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Feinberg's Theory of “Preposthumous” Harm

Published online by Cambridge University Press:  13 April 2010

W. J. Waluchow
W. J. Waluchow
Affiliation:
McMaster University
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Extract

In his recent book, Harm to Others, Joel Feinberg addresses the question whether a person can be harmed after his or her own death, that is, whether posthumous harm is a logical possibility. There is a very strong tendency to suppose that harm to the dead is simply inconceivable. After all, there cannot be harm without a subject to be harmed, but when death occurs it appears to obliterate the subject thus excluding the possibility of harm. On the other hand, there is an inclination to believe that harmful events can indeed occur posthumously. As Aristotle observed, “a dead man is popularly believed to be capable of having both good and ill fortune—honour and dishonour and prosperity and the loss of it among his children and descendants generally—in exactly the same way as if he were alive but unaware or unobservant of what was happening”. Feinberg sides with Aristotle on this issue and develops an intriguing theory purporting to show how posthumous harms are possible. My intention in this paper is to argue that Feinberg's account meets with such serious difficulties that we must either develop an alternative theory or agree with those who claim that death logically excludes the possibility of harm. I shall begin in §2 with a brief sketch of Feinberg's provocative theory. This will be followed in §3 by my comments and criticisms. Section 4 will close with suggestions about where Feinberg's account goes wrong and how it might be repaired.

Type
Articles
Information
Dialogue: Canadian Philosophical Review / Revue canadienne de philosophie , Volume 25 , Issue 4 , Winter 1986 , pp. 727 - 734
Copyright
Copyright © Canadian Philosophical Association 1986

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References

1 Feinberg, Joel, Harm to Others: The Moral Limits of the Criminal Law (Oxford: Oxford University Press, 1984),Google Scholar reviewed by the author in Canadian Philosophical Reviews (Fall 1985). Unless otherwise indicated all references are to this text.

2 A closely related question addressed by Feinberg is whether death itself can be harmful to its victim. Feinberg's answer is that it can. See, ibid., 79–93. I will, for the most part, ignore Feinberg's insightful comments on the harmfulness of death.

3 Ernest Partridge develops this line of reasoning in his “Posthumous Interests and Posthumous Respect”, Ethics 91 (1981), 243–264. Cf.CrossRefGoogle ScholarMothersill, Mary, “Death”, in Rachels, J., ed., Moral Problems (1st ed.; New York: Harper & Row, 1971), 371–383Google Scholar.

4 Aristotle, , Nicomachean Ethics, trans. Thomson, J. (Baltimore, MD: Penguin Books, 1953), I. 10,Google Scholar 1st par., cited by Feinberg, , Harm, 88Google Scholar.

5 It should perhaps be noted that the discussion presupposes that by “death” is meant real death, where the subject is no more.

6 Feinberg also holds that death itself can be harmful to its victim.

7 Obviously some of V's interests, such as his interest in bodily health, cannot survive.

8 In an earlier article, Feinberg held that there was indeed a subject but that it was not a person. Rather the subject of a thwarted interest was the interest itself, “detached” from the person, now dead, whose interest it once was. See Feinberg, J., “Harm and Self-Interest”, in Raz, J. and Hacker, P., eds., Law, Morality and Society: Essays in Honour of H. L. A. Hart (Oxford: Clarendon Press, 1977), 285–308.Google Scholar It was this view which was criticized by Partridge in “Posthumous”. See 2 above.

9 Feinberg's analysis, as he notes (see 89), draws heavily upon an unpublished article by George Pitcher which has since appeared in The American Philosophical Quarterly 21/2(1984), 183–188,Google Scholar under the title “The Misfortunes of the Dead”. My comments on Feinberg's analysis apply to Pitcher's theory as well.

10 Hence the reference to “preposthumous harm”.

11 See 90–91.

12 Feinberg, , Harm, 91,Google Scholar citing Pitcher, “Misfortunes”, 188.

13 See Partridge, , “Posthumous”, 246–255.Google Scholar

14 See the preceding quotation from Feinberg, 83.

15 It is also correct, it seems, to say that he was therefore going to be harmed. But this once again raises the problem of the subject; there is no one existing at the time one is inclined to say he is going to be harmed.

16 Indeed, this is a paradigm of the sort of case which prompts the belief that the dead can be harmed.

17 Cf. Feinberg's discussion of Cases A-C, Harm, 88–89.

18 This is true unless Feinberg wishes his analysis to apply only to posthumous harms. But it is difficult to see how he could develop a plausible explanation for why posthumous harms occur before the events which give rise to them, but the same is not true of antemortem harm.

19 I wish to thank my colleagues David Hitchcock, David Pfohl, and Evan Simpson for helpful comments on earlier versions of this paper.