Legal Obligations to the Dead

Abstract

It is generally accepted that legal obligations that are owed to the estate of someone who has died cannot be justified on the basis of the post-mortem interests of the deceased, as the deceased has no such interests. This paper examines the arguments that can be made for such obligations being owed in order to protect the ante-mortem interests of the deceased. I argue that the most popular such argument - what I call the 'Argument from Sacrifice' - is much more limited than is commonly supposed, if we correctly understand what is involved in someone's making a sacrifice. I go on to argue that no argument can be made in favour of people's owing the estate of someone who has died an obligation not to unjustly defame the deceased.

Keywords: Private law; obligations; tort; death; defamation; sacrifice; human flourishing

JEL Classification: K13, K36