Academic journal article Journal of Ethics & Social Philosophy

The Invisible Hand from the Grave

Academic journal article Journal of Ethics & Social Philosophy

The Invisible Hand from the Grave

Article excerpt

Imagine what a country would be like if the dead could legally vote. We could pass a law permitting citizens to write a "perpetual vote" into their wills, allowing them to plan a vote for their preferred candidate type, party, or issue, in every election forever, and the government would see to it that these votes would compete with the votes of the living.

We have overwhelmingly good moral reasons to reject such a society. The dead, after all, are exempt from the benefits and harms of current political institutions. They are also perpetually under informed. They cannot learn about the relevant facts that bear on sound political judgment, such as facts about technological, ecological, demographic, moral, and social changes. To give the dead perpetual political power would dilute the power of the living to shape the institutions that they and their descendants must live with. It could subject future generations to political institutions that operate completely contrary to their needs, values, and choices.

The political philosophers most influential to the founding of the United States recognized these moral considerations. Tomas Paine claimed that rule by the dead "is the most ridiculous and insolent of all tyrannies." (1) Tomas Jefferson wrote in 1824, "Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere mater, unendowed with will." (2)

If we agree with these sentiments that deny political power to the dead, do we have similarly good moral reasons to deny economic power to the dead? We certainly do not act like it. Trillions of dollars in the US economy and many legal institutions at all levels are tied up in executing the wishes of the dead in the United States and other common law countries like Britain, Ireland, and Australia. One simple example is the conditional bequest. You may require, as a condition of inheritance, that your grandchildren marry within a religious faith, that your wife smoke at least five cigarettes a day, or that a school be named after you in perpetuity, forbidding a change in name even if the school would otherwise go bankrupt. (3) Conditional bequests have a long and entertaining history, and sometimes the conditions remain in effect many decades beyond the testator's death. (4) The state enforces such conditional bequests on behalf of the dead even when the state has no independent interest in whether the conditions are satisfied, and all affected living parties prefer that the conditions not be upheld.

US law also recognizes a financial instrument called a dynasty trust, which allows individuals to secure wealth in a tax-sheltered trust for their descendants, in perpetuity if they choose. Such wealth can grow tax free, is transferred tax free, and can even be shielded from all future creditors. (5) These dynasty trusts make it possible for heirs of the super-rich to sustain affluent lifestyles that are protected not only from the exhausting need to work, but also from the financial consequences of any poor decisions they might make. At the same time, these individuals do not have full property rights over the wealth in the trust. They could not, for instance, disinherit subsequent generations for any reason, as those rights are constrained by the wishes of the original dead founder of the trust. The irrevocable powers of the original dead founder include the amount distributed to each descendant, who counts as a descendant, what contingencies can lead to disinheritance, and how long the trust is to last. The compounding growth of the assets in such trusts can result in more and more wealth from future generations tied to the wishes of the dead.

A third legal instrument is the charitable trust, where the dead can earmark current and future wealth for some purpose considered "charitable." (6) This term is interpreted generously, and has been taken to include the care of abandoned guinea pigs and the preservation of Huey military aircraft, among other causes. …

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