Legal Status of a Dead Person: A Critical Analysis in the Light of Jurisprudence

Abstract

This study states that while legal rules affecting the dead often have a practical aspect, one of the primary, and yet unrecognized, forces driving the creation of these legal rules are cultural norms, including dignity and respect for decedents’ wishes. In reaching this conclusion, this study adopts an interest theory approach to rights. Interest Theory recognizes persons currently incapable of making choices, such as the mentally incapacitated and infants, as potential right-holders. Using interest theory, this study argues that the dead, although unable to make real-time choices, are capable of being legal right-holders. Furthermore, certain interests, such as the interest in seeing one’s offspring survive or the interest in one’s reputation, can survive death. When these interests are protected by legal rules, the dead are granted de facto legal rights that can be enforced against the living. The law also strives to honor a decedent’s wishes and to protect his interests because society has chosen, within limits, to adhere to the principle of autonomy. This is why courts often consider a decedent’s wishes when determining the disposition of his corpse or property.