ABSTRACT
Immanuel Kant tells us in his ‘Third Definitive Article for a Perpetual Peace’ [1795] that the Earth is property shared by all human beings (Kant 1983: para. 358). This argument follows Kant’s plea for what he calls a ‘cosmopolitan right…of universal hospitality’ (ibid., emphasis in original).1 It is the idea that we have a ‘right to visit, to associate’, indeed, to ‘belong’, based on ‘our common ownership of the earth’s surface’ (ibid.). What is notable about Kant’s argument for hospitality is that, although originally genetic, in the sense that this right to hospitality is derived from the fact that ‘originally no one had a greater right to any region of the earth than anyone else’, it becomes clear that Kant’s reasons are not simply structural, but ethical (ibid.).2 Owing to the fact that we share this ‘earth’ which ‘is a globe, [we] cannot scatter ourselves infinitely’, must, finally, ‘tolerate living in close proximity’ (ibid.).3 It is this idea of toleration to which John Locke appeals in his earlier Letter Concerning Toleration [1689], which is not that we should tolerate the conditions in which we live, against which in some instances Locke argues, but that we should tolerate and indeed respect others’ rights to be.4
Locke’s is a noble aim, but one that becomes troubled once we recall that we all share this globe. Kant strengthens Locke’s claim by arguing that the argument for hospitality should rest not upon moral whim,5 which in Locke allows refusal of toleration to certain groups, but upon this shared right to the earth, what Kant in hisMetaphysics of Morals, only two years after ‘Perpetual Peace’, will call ‘[t]his rational idea of a peaceful [1797], even if not friendly, thoroughgoing community of all nations on the earth…a principle having to do with rights’ (Kant 1998: 6: 352; emphasis in original). But while it is one thing to say we share the earth with one other, what does it
mean to say we share the earth with the dead?6 This is the question that Adam
Smith asks in his Lectures on Jurisprudence. How ‘sacred’ should we consider the will of the dead, let alone the ‘Will of a dead Friend’? (Corr. Letter 156 from Hume, 3 May 1776).7 In determining ‘how far the right of the dead might extend,’ if indeed ‘they h[ave] any at all’, hence in asking ‘[w]hat obligation [a]…community [is] under to observe the directions he made concerning his goods’ (LJ(A) i.150), Smith anticipates Kant’s hospitality, (Smith 1982: LJ(B), para. 169) since in Smith’s view this question of obligation can be answered only by answering the even more fundamental question of who counts, as in who counts as ‘subjects of a state’ (LJ(B), para. 86). One drawback of Kant’s right of hospitality is that, despite the wide reach he reserves for equality and the sharing of the earth, the right itself is quite narrow, consisting only of ‘the right of an alien not to be treated as an enemy upon his arrival in another’s country’ (Kant 1983: para. 358).8 This is notable in its contradistinction to Kant’s earlier insistence, in ‘Theory and Practice’ [1793], that all individuals possess these rights, those of ‘equality’ and ‘freedom’ and ‘independence’, ‘a priori’, simply by virtue of our being ‘a human being’ (Kant 1983: para. 290; emphasis in original), as in ‘a being who is in general capable of having rights’ (para. 291). Although Kant says that we possess these rights owing to our shared humanity, he also says they are enforceable only to the extent that we are ‘a member of the commonwealth’ (para. 291). It is only in civil society where these rights are secured and their exercise guaranteed, since it is only in civil society where observation of them can be enforced through what Kant calls ‘coercion’ (para. 290), thus ‘public law’ (para. 292). So, for Kant, determining the reach of these inalienable rights, let alone a right of hospitality, similarly becomes a question of who counts as a citizen of the state.Are the dead citizens of the state? If Kant’s is our criterion, the dead would seem to have three strikes against them.9
As Patrick R. Frierson observes, ‘[t]he dead are not human, not sentient, and not even living’ (Frierson 2006: 453). Where, then, does this leave the dead? Smith insists that the dead have rights, just not of the rational sort identified by
Kant; the dead possess what Smith more modestly calls a right to ‘piety’, known in the ecclesial vernacular as ‘a reverence for the will of the dead’, the sense ‘that the will of the deceased with respect to his goods or heirs should be observed’ (LJ(A) i.161). Smith soon enough moves away from this ecclesial foundation in his account of the rights of the dead, loosening the impersonal language of ‘should’ to the somewhat more convivial and inviting ‘regard we all naturaly have to the will of a dying person’ (LJ(A) i.150), the ‘pleasure’ ‘[w]e naturaly find…in remembering the last words of a friend and in executing his last injunctions’ (LJ(B) para. 165).10 But the point is the same, and it turns on Smith’s language of ‘last words’ and ‘last injunctions’. We ‘regard’ this last ‘request’ (para. 165), according to Smith, what he earlier calls ‘the right we conceive men to have to dispose of their goods after their death’ (LJ(A) i.149), not so much because this is ‘a piece of piety not to be dispensed with’ (i.161), which, while true in some respects, suggests a kind of relenting in favor of avoiding punishment to ourselves, but rather owing to the ‘impiety’ and indeed ‘injury’we ‘conceive [would] be done to the dead person’ were we ‘not to comply with [their] desire’ (LJ(B) para. 165), in this instance that slight acknowledgment, itself the basis of testamentary succession at all, that ‘the
heir of blood is [not] always thought the preferable one’ (LJ(B) para. 156). The novelty of Smith’s account of succession, meaning most simply his ‘found[ing]’ it ‘on piety and affection to the dead’ (para. 89), lies in the very creative way this wrests the right from any jurisprudential foundation.And which is where this right of the dead becomes interesting, hence a matter of jurisprudence, which is when its extension infringes upon the rights of those who are properly subjects of the state – those of the living.11 And since we are dealing with ‘inanimated bodies’ (Smith 1982 TMS: I.i.13), when we refer to any acts of infringement, from dead to living, we naturally mean those rights possessed when the deceased was alive, what Jean Barbeyrac, in his commentary on Samuel Pufendorf’s Of the Law of Nature and Nations [1706], calls our appeal to that right that we might have the ‘liberty’ to ‘dispose of [our] Goods at [our] Death’, the liberty to ‘leave them to such Persons as [w]e love’ (Pufendorf 1749: 420 n. 2). These are thus the rights of testamentary succession, or those rights, entails, belonging to what Smith calls ‘[t]he greatest of all extensions of property’ (LJ(B), para. 166). To the extent that we do wish to observe the rights of the dead, what Pufendorf gingerly interprets as the ‘Management of what belong’d to the dead’, our ‘Care of [those]…who are no longer Members of human society’ (1749: 420), how far may we extend these rights, the rights of those ‘reckon’d as no body in civil Consideration’ (418), without infringing upon the rights of those who are, or those of the living? Which is the question: what are the demands the dead may make upon the living?
