do not need perpetual trusts to incentivise spending for charitable purposes. Many philanthropists today such as Bill Gates understand that there is greater charitable impact from spending done within one’s lifetime, which is the foundation of the Giving Pledge.
So why do we continue to give the dead such eternal rights? I believe we honour the wishes of the dead out of a misplaced sense of moral duty, as we would feel if we made a deathbed promise to a loved one. But deathbed promises are not unconditional, eternal, nor must they be satisfied at serious self-interested, financial, or moral, cost to the living. They are, instead, a lot like living promises. If I promise my child some candy but, through no fault of my own, the only available candy must be acquired at serious moral cost to some current candy-owner, it is not morally obligatory to fulfil this promise. A promise itself holds some moral weight, but not overriding moral weight.
Another reason we do this is that we have a self-interested desire that our own interests and values be preserved by future people after our own death, on pain that we disappear from the world without any legacy of influence. This existential fear we overcome by permitting institutions to honour the wishes of the dead in order to guarantee a place for our wishes in the future. But it is time to recognise the vanity and narcissism of the practice, and do what is actually best for the living, which is to have the living determine it for themselves.
This article was originally published at Aeon and has been republished under Creative Commons.
Barry Lam is associate professor of philosophy at Vassar College, New York state, and is Humanities-Writ Large fellow at Duke University in North Carolina. He hosts and produces the philosophy podcast Hi-Phi Nation, and lives in Poughkeepsie, NY. (Bio credit: Aeon)
* Note: Barry’s podcast episode on this same topic is excellent, I highly recommend you give it a listen!
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