Posthumous Harm Dorothy Grover The Philosophical Quarterly, Vol. 39, No. 156. (Jul., 1989), pp. 334-353. Stable URL: http://links.jstor.org/sici?sici=0031-8094%28198907%2939%3A156%3C334%3APH%3E2.0.CO%3B2-B The Philosophical Quarterly is currently published by The Philosophical Quarterly.
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POSTHUMOUS HARM'
Philosophers have often cited defamation of character, promise breaking, deceit, etc., as examples of events or actions that harm us, even though we do not know about them. This opens up the possibility that events we do not know about because they occur after our deaths may harm us.' In a stimulating and insightful discussion of harm, Feinberg (1984) argues that posthumous slander can harm its subject. But some deny that posthumous events can harm those who have died. Partridge (1981) bases his argument on the assumption that a person's life is 'completed' at death. O n p. 248 he says, 'After death, no events can alter a moment of a person's life. Nothing remains to be affected.' Part of my project will be to argue, in partial support of Feinberg, that posthumous harm cannot be denied on the grounds that posthumous events cannot affect the life of the deceased. This is the task of sections 1 and 2. Iwill show that there is a variety of ways in which posthumous events can affect a person's life; and that some effects can be non-trivial. For example, posthumous events can affect whether a person is successful in his or her attempt to perform a morally praiseworthy act. T h e other part of my project, sections 3 to 6, is to examine the claim that posthumous events can sometimes harm the deceased person. But first we need a theory of harm. I critically evaluate some of the available theories of harm, particularly the most promising, Feinberg's desire-based theory. As none of the theories seems to account adequately for cases of harm I would like covered, I conclude with a sketch of an alternative proposal. I agree with Feinberg that posthumous harm can occur; though it should be noted my account of posthumous harm differs slightly from Feinberg's, because of the direction I would prefer a theory of harm to take.
'
I thank Charles Chastain and Vivien Weil for stimulating discussions during early stages of the paper, and David Copp, Edwin Curley, Walter Edelberg and Irving Thalberg for helpful comments on earlier drafts. T h e referee's comments have also been helpful. We are not always ignorant of posthumous events, of course. '4 victim could learn before death that someone will make slanderous comments. Of interest in this paper are posthumous events that are not known about before death.
1.1 \Vhy would someone endorse Partridge's claim that our lives are complete at death? One reason might go this way. A posthumous event can affect a person's life only if it can in some way change the life; since a posthumous event occurs later than the life, a change can be brought about only through backwards causation; backwards causation is an incoherent concept; so posthumous events cannot affect a person's life. In response to this kind of argument Pitcher (1984) shows that causation need not be involved when a person is harmed. His position is supported by the following example: Suppose that Mr. Black's son Jack is killed in an airplane crash many miles away. Given that his son's welfare is one of Black's strongest interests, the son's death harms Black (is a great misfortune for him). There should be no temptation to think that this harming of Black requires instantaneous causation at a distance. (Pitcher, 1984, p. 186) Pitcher is right about this. But if backwards causation is not involved, how can a posthumous event affect a person's life? It might be argued that if posthumous events do not cause their effects, then the effects cannot be 'real' effects. Just as my thinking about Socrates today does not have a 'real' effect on Socrates, so other posthumous events have no 'real' effects on the deceased.
1.2 X modified attack on the claim that posthumous events can so affect a deceased person's life as to cause harm, might be based on the assumption that posthumous events cannot affect a person's life in the way that events during a person's lifetime can. Aristotle says, for example: it makes a difference whether the various sufferings befall the living or the dead . . . if anything whether good or evil penetrates them [the dead], it must be something weak and negligible, either in itself or for them, or if not, at least it must be in such degree and kind as not to make happy those who are not happy.; T h e argument advances from this point to the claim that the effects of posthumous events are so slight they cause no harm.
' Aristotle's claims (iVicimmachean Ethics, llOla31-1101b4) sqem to be based on consideration only of posthumous events that affect the deceased person's life through effects on the lives of friends and family of the deceased.
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In Section 2 I show how posthumous events can, in a variety of ways, affect a deceased person's life. 2. EFFECTS OF POSTHCAIOUS EVENTS
2.1 Consider posthumous slander. Persuasive slander during our lifetimes affects what people think of us, and so it can affect how others behave toward us. For example, slander can affect what others say to us, it can affect whether we succeed or fail in business, our family relations, our selfesteem, whether we are sent to prison, etc. None of this seems to have much relevance for the case of posthumous slander, however, for the subject is then dead, and dead people do not interact with family members, or get sent to prison, etc. Aristotle appears to be at least partly right posthumous slander cannot have the same variety of effects that slander propagated during a person's lifetime can have. But this does not tell us what impact posthumous events can have. We need to take a closer look at the issue. Since there are many ways our attempts to accomplish certain objectives can be frustrated, there are many ways posthumous events can affect the intentional actions of the deceased. In some cases we can accomplish what we set out to accomplish only if no person (or event) obstructs the relevant causal consequences of things we have set in motion. In other cases, in initiating the action, we must have the co-operation and help of others. Sometimes we have the co-operation of other required helpers, only if there is a recognized sharing of interests and values. Sometimes we cannot do what we want to do unless the person, for whom the action is initiated, is in a certain cognitive state. Posthzrmous ments can affect what actions can be attributed to a deceased person, in each of these ways.
2.2 Let us suppose Mary wants to kill Joe. She buys a gun, loads it, and rushes home; seeing Joe in the living room with his back to her, she aims; she shoots him. But he does not die instantly. H e is also carrying a gun and shoots Mary. Mary dies. Joe calls an ambulance. T h e ambulance arrives promptly with a well-trained crew. Consider tsvo outcomes. In case (i) Joe dies in the ambulance despite every effort made by the crew; in case (ii) Joe lives because technical advances - not yet available to those working to save his life in the first case - are employed to minimize damage to Joe's heart. In the two cases cited, events posthumous to Mary's death make the final determination as to whether Joe dies, and so as to whether Mary killed Joe or merely tried to kill Joe. I have assumed that the ascription of an action to an agent may be determined by a number of factors. In the case of an intentional killing
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there must have been some bodily movement of an appropriate kind of the agent (for example, finger pressure on the trigger), an appropriate intention, knowledge concerning the ways and means of accomplishing the task, and the ability to kill the person (i.e., the death of the victim did not happen merely coincidentally). I have also assumed that certain causal consequences of the relevant bodily movement occur (for example, the piercing of the body by the bullet and the resulting death of the victim).' Given these assumptions, events relevant to our determination of what action is or was performed can occur aBer that person's death.' So while the posthumous events cited did not affect whether or not Mary pressed the trigger, they did obstruct the causal consequences of those bodily movements. T h e posthumous events thereby affected our determination of whether or not the bodily movements were components of a killing. T h e effects cited are real effects; for intentional killings are not trivial aspects of a person's life. Note, also, that such effects do not involve 'changes' in our lives. Some aspects of our lives (for example, what accomplishments can be attributed to us) remain open at death.
2.3 hlany actions involve not just an agent (or agents) but also a 'recipient'; for actions are often done to or for someone. Successful performance of such actions can require that the recipient recognize the intentions of the agent, and adopt a certain attitude towards that intention. Thus if Joe decides that hlary's killing of him is a good idea, and allows himself to be shot, or in the ambulance refuses treatment by the paramedics, we might decide not to ascribe the killing of Joe solely to Mary. In other cases successful performance of an action can require that the recipient have certain beliefs as to the agent's motives, sincerity, or reliability. Suppose John seeks to comfort Sally by holding her hand, perhaps sending flowers. If Sally believes that John is insincere or manipulative, she will not be comforted. Rather than bringing comfort, John's actions may cause distress. Attempts to provide help or support can go astray in ways ' 1 do not intend to endorse any particular theory of action. I assume that in identifying actions, or, as Castaiiada (1980) suggests, in adopting conventions concerning what we will identify as actions, there is no simple formula, and the interplay of many factors will be taken into account. For example, we may decide that a (careless) hunter killed another hunter when he fired into the bush, even though he did not have the intention of killing any person. Though he might have intentionally taken the risk (as evaluated by the 'reasonable man test') that he might kill someone. .4nd even though, had he had such an intention and tried, he would not have hit the other hunter. ' I have not addressed the question of rnhefz actions such as those I have described occur, because I do not think I need to go into those details. (For a stimulating discussion of these issues, see Castaiiada, 1980.) I believe there is not the same kind of disagreement as to whether a killing of Joe by hlary occurred. ,4nd that is what I want to assume. Even if it were decided that the killing occurred at the time AIaqr pulled the trigger (as Hornsby (1980) would argue), it can hardly be denied that events after hlary's death can determine whether the pulling of the trigger in a particular case was a killing or not.
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similar to those ways in which attempts to provide comfort go astray. Successful communication also requires that the audience have certain beliefs concerning the communicator. If a communicator intends to inform her audience of certain facts, she will be successful only if the audience believes that she is well-informed: If listeners believe that a speaker intends to mislead, they may again not be informed. What is said may be remembered but dismissed as containing misinformation. Similarly, we do not advise another if the person to be advised believes there are good reasons for rejecting the opinion articulated. Slander, including posthumous slander, can clearly produce the 'wrong' kinds of beliefs in intended recipients. So posthumous slander can undermine a person's attempts to communicate, or provide comfort or advice. A letter posted by the deceased can be intercepted, for example; or it can be left unopened. Feinberg (1977) portrays a case of posthumous slander where 'proof is given that the deceased person is a philanderer, adulterer, plagiarist, etc. Let us suppose that the victim is Michael. And let us suppose, as Feinberg does, that family, friends, and colleagues become convinced by the 'evidence' produced. By hypothesis, Michael was a loving faithful husband and father; and all of his writings were his own. Knowing that this death was imminent, let us suppose that Michael made every effort to anticipate, and address where appropriate, present and future needs of his family and colleagues. (For example, he opens up discussion on some of the major issues that will arise for the family; he provides psychological support; he directs his family and friends to helpful advisers; he attends to financial matters.) Michael does all that he can to ensure that his fg,mily and friends will live good lives. However, when Michael's name is posthumously slandered in the devastating way described, his friends and family start re-interpreting his behaviour. Those who had loved and been loved (and helped) by Michael, might now become resentful, angry, and depressed about the past. So many of the things that Michael had attempted to bring about are not realized. T h e long-term effects of the posthumous slander are that Michael's actions do not provide comfort, help, or inspiration; so they are not comforting, helpful, or i n ~ p i r i n g . ~ I have not distinguished between a case where the person telling the false stories knows that they are false, and a case where the person telling the stories is unknowingly spreading false stories. Either would seem to have the same kinds of effects. T h e difference would come, presumably, in what kind of blame would be bestowed on the story teller, and how one might-tn to stop the stories. I also do not consider the effects of undeserved praise. An undesenred enhanced reputation can also affect what a person accomplishes, positively and negatively. 'I
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Posthumous promise breaking and betrayal can have similar non-trivial effects. For example, a friend who promises to see that a deceased person's manuscript is published may fail to do that. These examples suffice to show - contrary to the arguments of section 1 - that, while posthumous events cannot have the effects an event during a person's lifetime can have, nevertheless, posthumous events can determine the actions of the deceased in non-trivial ways. I turn now to the issues of what constitutes harm, and whether posthumous events can harm the deceased. 3. HARM - SOME THEORIES
Since posthumous events do not have the variety of effects on our lives that events during our lives can have, it is not obvious posthumous events can harm us. Nor is it obvious that posthumous events cannot harm us, for we have seen the effects of posthumous events can be non-trivial. T o determine whether these non-trivial effects ever amount to harm, it will be useful to have a theory of harm at our disposal. Let us consider some proposals.
3.1 One would deny the possibility of posthumous harm, if one assumed that people are harmed only if they suffer experientially. This will not persuade many that posthumous harm is impossible. For according to this theory, a person who is carelessly given a drug that turns him into a 'vegetable' would not suffer harm, if the victim was at no time aware of what was happening. 3.2 Feinberg (1984) argues we can be harmed if our welfare interests are impaired. These are interests which he says (p. 37) are 'often indispensible
. . . to the advancement of more ulterior interests', and 'the necessary means to his more ulterior goals'. Among those things listed by Feinberg as welfare interests are, 'the interests in one's own physical health and vigor, . . . minimal intellectual acuity, . . . the capacity to engage normally in social intercourses and to enjoy and maintain friendships, . . . a certain amount of freedom from interference and coercion'. People are also hamzcd, says Feinberg, when their ulterior interests are impaired. It is here that the possibility of posthumous harm most clearly arises. O f ulterior interests, Feinberg says, 'In respect to these [ulterior] interests, wants seem to play an essential role', and 'in respect to my more ulterior interests, at least, I seem to have a stake in them because I desire their fulfillment'.' Wants and desires (and goals) are said by Feinberg to,provide the basis of ulterior ' T h e quotations are from Feinberg (1984), p. 42. Also, on p. 86 Feinberg says 'harm to an interest is better defined in terms of the objective blocking of goals and thwarting of desires than in subiecti~eterms'.
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interests. Ulterior interests are said to be impaired or thwarted when the desires or objectives which provide their basis are thwarted. Feinberg (1984, pp. 67-70) classifies his concept of interest as a wholly 'want-regarding' concept. This 'want-regarding' classification is taken from Barry's (1965, pp. 38-41) 'want-regarding' and 'ideal-regarding' distinction, according to which, a concept is want-regarding provided that in evaluating a state of affairs 'all the information we need is the amount and/or distribution among persons of want satisfaction'. Presumably one reason Feinberg feels justified in classi@ing his theory this way is that ulterior interests are based on the wants, desires, or goals that a person actually has; and welfare interests are determined by ulterior interests. As Barry requires more than that of want-regarding theories, I classi* Feinberg's theory (more loosely) as only 'desire-based'. A concept or theory is desire-based if the desires that a person has play (only) an essential role in the concept or theory. Other factors may also be relevant - that is, desire-based concepts or theories can allow that some desires are more significant than others. My reason for classifying Feinberg's theory as only desire-based is that Feinberg weights desires, and in doing so, he takes many factors into account. For example, he says that desires which base ultimate interests are typically realistic, and consciously directed at long-range goals and objectives, etc. Such remarks suggest the inclusion of a cognitive element, and other factors, in the selection of those desires relevant to an evaluation of harm. Note also that this classification does not imply that welfare interests are tied to specific desires or goals. (See, for example, (1984), p. 42.) T h e tie with wants or desires usually comes through ulterior interests. Let us return to the issue of posthumous harm. Feinberg's discussion of posthumous harm comes in Chapter 2, which is devoted to providing accounts of 'puzzling cases'. H e argues that posthumous harm can occur because posthumous events can have the effect of thwarting certain ulterior interests that the deceased person had. This last claim is supported by examples. A posthumous event Feinberg considers, is that of posthumous slander (1984, pp. 86 and 87), and the relevant desire is the desire to be held in high regard by one's fellows. H e says the desire to be held in the continuing high esteem of one's fellows is a desire which is sought as an end in itself, and as such, it can be the basis of an ultimate interests.' Since the desire to be held in the high esteem of one's fellows can be thwarted by posthumous slander, posthumous slander results in posthumous harm. Wesires which provide the bases of ultimate interests can be, in addition, instrumental: satisfaction of these desires can lead to the satisfaction of other desires which are desired also as ends in themselves.
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Does Feinberg's suggestion, regarding the possible effects of posthumous slander, justifjr the claim that posthumous events can harm? We need to consider the example in greater detail to appreciate some of the issues that arise. 3.2.1 For the moment I will ignore the posthumous aspect: is a person who has an investment in a desire for the high esteem of his fellows harmed if the desire is thwarted? Feinberg does not, of course, simply assume that a person is harmed if one of his or her desires is thwarted. Such a theory is unacceptable for a number of reasons. For example, it cannot plausibly be argued that I am harmed when my desire that others not live in poverty remains thwarted. Among other things, Feinberg requires that the thwarted desire which gives rise to harm be a desire in which the person has an 'investment'. Let us see how we might elaborate the intuitive idea of 'investment'. Feinberg speaks of investing one's 'wellbeing' and 'hope and desire' in the fulfilmen: of a desire; but neither idea is worked out, and anyway, Feinberg appreciates that circularity threatens. We might then suppose that harm occurs only if the subject has invested substantial time and effort trying to realize the desire that is thwarted. But this will not do either. T h e thwarting of a desire for immediate relief from pain could cause harm, yet the person might not have been able to invest time and effort in trying to have the desire satisfied. The following example raises further questions. Suppose we have Tim with an investment, perhaps even his wellbeing is invested, in a desire for the continuing high esteem of his fellows. Tim is a self-centred character who cares a lot about what others think of him. So Tim makes every effort to present himself to others in ways he believes they will approve. Suppose Tim applies for a job. As a result, Tim's character and personality become known to those he had worked hard at impressing through deception. For Tim's references tell the truth about him. As a result, Tim's desire for the continuing high regard of his fellows is thwarted by the truth-telling. Is Tim harmed? Some will argue that he is, and others (for example, Plato, Gorgias, 472e, 474b) that he is not.' If we want to hold on to the claim that Tim is harmed, would we be justified19n attributing the hamzing to the truth-telling, an analogue of slander? If Tim is not harmed, then we have to say why the thwarting of his desire for the high esteem of his fellows does not constitute harm. Whichever way this comes out, the example shows that it would be helpful to know a little more concerning
' While there may be disagreement as to whether Tim is harmed in the circumstance there will rob ably be agreement that, other things equal, Tim is not wronged, providing what is said of Tim is not malicious or overstated. lU This is not to deny, of course, that there are cases where truth-telling, may be judged to harm a person. Cases where the truth-telling was uncalled for, invaded a person's privacy, etc.
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the assumptions that are made when it is claimed that (posthumous) slander thwarts the desire people have for the continued high esteem of their fellows, and that this harms the individual concerned; for it is not obvious that the thwarting of a desire to be held in high esteem, in which one has an investment, is sufficient to establish a harm." Feinberg refers to the interest people have in the 'continuing high esteem of my [their] fellows'. Can we make explicit the desire which provides the basis of this interest? Is it that a person who has such a desire, desires the high esteem of everyone? That seems unlikely, for anyone who has such a desire is destined to have a desire which is grievously thwarted, for there is the difficulty that there is no one of whom everyone has some opinion - favourable or unfavourable. All of us would then be harmed by the thwarting of such a desire. We might suppose that 'my fellows' refers to a restricted group. Perhaps those people whose opinion one respects, or would respect? There are problems with these suggestions also. T h e task of identifying 'my fellows' remains." 3.2.2 Another difficulty facing a desire-based account of posthumous harm is that at the time the desire is thwarted, none of the desires is current, for the person who had the desires is dead. T h e thwarting of a desire which is not current, typically does not, on its own, harm the person who had the desire. During a person's lifetime desires come and go: at 18 Rewi might have wanted to marry Tui at 25, and at 25 he might have wanted to marry Jane." T h e thwarting of the earlier desire may not constitute a harm. Feinberg, in appreciation of the point that the desires are not current at the time of a posthumous event, assumes that a person may be harmed not only when desires of a certain kind are thwarted, but when they mill be thwarted." H e suggests that people are harmed if they are pursuing 'doomed' desires and that the harm begins at the time at which they invest in the desire that is doomed. But we need more details. At 18 Rewi might have invested in his desire to marry Tui at 25, and for a while have pursued a doomed desire. H e might not have been harmed in so doing. Many people make huge investments in trying to satisfy desires, even though they know the I' Feinberg's remarks (1984, p. 66) lead me to think he would consider Tim harmed in these circumstances. I' It is possible that those who seek the high esteem of others as an end in itself seek the high esteem of different people at different times, and they may seek the high esteem of some with respect to one aspect of their lives, and others with regard to other aspects. l3 Parfit (1984) points to the difficulties raised by the fact that our desires change over time. " Another possibility: suppose people have the following higher-order desire, a desire that the (other) desires that they are pursuing be desires that will be satisfied. So the higher-order desire is thwarted now if the other desires mill be thwarted in the future. But can we assume that everyone has such a desire?
probability of having them satisfied is fairly low: a prisoner planning escape, athletes or musicians seeking world acclaim, civil rights leaders working towards the elimination of racism. Sometimes harm may be suffered, but not always. The person concerned may deny she or he has suffered harm, adding 'It's the trying that counts.' When is the future thwarting of a desire in which a person has invested, a sufficient condition for him or her to suffer harm? Do these conditions exist in the case of posthumous thwarting? 3.2.3 Another point that should be noted is that the thwarting of a desire for the continuing high esteem of one's fellows is not a necessary condition of a person's suffering harm from slander; so perhaps it is not a necessary condition for posthumous slander to harm. It is not clear that everyone seeks the continuing high esteem of others as an end in itseg'j And even in those cases where the high esteem of some people is sought, a slandered person might be harmed by slander that is believed by people outside that group. Thus Martin Luther King was probably harmed by slanderous material prepared by J. Edgar Hoover and distributed to influential politicians,16 yet he might not have sought as an end in itself the high esteem of those politicians. Feinberg does not address this last issue of whether the thwarting of a desire for high esteem accounts for all harm that slander, including posthumous slander, may engender. He allows that harm might be incurred when other desires are thwarted: desires with respect to which the high-esteem desire is instrumental. I am suggesting more than this. Slander can harm, even though no high-esteem desire is thwarted. If posthumous slander can harm the deceased, then possibly an explanation of this harm would have to show that desires other than a high-esteem desire are thwarted, if we adopt a desire-based theory of harm. 3.2.4 The above questions are not intended as criticism of Feinberg's theory, for they are concerned only with detail; any reasonably plausible theory will face the task of working through similar details. A more serious issue is that Feinberg's account appears to make the impairment of ulterior interests contingent on the desires (or wants) a person has. This would mean that harm to ulterior interests is contingent on a person having certain kinds of desires. Since welfare interests are determined by one's ulterior interests, harm to welfare interests would also be contingent on the desires a person has. I see this as a problem because I believe some people are harmed when they have not had the opportunities, that others have had, to acquire desires and'interests that most of us value ' j I do not know whether Feinberg thinks that everyone has such a desire. I leave Feinberg's position vague on this point. l6 See, for example, Oates 1982.
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having; and that some people are harmed when society 'encourages' in them certain kinds of attitudes, for example, low self-esteem. Consider those who have not had access to the encouragement, education, cultural activities, etc., which provide tht circumstances in which we have the opportunity - should we wish - to acquire or choose between many of our more 'sophisticated' desires. Let us suppose that the opportunities could have been made available; there is enough wealth in the society, etc. Or consider the situation of some depressed groups (the situation of some women and blacks) who have come to believe, because of the attitudes of others in their society, that their own opinion is worthless; as a result they have no desire to vote, nor a desire that their opinions be heard in any other way. If we agree that such persons may have been harmed by the society they live in, or the family they were brought up by, it is not because they have desires that base ulterior interests that are thwarted (which may be true also), or because interests essential to the satisfaction of ulterior interests (Feinberg's welfare interests) are thwarted, but because they have not had the opportunity to acquire and pursue (or reject) desires and interests of a certain sort, namely, desires that can provide the basis of certain kinds of valuable or worthwhile (ulterior) interests. I believe such cases are not addressed by Feinberg's (1984) theory of harm, in part because Feinberg defines welfare interests as those interests which are necessary 'if we are to have any chance at all of achieving our higher good or well-being, as determined by our ulterior goals' (p. 57; my emphasis). And in part Feinberg's theory does not address such cases because he presents, what he calls, a relativistic view of harm. On p. 34 he says, 'One person harms another in the present sense by invading, and thereby thwarting or setting back, his interest. The test . . . is whether that interest is in a worse condition than it would otherwise have been in had the invasion not occurred at all.' In the 'deprivation' cases considered above, no interest of the people concerned need be in a 'worse condition' after they are neglected by the rest of society. It might be proposed that such cases can be included in a desire-based theory of harm on the grounds that it is reasonable to suppose that everyone desires excellence: the acquisition of (only) 'sophisticated or good' desires would then be something everyone desires. I doubt this supposition is true. Anyway, such a theory would probably classify more cases than we want as causing harm.17 An approach more likely to succeed woold require a broadening of Feinberg's concept of welfare interest and modification of Feinberg's l7
See Feinberg (1984), p. 56, on a similar point.
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relativistic view. Such moves are possible only if Feinberg gives up the idea of providing a theory that approximates a want-regarding theory. Feinberg has already departed a little from a want-regarding theory, since he discriminates among the desires that a person has. (This was why I have called his theory only desire-based.) Modifications along the lines just suggested would take the theory one further step away from a wantregarding theory. For the theory would have to provide criteria for selecting from among those desiredwants a person might have had, as well as from among those the person has. If Feinberg wants a theory approximating a want-regarding theory, this last modification would seem to be ruled out. I believe that there is another situation that Feinberg's desire-based theory of harm fails to evaluate correctly. According to Feinberg's theory, a person is harmed if an ulterior interest, which a person has an investment in, is thwarted. Consider now a person who has such an interest thwarted. Suppose also that this is a situation where the 'thwarting' event happens in fact to be an overall enriching event, though not satisfyindfulfilling any previous desires or wants of the person concerned. Perhaps the person, in hindsight, even recognizes that the event is enriching. Then it would seem that the person with the thwarted ulterior interest is not harmed - though Feinberg's theory says he or she is harmed.
3.3 Kleinig (1978) suggests another theory of harm. After briefly questioning whether a theory of harm (via interests) can be based on desires, Kleinig proceeds to offer an analysis in terms of welfare-interests. In this very useful discussion Kleinig distinguishes four 'traditions' in the historical development of harm. It is the concept of the second tradition that is most relevant to the question of posthumous harm, for, according to this tradition, harm does not have to be experienced, nor need it constitute a wrong, nor need there be a violation of a legally protected interest. According to Kleinig, harm consists in 'impairment of a being's welfare interests' (1978, p. 33). A welfare-based theory of harm can perhaps accommodate the 'deprived upbringing' cases listed above. The issue is whether, on Kleinig's theory, people who have not had the opportunity to acquire (or reject) certain kinds of attitudes, desires, interests, and self-knowledge are harmed. We can utilize a suggestion Kleinig makes, when he connects the third tradition (harm as a wrong) with the second tradition. The suggestion is that a person's welfare-rights are impaired if'his or her primary rights are violated. Then we need only require that conditions conducive to the acquisition (or rejection) of the relevant attitudes, or desires, etc., be primary rights of persons.
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My questions concerning Kleinig's theory relate to other cases. For while I am inclined to think that people are most seriously harmed when their welfare-interests are impaired, people can, I think, be harmed even though their welfare-interests have not been impaired. Consider June who works with a certain computerized machine, and this is her chosen career. June suffers a minor but permanent injury to her fingers and as a result she can no longer work at this particular machine; otherwise her life is unaffected. June has several options as to alternative careers; the best among these are options she (correctly) regards as less attractive. I believe that June has suffered harm, yet her welfare-interests may not have been affected. Perhaps Kleinig makes welfare-interests sufficiently encompassing to include such cases. I am not sure. Kleinig begins with the claim that human welfare-interests are foundational in the sense that they are 'indispensible to the pursuit and fulfillment of characteristically human interests'. An interpretation of this that would encompass the harm June suffers, would appear to make welfare-interests too widely encompassing. An example will serve to illustrate the problem. Illegal insider trading seems to be commonly practiced on Wall Street. So it qualifies as a 'characteristically human interest'. Consider, now, those people who have (moral or whatever) attitudes that make it impossible for them to engage in such criminal pursuits. If welfare-interests are those interests that are indispensible to the pursuit and fulfilment of characteristically human interests; then the welfare-interests, of those who are inhibited from engaging in insider trading, must have been impaired. If we were to accept this version of Kleinig's proposed account of harm, then we would have to say that such people (people who could not 'bring themselves' to engage in certain kinds of criminal activity) have been harmed. I do not find this account of harm acceptable. Indeed, in a footnote (1978, p. 31), Kleinig modifies this characterization of welfare-interests. He says, 'Welfare interests are those necessary to the functioning of people as purposing, self-reflective and responsible agents (normally) in a social particular context.' But if we adopt this minimal account of welfare interests, and the consequential minimal account of harm, then June is not harmed; for injury-free fingers are not necessary to June's functioning as a purposing, etc., person. The minimal account of harm is also unacceptable. In the next section I suggest another approach. I may be mistaken in thinking this is another approach, as I do not understand Kleinig's theory in its entirety. Perhaps my proposal should be viewed as only suggesting modifications of Kleinig's theory.
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- A SUGGESTION
4.1 1 am inclined to think that harm can occur when circumstances either seriously impair the present quality of a person's life, or undermine the possibility that a given person could be in a position to choose (or reject) a life of good quality. This is the idea I wish to explore. Crudely put, my criticism of Feinberg is that well-being is not simply a matter of the fulfilment of welfare-interests and the fulfilment of those desires a person happens to have that provide the basis of his or her ulterior interests; and my criticism of Kleinig is that well-being is not just purposing, selfreflective, responsive behaviour. My suggestions have their origin in a discussion of Cooper (1977) on According to this account, in a friendship and the good in Arist~tle.'~ good-quality life, a person has knowledge that she or he is active with things that are interesting and worthwhile; and she or he finds them interesting and worthwhile. So the idea is, roughly, A is harmed by an event or circumstance X, when the occurrence of X has the effect of A having a significantly lower quality of life than A might reasonably (given the resources of the society and A's resources) otherwise have had - where a life of good quality is one where the person has knowledge that she or he is active with things that are interesting and worthwhile; and she or he finds them interesting and worthwhile. In the remainder of this section I provide a few explanatory comments.
4.2 Without knowing how all of this might be done in practice, I shall assume that in less than ideal lives (the lives all of us lead) there are degrees of knowledge, different levels of autonomy, and that activities can be graded according to their level of interest and value. So I assume for a given life, good or bad, that its quality can be better or worse than the quality of some other lives. But changes in quality do not always mean that there is either harm or benefit. For changes in a person's life might yield incomparable changes in quality. It is sometimes impossible, for example, to compare one's overall quality of life when living in one country or city with living in another. (We might be able to make comparisons in certain respects, however.) So 1 do not assume a linear ordering of lives according to quality, only a partial ordering; and I assume there may be more than one kind of good life, and more than one kind of bad life.
4.3 I need to include both 'worthwhile' and, 'interesting'; for seeking relief ' 3 e e the .\~roinnclinrn Ethics, Books 9 and 10. Instead of referring to 'happy lives' I will refer to uell-being or good qualit! of life; so I am departing from Aristotle's account. 'Interesting and uorthwhile' is terminolog) I have adopted from Cooper (1977).
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from pain, while worthwhile, is not interesting. I am using 'interesting' in a way which allows an activity to be interesting though not worthwhile. One might alsofind an activity interesting though not worthwhile. I recently read of a Ph.D. physics student who finds laser research interesting. In his view laser research would be worthwhile if it were to lead primarily to advances in medicine, and not worthwhile if it were to lead primarily to advances in Star Wars research.I9 I make a number of assumptions. I assume that what is 'interesting' will be a complex function of (among other things) not only the desires people have, but also desires they might have had in possibly better circumstances. So there is more to 'interesting' and 'worthwhile' than can be captured by 'what one happens to desire'. For some things are interesting or worthwhile though we have never desired them; and we sometimes find things interesting or worthwhile that we have never desired. We can also desire something that we then find boring." Given the emphasis on activity, I should point out that I include contemplation as an activity. I also assume that the question of autonomy will be relevant to whether a person is engaged with worthwhile activities. This leads to further assumptions, for self-determination assumes some control, and control requires self-knowledge."
4.4 Note that in a good quality of life a person should find what he or she is doing interesting and worthwhile. Some examples will demonstrate the importance of this cognitive aspect. People can suffer harm through severe memory loss. For certain kinds of activities that are considered interesting and worthwhile then become impossible; for example, managing a business, decision-making, and reflection. There are other examples. One explanation of why indoctrination can harm is that those who have been indoctrinated fail to have the knowledge required for autonomous behaviour. Pitcher's example cited earlier can be used to further establish connections between harm and self-knowledge. In Pitcher's story Black's son is killed in an airplane crash miles away. 1 will introduce some variations. Let us suppose that in all cases Black learns of the plane crash, and in Pitcher's story, case (i), Black learns that his son died in the crash. '$ Although I have not stated this explicitly, I do not assume any minimal level of 'interest' or 'value'. So, for example, I allow that a person who is active with a boring exercise may be harmed by being placed in a more distressing situation. So I agree with Benn (1967) who says that 'what gives ralue to the satisfaction of a desire is the quality of the life of u-hich it forms a part and in which it has a function' (p. 273) - one should not simply assume that there is value in having a desire satisfied. 2 1 I am not suggesting that we value maximum control in all aspects of our lives. Certain activities are interesting because speculative; and windsurfing is made more interesting by sudden unpredictable changes in the d n d , etc.
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In case (ii) Black does not know whether Jack survived the crash. We will suppose that Jack does survive and lives very well, but that he is never again in contact with his father. Case (iii) is the same as case (ii) except that Jack returns in disguise, as Jim, and spends a lot of time with his father. Black never learns that Jim is Jack. My intuitions regarding harm are that, other things equal, Black is harmed in all three cases. Yet in the second and third cases, since Jack's welfare is assumed intact, it cannot be on these grounds that Black is harmed. It might be argued that in case (ii) Black's interest in his son's welfare, required not only that his son live but that they do things together. It is this desire that is thwarted. But it is not thwarted in case (iii). Why is Black harmed in case (iii)? A problem for Black in case (iii) is that he does not know that what he is doing (for example, speaking with Jim) satisfies his desire (to speak with Jack). The cognitive element is significant in case (ii) also. The harm suffered by Black may not be as great if he knew that his son was alive and living a relatively comfortable life." These examples show that whether people are harmed or not is determined not only by what they are doing (or even by what desires are satisfied) but also by what knowledge they have of what they are doing, and knowledge of its interest and value. For similar reasons we can also sometimes be harmed when we do not have knowledge of certain circumstances in which we make decisions - for example, when we do not have knowledge of the risks in~olved.'~
4.5 This proposal, as an approach to harm, seems to have the potential to explain the earlier troublesome cases. The underprivileged person, for example, who lacks opportunities to acquire and pursQe desires and interests that are available to others in the society, is harmed because what he or she is doing is not - relative to what might realistically have been available - more interesting and worthwhile." 4.6 Some have objected that I place too much emphasis on knowledge. 2' H e might, of course, suffer additional harm if he learned that his son deliberately avoided reassuring his father. This could happen if the father had an interest in sharing experiences u-ith his son. "There is much to sort out here. For lack of self-knowledge does not always suffice for harm. Sometimes u-e are better off without self-knou-ledge. I do not want to be bothered every few minutes, for example, with information regarding the length of my toe nails. Consider, also, a scientist whose theory will take a couple of decades to confirm. N i l e u-e might regard it as unfortunate that in the natural course of events a sciehtist does not learn of the success of her theory for a couple of decades, it is doubtful if we would consider her harmed. However, if her theory is confirmed, and for a decade she is deliberately, or even inadvertently, kept in ignorance of this fact, we might then consider her harmed. 24 O r has not had the opportunity to autonomously choose what he or she is doing.
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For, it might be argued, it has not been shown in the case considered above, that King could be harmed by posthumous slander in the following case. Suppose that King did not have enough evidence to claim with justified confidence lasting reform on racial matters; then King's knowledge of what he was accomplishing would not be significantly affected by the possible negative effects of posthumous slander. The theory places too much emphasis on what one knows. The objector assumes that according to the theory the quality of a person's life is impaired only f t h e subject's cognitive state is affected. But this is not an assumption that has to be made. In making comparisons between less than ideal lives, comparisons can be made on the basis, not only of the cognitive state of the individuals concerned, but also on the interest and value of what they are doing. Clearly, in evaluating less than ideal lives (the lives we all live), there are a variety of ways in which the calculation might go, according as we weigh self-knowledge, accomplishments, the interest and value of what is done, and the subject's attitudes towards what she or he accomplishes, etc. Some might think that, to put it crudely, it would be more significant for Martin Luther King's quality of life that he brought about five lasting reforms (for example) and did not know that he had, than that he was successful with three reforms and had knowledge of this success. I cannot see why, in developing this account of quality of life, and harm, both sets of attitudes cannot be explored. Under the present hypothesis, according to which King's knowledge is not affected, his quality of life may be impaired - not because posthumous slander determines what he knew or did not know - but because posthumous slander has the effect (supposing this had been the case) of undermining his achievements.
4.7 This is an outline of my proposal. There are many reasons why there is much to be explored in this proposal. An explanation needs to be given, for example, of why we tolerate some fluctuations in the quality of our lives in the normal course of events, without suffering harm." 5 . POSTHUMOUS EVENTS AND QUALITY OF LIFE
Suppose an adequate theory of harm could be developed along the lines suggested. Then consider how posthumous events might so adversely affect the quality of life of a deceased person, that the deceased person suffers harm posthumously. In section 2 we saw that posthumous events can adversely affect what " T h e surge in liabili~suits leads some to wonder whether this attitude is any longer prevalent.
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people accomplish. These effects in turn can affect whether people are the kinds of people they take pains to be. Consider Michael. H e had good reason to believe that he was the kind of person who provided support, advice, and possible inspiration, even in the trying circumstances of an imminent death. On the assumption that Michael wanted to be a certain kind of person, aiid not someone who merely tried to be that kind of person, he failed - he did not provide comfort, etc. T h e quality of Michael's life was adversely affected. As for harm, this case is controversial. I think the effects on Michael's quality of life can be sufficiently significant that he is harmed. Others disagree. T h e next case is less controversial (among academics). Posthumous events can also undermine the quality of a person's life by undermining the quality of the decisions made. In rational decisionmaking, people make assumptions concerning the future. For example, 'People will continue living after I die', 'My friend will see that my book is published.' When our reasonable assumptions are undermined by others, we make decisions in less than ideal circumstances.'" Consider the case of Basil, who is in the process of putting the finishing touches on a book manuscript. Let us suppose Basil's death is imminent and he faces just two options. Basil has the option of forgoing final revisions of the manuscript and himself negotiating with a publisher, or he could accept his friend's offer to get the book published posthumously. If he pursues the first option, the book gets published. H e chooses the second option, but the friend does not make the promise good, and the book is never published. Basil did not have the knowledge necessary for a good decision; as a result he did not accomplish what he would have otherwise accomplished. So Basil is harmed posthumously. A reason posthumous events can have such effects is that not all components of the so-called posthumous events occur posthumously. Promises can be broken posthumously, only if promises were made when the parties concerned were alive. Similarly, posthumous betrayal and slander can occur only if assumptions of trust are the norm among the living. Where trust is the norm, posthumous breaking of a promise, betrayal, or posthumous slander can play havoc with the cognitive status of the deceased person's beliefs, and with the decisions and activities of the deceased. Since posthumous events can have a non-trivial impact on the quality of
'' Furley (1986) draws attention to the fact that it is important that certain assumptions we make, when making decisions, be true. This leads to his account of the fear of death. 'It seems to me that the essential element in a rational fear of death is the fear that our desires and intentions are unreal, in the sense that they have no possibility of fulfillment' (1986, p. 90).
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life of the deceased, posthumous harm is a possibility, if my proposed theory is viable. 6. POSTHUMOUS HARM
6.1 Some of the controversy concerning posthumous harm can be attributed to vagueness in our ordinary concept of harm, and to ambiguities attributable to the different traditions Kleinig has identified. Other factors probably also contribute to the muddying of the controversy. For example, the fact that it is rational (and perhaps morally justifiable) to be more concerned about the quality of life of the living than the quality of life of persons who are now deceased." However, some of the controversy probably arises from the fact that people disagree as to what form a theory of harm should take. For this reason I will briefly comment on how different proposals make different determinations regarding posthumous harm. On two of the theories I mentioned, posthumous harm does not appear to be a possibility: the theory according to which harm occurs only if a person suffers experientially (section 3.1), and Kleinig's minimal welfare-interest theory. With respect to the latter, it seems unlikely that posthumous events could hinder people from acting as 'purposing, self-reflective, and responsible agent[s]'.
6.2 Posthumous harm becomes possible on both Feinberg's desire-based theory and my quality of life proposal. The main differences between Feinberg's theory and my proposal concern non-posthumous cases. However, differences also occur in the explanation given of posthumous harm. Consider Sam who is a medical scientist. He strongly believes that a drug he has isolated can cure lung cancer. For a long time Sam has hoped that he would be the person who would provide a cure for lung cancer. Let us suppose that Sam's hopes were reasonable ones and that he was singleminded in pursuing this desire. Some time after Sam dies researchers (working for another drug company) discover another cure for lung cancer. They choose to ignore Sam's results, and market their own drug. Later again, yet other researchers examine Sam's research records, and realize that his observations are crucially important; for Sam's discoveries are uniquely pertinent to a new search. They publicize Sam's contributions to medical science, and go on to utilize Sam's results in developing a vaccine for a recently 'discovered' disease, AIDS. On Feinberg's theory, Sam is harmed because for many years he 2i This is probably one reason why people can be prosecuted for libellous or slanderous comments against a dead person, only on the grounds of effects on survivors.
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pursued a doomed desire. Furthermore, as Sam did not have other relevant desires, the later posthumous events do not ameliorate the harm. On my proposal, the initial harm is partially ameliorated. We learn this in the long run. The reason is that the value of one's actions can be enhanced by completely unanticipated achievements.
University of Illinois at Chicago REFERENCES Aristotle, Nicomachean Ethics, trans. W . D. Ross, in The Basic Works ofAristotle, ed. R. McKeon (New York: Random House, 1941). Barry, Brian (1965) Political Argument (New York: Humanities Press). Benn, Stanley I. (1967) 'Freedom and Persuasion', Australasian Journal of Philosophy, 45: 259-75. Catafieda, Hector-Neri (1980) 'Conventional Aspects of Human Action, Its T i e , and Its Place', Dialogue, 19: 436-60. Cooper, John (1979) 'Friendship and the Good in Aristotle', The Philosophical Rtuim, LXXXVI (1977), 3: 219-315. Feinberg, Joel (1977) 'Harm and Self-interest', in P.M.S. Hacker and J. Hax (eds), Lam, Morality, and Sodety: Essays in Honor of H. A. L. Hart (Oxford: Clarendon Press), pp. 284-308. The Moral Limits of Criminal Law, Vol. I : Harm to Othen (New York: Oxford University -(1984) Press). Furley, David (1986) 'Nothiig T o Us?' in M. Schofield and G. Striker (eds), Norms of Nature (Cambridge: Cambridge University Press): 75-91. Hornsby, Jennifer (1980) Actions (London: Routledge and Kegan Paul). Kleinig, John (1978) 'Crime and the Concept of Harm', Amm'can Philosophical Quarterly, 15 (1978): 27-36. Nagel, Thomas, 'Death1, Nous, 4 (1979): 73-80; reprinted with revisions in T. Nagel, Mortal Questions (Cambridge: Cambridge University Press, 1973): 82-100. Oates, Stephen B. (1982) Let the Tmmpet Sound: The Life ofMartin Luther King, Jr. (New York: Harper & Row). Parfit, Derek (1984) Reasons and Penons (Oxford: Oxford University Press). Partridge, Ernest (1981) 'Posthumous Interests and Posthumous Respect', Ethin, 91 (1981): 243-64. Pitcher, George (1984) 'The Misfortunes of the Dead', American Philosophical Quarterly, 21 (1984): 183-8. Plato, Gorg'as, trans. W. D. Woodhead, in The Collected Dialogues of Plato, ed. E. Hamilton and H. Cairns (New York: Random House, 1961).
