30 Dec, 10 | by Iain Brassington
Washington DC: Georgetown UP, 2010; 372+x pp
“Here’s the story; it starts at the end,” says the dead narrator at the beginning of Ali Smith’s novel Hotel World. It’s a bit of a cliche to say that the dead have stories to tell, but they do have stories to be told about them. Among them are stories about what happens to them bioogically, and what happens to them legally. It’s some of these stories that Norman Cantor seeks to tell in After We Die.
It’s worth stressing that it’s some of these stories that’s recounted. On one level, that may be a problem with the book: it combines a bit of anthropology, a bit of legal history, a bit of social history, a bit of pathology, a bit of all manner of other things. To some extent, this means that it’s neither fish nor fowl. But if Cantor wanted to write, say, a law book proper, I assume that he’d have done so – as a legal professor, he’s more than qualified; and if he wanted to write a book on pathology, he’d have known that he, a lawyer, ought to let someone else do it. So I think that the book’s best viewed as a set of essais, rather as a monograph that sets out to defend a particular hypothesis.
Such a view may be charitable, but, were we to see the book as a “serious” academic monongraph, it’d be found seriously wanting. The one big claim that’s pushed in the book is that there is such a thing as postmortem human dignity, and that we should not only take it seriously, but ally it with such other concepts as posthumous integrity and cadaveric rights. Given that dignity in the living is notoriously a hard concept to accept – it seems to mean all things to all men, and no small number of bioethicists thinks that we wouldn’t suffer, and may benefit, from consigning it to the Index – the task of getting it to do any work on behalf of the dead is no small thing. Nor, sadly, is it a task that Cantor really achieves – or, to be honest, shows all that much inclination towards executing. Appeals to the concept and its normative significance are threaded throughout the work like sutures on an autopsied cadaver; but there’s probably not enough meat to the argument to sway even those who are sympathetic to dignity in the living. For example, a Kantian account of dignity derives from the ability to dictate to oneself the moral law, and thereby to be beyond price. For more recent thinkers, including those who follow Kant’s lead, it’s to do with personhood. The dead neither dictate the moral law, nor possess personhood. (Maybe Cantor is referring to something we ought to respect as a matter of indirect duty. But if that’s it, the claim about its intrinsic quality falls apart.) If you want to make claims about dignity, or integrity as a moral concept, for the dead, then you have to do a lot more spade-work than has been done here.
The same applies to the claims that “some cadaveric rights… do exist” (p 67). This is a huge claim, and controversial at best. It deserves much more argument; but from the way that the claim is used, it’s not clear whether what Cantor thinks of as a corpse’s rights are actually just demands that the living might make on behalf of the corpse – and that’s a very different thing.
Cantor’s lawyerly background is never too far in the background. He has a deft manner, and can use (mainly American) legal cases to illustrate a point well. The cases are never called on to do more than illustrate, though: Cantor plays the role of legal anecdotalist; he wants to tell us about what seem to him interesting cases concerning cadavers – their use, their abuse, who can do what to them and when – but he attempts no more than to report the verdict; there’s no attempt to analyse the judgements handed down, no attempt to ground them in a given jurisprudential approach, and none at all to criticise. When you do scratch the surface, the presentation of the law is – I would say – superficial or puzzling. For example, in a passage concerning posthumous parenthood, Cantor claims that
a male decedent benefits from the posthumous use of his sperm for conception if that decedent indeed wanted to promote his biological legacy or to advance the well-being of a bonded female. (p 216)
Now, I know that some people do accept the idea of posthumous benefits; but it’s not obvious that parenthood is one of them, that there is all that much to be said for genetic bequest, and so on. A couple of pages later, he suggests that no invasion of cadaveric integrity is involved for postmortem parenthood (p 219) – which makes me wonder if he has any idea of how Diane Blood retrieved her husband’s sperm. (On the other hand, he says on p 222 that “[t]he fact that the decedent wished to someday be a parent does not, by itself, support an inference that he wanted to have sperm extracted from his fresh corpse in order to become a postmortem parent”. This is absolutely correct – I’ve been harping on about the fact that parenthood and being a genetic progenitor aren’t the same thing in this blog for a while now. Also, the same applies to eggs removed from a dead woman so that they can be fertilised by her partner and implanted in a surrogate. Her desire to be a parent doesn’t mean that she wants to be a genetic spring, either.) And he also says that he has a natural pro-procreation bent when the dead are involved:
I do not think that a cadaver’s abstract interest in not being a genetic parent… is strong.
I don’t see how this fits with the claim that the cadavers interests in being a genetic parent are strong. But whichever way you shake the tree, there’s no real argument offered.
Indeed, here, as throughout the book, a lack of argument is a serious failing; many claims are presented as faits accomplis, and “solutions” to problems are simply magicked into being. A claim that a survivor’s claim for the post-mortem use of a frozen embryo “should prevail” (p 235) isn’t explained, for example. (Why should it?) Elsewhere, Cantor introduces long lists of questions that never go anywhere in particular (cf p 291); in other places, it’s the reader who’s left asking them. Hence, when discussing the propriety of the use of human remains for archaeology, he claims that
[i]f the remains are so old that cultural values cannot be postulated, the advance of human knowledge may warrant study and display of the remains. (p 293)
But what’s the criterion by which such decisions are to be made? How could you possibly measure science against respect for the integrity of the dead? Why should cultural beliefs matter anyway? And why only may? Why not say that science does count for enough? It has to be said, too, that Cantor has a habit of leaving the game just when it’s getting interesting:
To my mind, a bodily memento is not per se so intrinsically undignified as to be categorically forbidden. [A] hospital’s decision to extract and provide a vial of blood [to a son who wanted to put it in a shrine to his deceased mother] seems right. Would I feel the same way about a preserved breast or penis? Perhaps not. Yet I am not sure what, other than a sense of good taste or decorum, differentiates a lock of hair or a vial of blood from a finger. (p 265)
To which I want to say… Come on! You almost started to scrutinise your own position: don’t stop now! But he can’t hear me. He stops.
Though he never falls completely into the bear trap of thinking that law can do the work of ethics, Cantor does come perilously close to it. His standard fallback position is to appeal to the US Constitution – particularly the Fourteenth Amendment – and there’s never really any analysis of its wisdom, applicability, and so on. This approach means that he’s fairly legally conservative. And there’s a social conservatism to go along with that: when, towards the end of the book, he talks about the acceptable use of bodies, his exposition of what makes something undignified seems to be nothing more than public condemnation – which takes us neatly back to his claim about “cadaveric rights” and the possibility that they’re just a cipher for public taste. (Although, never fear: public condemnation isn’t the be-all and end-all; the First Amendment means that some things might be at least legally OK; the Amendment covers “[e]ven nude dancing” (p 288). Fancy that!)
Once you’ve twigged that that’s what powers his claims, it’s obvious throughout the rest of the book. His criterion for acceptability is, roughly, what middle America thinks OK. Indeed, the standard by which we assess the treatment of corpses is middle-American: Cantor takes it as read at the start of the book that there will be at least some cosmetic work and embalming on pretty much all corpses, and that there will be a viewing of the corpse. Such work is presented as a part of preserving its dignity; but that’s strange. Isn’t it just as dignified not to bugger about with a body more than necessary? Maybe I’m the strange one here – but, to my mind, prodding and poking a corpse, and painting it so that gawpers can almost be tricked into thinking that it’s perfectly healthy… well, they’re not exactly dignity-enhancing. (I write this as someone who – outside of a couple of visits to Body Wolds – has seen only three dead bodies in his life. Two of them – Lenin and Mao – were embalmed. Both look like waxworks; Lenin never wanted this fate anyway. Neither has much dignity.) More prosaically: what Americans do with bodies is weird. Cantor may have benefitted from considering that possibility.
After We Die provides a perfectly decent way to while away those lank days around Christmas. It’s an intelligent and humane piece of work. I don’t know quite who represents the target market – it’s too chatty and light for a primary academic source, and I’m not sure that casual readers would want to shell out almost £20 for the hardback; but a paperback edition might well find a niche as a surprisingly non-macabre way to wile away a train journey – although I do worry slightly that this would give unsupported, controversial, and unargued claims a chance to creep up on you by stealth.