Respect, agency, and posthumous wishes

ABSTRACT

The normative significance of posthumous wishes is commonly presented as supervening upon the normative significance attributed to past people. The problem with this strategy is the lack of consensus on the normative significance (if any) of past peoples. In this paper, I sidestep this issue by casting posthumous wishes as but a type of choice people make, thereby presenting their normative significance as supervening on the normative significance we attribute to choice-making (agency) and not on the normative significance of past people. It will be my argument that so long as one’s hypothetical interlocutor assigns value to (at least their own) agency, they are categorically compelled to assign normative significance to posthumous wishes, regardless of their beliefs concerning the ethical status of past people or the nature of death. I then conclude the paper by presenting the implications of this framework in the context of archaeological practice to demonstrate this perspective’s capacity to yield intuitive, actionable guidance with firm philosophical foundations.

Keywords:

• Justice
• posthumous wishes
• archaeology
• respect
• culture
• belief

Introduction

‘Be respectful’. This is the most consistent piece of moral and legal advice for interacting with the dead. However, as Geoffrey Scarre and Sarah Tarlow have argued, the popularity of this imperative can largely be attributed to its vagueness and, ultimately, its uselessness for those seeking guidance.¹ Even amongst those who agree that posthumous wishes are normatively valuable, there is great disagreement over where this value comes from, leading to diverging opinions as to what respect entails, reducing the imperative to agreeable but useless guidance.²

In this paper, I focus on posthumous wishes as a category of choices individuals make, tying the normative significance of posthumous wishes to the normative significance assigned to agency. This will allow me to argue that so long as one’s hypothetical interlocutor values (at least their own) agency, they have cause to assign posthumous wishes normative significance regardless of their beliefs regarding the nature of death nor the normative significance (if any) of past peoples. This will privilege and subject posthumous wishes to the same normative rules applied to valuing agency generally, rules I will explore towards the end of the paper to present this perspective’s capacity to yield actionable, context-specific moral guidance with firm philosophical foundations.

My argument is categorical in nature. I will not be arguing that agency is normatively valuable but, instead, presenting assigning normative significance to posthumous wishes as a logical conclusion of assigning agency normative significance.³ This is done to separate the question of the normative value of posthumous wishes from the debate over the ethical status of the dead.⁴

The paper is divided into six sections. In Section One, I outline the categorical nature of respect. In Section Two, I highlight some of the more commonly held categorical rules that arise from assigning normative value to agency. Sections Three and Four then explore the relevance of (posthumous) wish making if one assigns normative value to agency, highlighting how one can unjustifiably fail to respect (posthumous) wishes as someone who assigns normative significance to agency, respectively. Section Five will then focus on the ethics of posthumous wish making and the normative power of context, demonstrating how context can determine whether a justifiably made posthumous wish should still be honoured given changes in circumstances. Section Six will then apply these lessons to the context of archaeology’s interactions with the dead to demonstrate the potential of this framework to provide actionable moral guidance grounded in the assumption that our interlocutor values (at least their own) agency.

Before I begin, I should state that I am aware that posthumous wishes can be normatively significant in other ways and for other people other than the deceased. I am not challenging these ideas, however, this paper exclusively focuses on the ethics of posthumous wishes as posthumous wishes and expressions of agency.

This paper will contribute to the ongoing discussions on the ethics of posthumous wishes, archaeological ethics, and the rights of the dead, as well as broader debates such as how we understand respect, trust, and agency normatively.

Philosophy of respect

What does it mean to ‘respect’ something? Respect concerns how one should supposedly conduct themselves given (1) a certain normative perspective and (2) the qualities this normative perspective compels one to look out for when interacting with phenomena.⁵ For example, assuming a health-focused normative perspective would compel one to recognise certain qualities about: human health and biology, clothing options, and the weather before leaving the house. The individual who sees that it is raining and so puts on a coat before leaving the house can be considered as having respected the relevant qualities of the weather, their biology, and their clothing according to a health-focused normative perspective.

Given that different phenomena can share the same qualities that are relevant to one’s normative perspective, respect entails assuming a categorical perspective. Returning to the previous example, if one has two coats that would provide equal protection from the rain, one would consider them categorical equals and consider the choice between them as arbitrary, at least in respect of one’s health-focused normative perspective. This is not to say that all phenomena should be interacted with in the same way if they possess quality X. Some qualities can manifest differently or to different extents in different phenomena, justifying different treatment. For example, one can justify treating two remedies differently if one had better curative properties than the other. Here, one justifies differential treatment via one’s normative perspective and how the phenomena relate differently to the aims of this perspective.

Context can also be normatively significant given that it can determine what course of action is most consistent with the aims/good(s) of one’s normative perspective. For example, going out in the rain without a coat would typically be considered contrary to protecting one’s health until one justifies doing so because the house was on fire. In this context, the qualities of the human health, rain, and the coat are unchanged, but the context determines the best course of action for one’s health.⁶ In these cases, it is worth remembering that phenomena get their normative significance from one’s normative perspective meaning that their normative significance is always relative to what is consistent in a given context with the aims of one’s normative perspective.

Respect therefore entails assuming a categorical perspective where phenomena are categorised relative to their relationship towards some perceived good.

Respecting choices as expressions of agency

To argue that one should respect a given phenomenon, for example, posthumous wishes, and to argue that one shows this phenomenon respect in a specific way requires getting one’s interlocutor to agree to one’s normative perspective and how one understands the phenomenon’s relevance within this normative perspective.

A common starting point for most ethical theories is the premise that agency is normatively valuable.⁷ By agency, I refer to the individual’s capacity to observe, reason, and act. The appeal of this as the initial premise is that, whom ever is our hypothetical interlocutor, they will already be assigning value to (at least their own) agency, in the form of their choice to oppose us and their expectation that we assign value to their choice and reasoning to do so; that we assign normative value to (their) agency.⁸ The appeal of this premise is commonly reinforced by the reductio ad absurdum of choosing not to value choice, inviting the question of the value of this choice, binding our hypothetical interlocutor whom demands we respect their choice(s) to the rules of valuing choice.⁹ This invites the question of how does one avoid embodying this reductio when it comes their own desires and choices and the desires and choices of others?

The first thing that should be noted is that this perspective commits us to categorising people relative to their capacities as agents. This sentiment informs the common intuition that compos mentis adults are categorically and therefore normatively equal as agents.¹⁰

The second thing that should be noted is that choices can be incompatible with this perspective and, therefore, embody the reductio. For example, the intention to enslave another entails ignoring the would-be victim’s equal standing as an agent. Equally, accommodating the wishes of the aspiring slaver would also embody the same self-defeating logic because one would be choosing to allow individuals to not be treated relative to their possession of agency. Here, we see a case where respecting someone’s decision does not equate to accommodating it as the original choice and the choice to permit are both incompatible with valuing choice. In such a case, one may argue that in the name of valuing choice one is entitled to obstruct an individual’s choice, given the reductio of this specific choice and the choice to permit it.

The third thing that should be noted is the relevance of data and validity when it comes to respecting choices and people as choice makers. Valuing choice compels us to recognise the relevance of data and validity when it comes to making choices. The individual who is better informed can better choose their fate than their less informed or misinformed counterpart.¹¹ Wilful ignorance or a rejection of data and validity’s normative significance is therefore incompatible with valuing choice. This gives us grounds to obstruct someone’s choices if the data leads us to the conclusion that accommodating this person’s choice is incompatible with valuing agency in the abstract and, therefore, embodies the reductio.¹²

Fourth and finally, we should acknowledge the relevance of intention and relative capacity. This is especially the case when it comes to discussions on blameworthiness. Different people (especially at different times) have different access to information and different levels of dependency on certain individuals and institutions for their data. It can therefore be relatively impossible for a given individual to know that their intended course of conduct is incompatible with valuing agency. This does not change the fact, however, that if a third party knew that someone’s intended course of conduct is incompatible with valuing agency this third party should obstruct this individual. It is normatively significant when it comes to blameworthiness if someone wilfully acted in a way that embodied the reductio, including acting upon wilful ignorance or in defiance of facts compared to someone who lacked access to information or were misinformed. However, this does not change the fact that one should obstruct the individual’s choices to avoid the reductio themselves by treating a choice in a manner that is incompatible with the idea that choice is normatively valuable.

Defining posthumous wishes

This brings us to the question of: how are posthumous wishes relevant for someone who assigns normative value to agency?

First, an account of what posthumous wishes are: posthumous wishes are the culmination of the intentions, efforts, and, therefore, the choice(s) of an individual concerning matters after they will die. Consider the common practice of someone leaving an heirloom to their children. This individual made certain choices in life with the idea that they can leave it to their children in the event of their death. They also forwent certain other choices because of this possibility. They therefore made certain choices with this object with their death in mind. For Joel Feinberg, this is sufficient to argue that posthumous wishes have normative significance even if the dead do not, as posthumous wishes are a type of choice agents make and, therefore, reflect the agent’s status as an agent (Feinberg, 1977, pp. 306–7).

Feinberg reaffirms this sentiment about how one respects others as agents in his later works on the difference between wronging and harming someone. For Feinberg, harming someone as an agent merely involves limiting their agency. Wronging, meanwhile, entails unjustly challenging an agent’s status as an agent. With this distinction, Feinberg argues that one can harm someone without wronging them and wrong them without harming them (Feinbern, 1987). For example, imprisoning someone does necessarily harm the individual but does not necessarily wrong them, as one can have justified reasons for punishing individuals: namely to protect and/or reaffirm the rights of others as agents. The wrongness of the act, according to Feinberg, is tied to their rights as an agent which, as he argues, includes their rights concerning posthumous manners.

Geoffrey Scarre makes similar points in his discussion on retrospective significance and retrospective harm. As Scarre notes, posthumous wishes and the efforts attached to ensuring that they are enacted are inescapably expressions of an individual’s agency, meaning that how we interact with them reflects the value we assign agency and to individuals as agent.¹³ When we invalidate someone’s posthumous wishes, we challenge the normative significance of these past people’s agency and, by extension, the normative significance of agency in the abstract.

Assuming that biological death is the end of the agent as a conscious entity, we accept that we can ‘get away with’ invalidating a dead person’s expression of agency. However, embracing this idea is inconsistent with the idea that agency is normatively valuable. Rosalind Hursthouse and Philippa Foot make a similar point regarding the wrongness of lying to others regardless of whether the third party could ever discover that they were lied to and/or if they were negatively impacted by the lie. The wrongness of the act is not tied to getting caught but to the fact that one chooses to conduct themselves in a manner that is inconsistent with valuing choice and, therefore, embodies the reductio. Feinberg makes similar points in his demarcation between wronging and harming others as he casts wronging someone as invalidating someone’s status as an agent, which can be done by denying their (posthumous) wishes their due moral worth.¹⁴

In our efforts to demarcate the dead from the living, we typically focus on the dead’s lack of agency and the living’s possession of agency. This demarcation requires we assign normative worth to agency and compels us to recognise posthumous wishes as an expression of agency. Failing to treat them as such entails the reductio and, therefore, cannot be justified as compatible with valuing agency.

Relational (antemortem) autonomy

So far, I have only considered the individual as an isolated entity. However, this ignores an essential variable when it comes to understanding an individual’s relative agency: other people. Having people one can trust, cooperate with, and learn from is highly relevant when considering what options a given individual has and, by extraction, how much agency they have.¹⁵

Focusing on posthumous wishes, consider two individuals. The first comes from a society where posthumous wishes are given no normative or legislative standing. This individual cannot make decisions about leaving things to people and is compelled to factor this into their decisions throughout their life. There is no option for them to save and leave things behind for their children, there is only the choice of using it or risk losing it. The second, meanwhile, comes from a society where posthumous wishes are respected morally and legally. They therefore can make decisions with this in mind. The existence of others is an important factor in determining the relative amount of agency of the individual.

This invites the question of what posthumous wish architecture should look like. As we are grounding the value of this architecture in valuing agency, we should appreciate the reductio of using any interpersonal relationship, like one concerning posthumous wishes, as an excuse for conducting oneself in a manner that is inconsistent with valuing agency.

Colwell-Chanthaphonh and Ferguson make this point in reference to the reductio of establishing and/or maintaining trusting relationships that are incompatible with valuing agency (Colwell-Chanthaphonh & Ferguson, 2006, p. 129). For the authors, the immorality of breaking trust is grounded in the idea that the two (or more) relevant parties chose to enter into this agreement, meaning that the normative significance of this relationship supervenes on the value of this choice and, therefore, on the idea that choice is normatively significant. One therefore cannot initiate or maintain a trusting relationship if it is incompatible with valuing agency. For example, if a friend asked you to look after their plants and you neglect this responsibility, you invalidated their choice to entrust you with their plants when you accepted the responsibility. However, if lightning struck the house, setting it on fire, it would not be consistent with valuing agency for your friend to expect you to risk your life (and, therefore, your agency) for the sake of the plants. For Annette Baier, this reflects, what she refers to as, the necessary discretionary powers we must use in trusting relationships to proactively ensure the relationship remains morally justified (Baier, 1981). Meanwhile, for David Enoch, such cases demonstrate the normative power of context when it comes to determining what is most consistent with valuing agency (Enoch, 2017).

Now, it should be noted that there are two kinds of trusting relationship: implied and contractual.

Implied involve certain expected relationships with others. For example, when you leave the house each day, you expect that you can trust others not to murder you. For Kohn, our commitment to valuing agency obliges us to accept certain implied trusting relationships because failing to honour them would entail choosing to act in a manner inconsistent with choice: embodying the reductio.¹⁶ For example, to murder someone is to fail to respect their standing as an agent and to compromise the social conditions necessary for greater agency. The less we are able to feel like we can go out the house and trust others won’t murder us, the less we will be able to make the choice to leave the house or make other choices that now carry the heightened risk of murder. A commitment to agency therefore requires being sensitive to how one’s actions will impact the implied trusting relationships that (could) exist in society, given this will impact the relative agency of its members.

Other trusting relationships are contractual. These require the relevant parties to consent to the terms of a particular trusting relationship and cannot be enforced purely by appealing to a commitment to one’s normative perspective as was the case with implied trusting relationships. Consider the following example: I am going on holiday and need someone to look after my houseplants. I cannot just assign my neighbour this responsibility, for this would be to disrespect their equal status as an agent and, instead, treat them as my subordinate whom I can just burden with responsibilities. If I just put a note and my housekey through the neighbour’s letterbox, I cannot claim that I have entrusted them with the plants, it is more accurate to say that I abandoned my plants to them. However, should my neighbour consent to looking after my house plants, a trusting relationship is established which changes the normative significance of them not tending to my plants, namely to an act of disrespecting my decision to entrust them with this responsibility. The reason I could claim immoral disrespect if I returned to neglected houseplants is via the idea that agency is normatively significant, in this case the agency of these two parties when they agreed to a specific relationship with certain responsibilities.

Now, recall that context can be normatively significant as it can determine what course of action is the most consistent with valuing agency. The same applies to trusting relationships. A trusting relationship may start off as consistent with valuing agency but due to unforeseen circumstances it ceases to remain consistent with valuing agency. In these cases, it is worth recalling that the trusting relationship’s normative significance supervenes on the idea that agency is normatively significant and, therefore, one cannot continue to justify maintaining such a relationship by appealing to the idea that agency is normatively significant.

We must also recall the normative significance of context. Again, trusting relationships gain their normative significance from the idea that agency is normatively valuable. Now, circumstances can change to the point that what started off as a justifiable, trusting relationship can cease to continue being compatible with valuing agency. Keeping with the houseplants example, let us assume Tim agrees to look after the plants but whilst I am away that lightning strikes the house and causes a housefire. Tim could have endeavoured to save the plants, putting his life at risk to do so, however, to expect him to do so would not be compatible with prioritising agency. In this situation, we can say that both parties established a justifiable trusting relationship but the context developed in such a way that it became logically untenable to maintain it.

Cooperation and trust are relevant phenomena for those valuing agency and they compel us to consider the individual, not as an isolated entity, but as a part of a (hypothetical) member of society. Breaking trust should always be considered controversial but we must always recall that trust’s normative force come from valuing agency, meaning that trusting relationships are and only remain morally justifiable so long as they remain consistent with valuing agency. This invites the question of what our relationship should look like with our ancestors and our successors: what relationships are implied by a commitment to valuing agency and what relationships can we contract them into?

Respecting posthumous wishes

Assuming that are ancestors, contemporaries, and our descendants, like us, value their own autonomy and recognise the reductio of choosing not to value choice, we can depend upon implied trust to say that our successors should respect the choices we made concerning posthumous matters as choices we made and recognise the controversy of choosing to invalidate these choices. This is enough to establish that posthumous wishes are normatively significant in one sense, but what about those posthumous wishes we contract others to fulfil?

We make wills that (contractually) entrust others with certain responsibilities. However, as in life, we need our trustee(s) to consent to this arrangement if they are to be obliged to accommodate certain posthumous wishes. Recall the example where I abandoned my houseplants to my neighbour. I cannot say they disrespected my agency by neglecting my houseplants because I cannot decide what extra moral burdens others should have, they have to consent to these demands or else I would be disrespecting their equal standing as an agent. The same goes with death; there is a reductio ad absurdum with claiming one’s posthumous wishes are morally valuable as expressions of agency when said posthumous wishes do not entail respecting the moral status of others as agents.

Consider the infamous case of Franz Kafka who tasked his friend Max Brod with the responsibility to burn all his unpublished works. I say tasked rather than entrusted as, in life, Brod made it known to Kafka that he did not consent to such a responsibility. Kafka could not oblige Brod to undertake this task, as this would be Kafka disrespecting Brod’s status as an agent. Kafka’s decision to leave Brod as his literary executor, therefore, should be cast as Kafka choosing to abandon his writings to Brod, much like my decision to abandon my houseplants to my neighbour whilst I go on holiday (Sax, 2001, pp. 45–47).

But how do we determine which posthumous wishes deserve accommodation and which do not? To answer this, let us consider what we will leave behind and what we can request of others when it comes to our legacies.

With death, we leave three things behind: a body, amassed property, and a reputation. These are things that, in life, the individual is seen as entitled to via the relevance of these phenomena to the individual’s status as an agent. In life their body is their means to exercise their agency, their property is what objects they are entitled to exercise their agency over, and their reputation is what they depend upon when it comes to their options with others. An individual who is paralysed, robbed, and has their reputation tarnished will find themselves with fewer options, lesser autonomy, than their able-bodied, wealthy, respected counterpart. It is therefore immorally disrespectful to threaten someone’s bodily integrity, property, or reputation without justification.

It should be noted that an individual is not obliged to leave anything behind. For example, imagine someone gets diagnosed with a terminal and debilitating disease. In response to this diagnosis, they liquidate their assets and use the money to fund a justifiable but reputation and body destroying final few months. To deny them of this is to deny them of their status as an autonomous agent, for it is to treat them as if they owe others something more than equal respect.

What is left to us by the dead is left because of the decisions of the antemortem person who was, decisions that may reflect their (potentially justified) belief that others would respect their posthumous wishes. The ethics of bequeathing is not so much about someone’s decision to affect things after their death, but about respecting their decision, prior to death, to leave something behind.

That said, whilst posthumous wishes are normatively significant because of their status as expressions of agency, we are compelled to recognise how death is normatively significant to the relationship between these phenomena, the individual, and others. One cannot expect the same rights in life as in death because this would ignore this important transition, as I will now show.

Starting with the macabre; one’s body ceases to be the means with which they exercise their agency and starts to become a biological threat to the health and, therefore, autonomy of others. Whilst in life one may have the right to be physically in a public park, this right, for agency valuing reasons, must be limited to when we are talking about a living person’s body. This is also the same reason we condemn live organ transplants without the individual’s consent but debate the ethics of posthumous organ donation; recognising that, after death, the individual does not really have much use of said organs.

Meanwhile, an individual’s property ceases being something they can interact with and so the idea that we are disrespecting their autonomy by saying they cannot stay in their house after they die is unsubstantiated; we are merely responding to the normatively significant change in your relationship with objects.¹⁷

Finally, on your reputation, this ceases to be the means you acquire certain options when it comes to your interactions with others, as death has already robbed you of these options.¹⁸ Death should therefore have implications for one’s right to privacy. Tarlow makes this point indirectly as she engages with the question of whether some aspects of an individual’s private life are too intimate for publication. As she notes, sometimes we lose our right to privacy when it poses a threat to others, using the example of an individual possessing an infectious parasite to show how the desire to retain privacy may be contrary to what is consistent with respecting others and their agency. She also notes how the respectful thing to do in these instances is reflect on what information needs to be disseminated to address this concern whilst also minimising the negative impact on the individual whose information is being made public. All of this implies a functionalist view of the right to privacy giving us cause to reflect on its function when the individual is already dead (Tarlow, 2006, pp. 210–211). As in life, one is only entitled to an accurate reputation, this should also be the case in death. Given that posthumous revelations will have no impact on your options as an agent, it should therefore be questioned as to whether an individual can have a right to posthumous privacy.¹⁹

Death is normatively significant for the relationship between an agent and their body, property, and reputation. Equally, death is normatively significant for the relationship these three phenomena have with others. What it means to respect someone’s autonomy through their interactions with the other’s body, property, and reputation must reflect what relationship the parties have to these phenomena, with death being an important factor here.

This applies regardless of whether a posthumous wish was immoral upon inception or became immoral with the passage of time, given that one cannot justify committing an unjustifiable act regardless of one’s motivation. For example, suppose that Foteini agrees to lend her car to Alberto on the explict agreement that he will return it to her for 5PM. On the way back to return the car, Alberto comes across someone in immediate medical need. The normative weight of his promise to Foteini comes from the idea that agency has normative value, meaning that it cannot be used to justify needlessly allowing an agent to die. Furthmore, Foteini would be employing the reductio if she were to tell Alberto to allow this person to die for the sake of her promise, as this would beg the question of the normative significance of her promise. As such, did show respect for the trust Foteini placed in him even though he did not keep to the terms of the arrangement because the context changed to the point that he can justify not keeping to the terms of the original agreement.

Now apply these sentiments to a case where an individual requests to be buried in their family mausoleum in a city centre. At the time of them making this request it is ethically unproblematic: this is their body, their mausoleum, and their request is consistent with valuing autonomy in the abstract given that their request is consistent with valuing individuals relative to their autonomy. Unfortunately, they die during an epidemic and showed signs of the virus just prior to their death. This change in contexts means that, though their request was justifiable when they made it, it would not be immorally disrespectful for us to not accommodate it. It is fair to say that the antemortem person has been retroactively harmed, in that their capacity to make funerary requests was denied by the epidemic, but it is unfair to say that their executors wronged them: they merely respected the request within the broader parameters of valuing autonomy.

It is easy to get preoccupied with discussions on the ethical status of a corpse or debates over the individual’s rights to posthumous wishes. However, we should focus on what posthumous wishes are and how they compare to other phenomena we treat as normatively significant. As choice-makers, we are compelled to recognise: our choices as choices, the reductio of making choices that are inconsistent with valuing choice, and that posthumous wishes are a kind of choice which we can fail to respect as choices through how we interact with their consequences. Again, we are not treating agency as normatively significant if we embody the sentiment that we can ‘get away with ignoring someone’s agency’ when they die. Either agency and, by extension, posthumous wishes are normatively significant, or both are not normatively valuable. That said, posthumous wishes are still subject to the moral parameters defined by what it means to respect agency, which compels us to not accommodate the (posthumous) wishes when doing so would not be consistent with valuing agency.

Ethics, the dead, and archaeology

Recall the relevance of knowledge when it comes to agency. One cannot choose out of ignorance, only out of informed deliberation. One does not choose one’s fate when one jumps into the dark. Valuing agency therefore entails assigning an instrumental value to knowledge and our means to acquire knowledge. This raises the question of whether one can justify the idea that one can demand others stay ignorant because it is your wish to not inform them and whether the pursuit of knowledge is a valid excuse to override someone’s efforts and wishes concerning their posthumous affairs.

Answering this question has significant implications for professions that deal with the dead, notably police forensics, medical professionals, and archaeologists (Tarlow, 2006, pp. 203–205). As Tarlow notes, the former two we are typically more accommodating towards because their activities with the dead mostly concern preventing harm to other agents. For example, the police may exhume a corpse to try and find and stop a killer. Meanwhile, a physician may trespass against religious customs in the aim of attempting to discern the cause of death and whether there is a potential public health risk. Archaeologists, meanwhile, rarely (if ever) seek data that may protect people from immediate harm. The benefits of their research are academic benefits, inviting the question of whether we can justify a posthumous wish to be immune from being a subject of archaeological research and whether we can justify ignoring the wishes of the dead for the sake of this good.

Let us first consider how the products of archaeology can be considered relevant to agency. In the case of archaeology, we are talking about the acquisition of a specific kind of knowledge: of past peoples. This can be used to inform current and future generations of humanity’s past successes and failures and moderate their conduct accordingly: emulating the successes and avoiding a repeat of the failures. For example, recent research undertaken by Lucero, Fletcher, and Coningham on how ecological disturbances undermined and effectively destroyed Maya and Khmer civilisations gives us data we can use in our response to climate change (Lucero et al., 2015). As a result of this archaeological knowledge, humanity has more knowledge and therefore agency, specifically more knowledge on how to protect human agency. Acquiring this knowledge is therefore good as far as valuing human agency goes.

However, something being instrumentally valuable for agency does not mean that we can ignore the means with which one acquires it. The acquisition of knowledge can be pursued in manner that is inconsistent with valuing human agency. For example, suppose a pharmaceutical company kidnapped people to be test subjects for a new vaccine. The tests and the resulting vaccine are successful and humanity benefits from this research, but we cannot ignore how the decision to pursue the vaccine through such practices when alternative options were available is inconsistent with valuing agency.

In the context of archaeology, however, archaeologists do not have the luxury of alternative methods to acquire agency-promoting knowledge without invalidating posthumous wishes. Because of this variable, a posthumous wish to be immune from archaeological practice is synonymous with denying humanity the only means to acquire specific, agency promoting knowledge. Let us take Tutankhamun as an example.

The idea that Tutankhamun’s posthumous wishes have normative significance comes from the belief that agency, including his, has normative significance. This is a normative perspective archaeologist, as agents who value their own agency, are also compelled to subscribe to, particularly given that they are choosing to interact with the dead and treating this choice as normatively valuable and worthy of respect, assuming they expect to be entitled to act on this choice.

An important aspect of this normative perspective is that any given expression of agency should be treated in a manner that is consistent with valuing agency in the abstract, as the alternative would entail the aforementioned reductio. This perspective and reductio grant context significant normative force, given how context can determine the relationship between an action and agency. One particularly relevant contextual variable is what options are and are not available at a given time, as we debate whether or not a given choice to commit a certain action, given the alternatives, denotes respect for agency.

Returning to Tutankhamun’s case, it is normatively relevant that, because of how history played out, particularly with tomb robbing, and given the real threat of future tomb robbing, Tutankhamun’s body was a unique and at-risk conduit for a wealth of archaeological knowledge. Because of this, accommodating his posthumous wishes becomes synonymous with denying humanity knowledge that is instrumentally valuable for human agency, and risking it being lost via future tomb robbing. None of these variables are the king’s fault, including humanity having lost knowledge of his era, but they do make it possible that invalidating his posthumous wishes can be cast as consistent with valuing agency.

We might compare Tutankhamun’s (hypothetical, though probable) wish for non-exhumation with Foteini’s condition that Alberto returns her car by 5PM. Foteini cannot expect Alberto to treat this trust as the moral authority, for its normative value supervenes on the value assigned to agency. Alberto does not demonstrate disrespect to Foteini by breaking trust in this instance, because he recognises the reductio of allowing an agent to perish for the sake of maintaining the terms of a trusting relationship that only has value if one assumes agency is normatively valuable. How Alberto goes about breaking the terms can demonstrate disrespect, but the fact that he does break the terms is not what will determine whether or not he demonstrates disrespect.

The same can be said with Tutankhamun. In Tutankhamun’s case, it is unfortunate that the context we find ourselves in is one where the only means to acquire agency promoting knowledge is through invalidating his posthumous wishes. This is neither the king’s nor the archaeologist’s fault, but it does not change the fact that accommodating the king’s wish would be to treat an expression of agency in a manner that is inconsistent with valuing agency in the abstract: a logically unsustainable decision. It would be a different story if the archaeologists could get the same knowledge through other means but elected this method, highlighting the value of context when contemplating what respect entails.

In focusing on the reductio, we have our parameters for respectful and disrespectful conduct with posthumous wishes, not in the form of a simple list of right and wrong actions, but the right and wrong kinds of decisions. Context must be king, because the normative significance of a given expression of agency will be shaped by the implications accommodating it has on agency.

This does still allow for a smorgasbord of ways archaeologists can demonstrate disrespect when they invalidate posthumous wishes. For example, accepting that invalidating someone’s posthumous wishes constitutes invalidating agency, we can cast it as a logically unsustainable choice to needlessly invalidate a posthumous wish without a pro-agency justification. For example, in recent decades, thanks to advancements in MRI technology it has become increasingly possible for archaeologists to acquire data from human remains without opening sarcophagi and unwrapping bindings. With this innovation, unbinding mummies went from being a necessary evil to an unnecessary evil; an act that can be done respectfully to one that is almost always unnecessary and, therefore, disrespectful. Again, we see the relevance of context here as technological advancement shaped the normative significance of these practices. The availability of other options will always be relevant when it comes to addressing the question of whether an act denotes respect or disrespect.

The relevance of context therefore reveals why the ethics of respecting posthumous wishes cannot be reduced to simple lists of right and wrong actions.

When looking for guidance on what one should do with a given phenomenon, one should ask (1) what the phenomenon is and (2) why is it normatively valuable. With posthumous wishes, the answer to (1) is ‘an expression of agency’ and the answer to (2) is ‘because it is an expression of agency’. This commits us to recognise how one can give too much or too little regard to an expression of agency via the reductio of treating an expression of agency, like a posthumous wish, in a manner that is inconsistent with valuing agency in the abstract. Furthermore, it gives us cause to recognise the relevance of context in these decisions, given how context can determine whether accommodating a wish would be consistent or inconsistent with valuing agency.

In the context of archaeologists working with the dead, the relevant contextual factors are that they are pursuing knowledge that can only be acquired through invalidating certain posthumous wishes, that the knowledge is beneficial to human agency, and what options they have to pursue this agential good. Disrespect is not shown by invalidating posthumous wishes, respect is shown by critiquing how one can best incorporate the choices of others in one’s more fundamental commitment to valuing agency.

Concluding remarks

We are choice makers, and one category of choices we make are efforts to secure certain events to occur after we die. In this paper, I started with the commonly held premise that our choices have normative worth and then explored how posthumous wishes are relevant for those who embrace this commonly held assumption. I also explored how a society that honours posthumous wishes gives its citizens more agency, compelling us to assign a disrespectable normative significance to posthumous wishes. If we value choice, we are therefore categorically compelled to value these kinds of choices regardless of our position on the ethical status of past peoples. From here, I then explored the implications this perspective had on those endeavouring to be respectful of posthumous wishes, doing so via application to archaeological practice.

I concede that the framework that I am proposing is complicated. Context is given normative force, wishes can start off justified and become unjustifiable to accommodate. Furthermore, some people will end up being victims of circumstance. However, none of these complications undermine the philosophical legitimacy of the framework. When it comes to the question of whether we should accommodate the wishes of others generally, we acknowledge the relevance of context and that there is more to valuing people as choice makers than accommodating the choices of others when one is physically capable of doing so. All I am arguing for in this paper is that posthumous wishes should be subject to the same rules we apply to respecting people’s choices generally, with posthumous wishes cast as but a category of choices we may undertake.

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Rob Hanson

Rob Hanson is a Lecturer of moral and political at the University of Groningen. His research focuses on inter-cultural ethics and justice.

Notes

1. Scarre, more diplomatically, argues that this imperative does ‘require a lot of unpacking before [it can] yield much practical guidance’. Scarre (2006, p. 182); Tarlow, meanwhile, demonstrates the uselessness of this term via its inconsistent application across different cultures and communities (Tarlow, 2001, p. 249).

2. One is reminded of Herodotus’ reviewing how the Callatiae ate their dead out of respect whilst the Greeks buried their dead out of respect, with both being mortified by the ‘disrespectful’ practices of the other (2003, p. 187). Saying within the Ancient Greek canon, we also have Epicurus who claimed the dead have no interests and, therefore no moral status to disrespect (Rosenbaum, 2004, p. 175) whilst Herostratus had an interest in posthumous infamy and sought it out by burning down the temple of Artemis (Smith, 1867, p. 439).

3. This distinguishes my argument from Partridge’s in his 1981 ‘Posthumous Interests and Posthumous Respect’. Whilst Partridge makes a compelling argument for respecting posthumous wishes as an extension of the social contract, my argument focuses on the normative value of expressions of agency (like posthumous wishes) in their own right from the perspective of someone who values their own agency: a categorical argument not a social contract one.

4. For a discussion the ethical status of the dead, rather than the ethical status of their posthumous wishes, see: Baier’s (1981), Brecher’s (2002), Partridge (1981), Ridge’s (2003), Smolensky’s (2009), Teague’s (2008), Winter’s (2010), Wisnewski’s (2009).

5. See Dillon (1992). These ideas build upon Aristotle’s categorical perspective within and beyond his moral and political philosophies, as found in his Organon (2015, p. 25) and Nicomachean Ethics (2009, p. 80), and serves as a fundamental principle in discussions on justice, as outlined in Barry’s (1991).

6. David Enoch makes a similar point in his 2017 article ‘Hypothetical Consent and the Value(s) of Autonomy’, in this case about an absence of consent when one has an unconscious patient in immediate need of a blood transfusion they would have likely consented to. Enoch’s argument here is that other variables, like context, can determine what it means to ‘respect’ a phenomenon.

7. Aristotle, like most virtue ethicists, ground their theories in making good decisions and respecting people as decision makers. Kantians, meanwhile, typically grounded their theories in respecting the autonomy of others. Meanwhile, Singer, a consequentialist, argued that humans have be separated from animals because of our cognitive capacities, and argument he challenges in his recognition of the cognitive capacities of animals (Kant, 2012; Singer, 1973, 1981).

8. This sentiment is expressed by Constructivists like Christine Korsgaard, who argue that the purpose of ethical discussion is to convince through rational inquiry, assigning normative force to our capacity to reason, meaning that conclusions cannot be contrary to valuing our capacity to reason: they cannot allow for irrational conclusions. See (Korsgaard, 2003; Rawls, 1971).

9. I am using choice and agency as synonyms in this paper, with both referring to deliberate action reflecting informed and reasoned choice.

10. Returning to Korsgaard, this is why she advocates, what she refers to as, Kantian Constructivism: a kind of constructivism that gives equal normative significance to each individual as an agent.

11. I say better and not completely informed, as all of our decisions will still be based upon limited data and come with the chance of misinterpretation of the data, hence our inability to perfectly predict the future (Cohen, 2011).

12. This follows Karl Popper’s infamous response to the supposed paradox of tolerance, where he acknowledges that if tolerance has value then so too does the necessary requirements for there to be tolerance, including challenging the intolerant. In this case, valuing agency compels us to recognise allowing for choices that undermine people’s statuses as agents. See Popper (2012, p. 581).

13. Scarre (2014, pp. 138–139); where Scarre assumes a Kantian position on our capacity to make rational decisions and our obligation to respect these decisions, including those decisions we undertake concerning our posthumous affairs.

14. See Chapters 3 and 6 in Feinberg’s ‘Harm to Others’. These ideas are reminiscent of Rosalind Hursthouse and Philippa Foot’s works where the two talk about lying to: the dead, trusting, and stupid. Their argument is that though the individual may not be harmed in any conventional sense by the liar and even though the liar only chose to lie because they could ‘get away with it’, the liar fails to respect the third party as an agent deserving the truth. See Hursthouse (1999, pp. 212–213), Foot (2001), Chapter 2, 3, and 6

15. This is why Popper argued that valuing freedom requires a commitment to the kind of socio-political organisation necessary for people to trust, cooperate, and get informed. See Popper (2012, p. 581).

16. See Kohn (2008), particularly the first chapter where Kohn outlines our dependency on these implied trusting relationships.

17. We might cast the rationale for why we do not have to accommodate the wish via the Lockean concept and immorality of waste. For Locke, one does not have the right to take stuff out of nature that one cannot use and which could have been used by others, for this is inconsistent with valuing liberty (2003, p. 116).

18. Pitcher notes how one’s reputation can have posthumous implications for those who survive your death like family, friends and associates. However, this paper is concerned with its relevane to the person who has since died (Pitcher, 1984).

19. Naturally the revelation may have damaging effects on survivors of the dead whose reputation is tarnished via their association. However, this paper is only focusing on normative limits of a right to posthumous privacy for the sake of the wish-maker and their standing as an agent.