The Dead, the Law, and the Politics of the Past

Publication Date01 Dec 2004
AuthorKieron McEvoy,Heather Conway
DOIhttp://doi.org/10.1111/j.1467-6478.2004.00302.x
JOURNAL OF LAW AND SOCIETY
VOLUME 31, NUMBER 4, DECEMBER 2004
ISSN: 0263-323X, pp. 539±62
The Dead, the Law, and the Politics of the Past
Kieran McEvoy* and Heather Conway*
This article explores the role of law in cultural and political disputes
concerning dead bodies. It uses three interconnecting legal
frameworks: cultural and moral ownership, commemoration, and
closure. It begins with a critique of the limitations of the private law
notion of `ownership' in such contexts, setting out a broader notion of
cultural and moral ownership as more appropriate for analysing legal
disputes between states and indigenous tribes. It then examines how
legal discourses concerning freedom of expression, religious and
political traditions, and human rights and equality are utilized to
regulate the public memory of the dead. Finally, it looks at the
relationship between law and notions of closure in contexts where the
dead have either died in battle or have been `disappeared' during a
conflict, arguing that law in such contexts goes beyond the traditional
retributive focus of investigation and punishment of wrongdoers and
instead centres on broader concerns of societal and personal healing.
INTRODUCTION
Dead people belong to the live people who claim them most obsessively.
1
539
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350 Main Street, Malden, MA 02148, USA
*School of Law, Queen's University Belfast, 28 University Square, Belfast
BT7 1NN, Northern Ireland
This article began life at the Socio-Legal Studies Conference in Bristol 2001 and we are
grateful for the comments and lively discussion which spurred us on. Thanks also to our
colleagues, in particular Robin Hickey and Sheena Grattan. Kieran McEvoy would also like
to acknowledge Ron Keenan of the Equality Commission for Northern Ireland, Brandon
Hamber of Democratic Dialogue, Eitan Felner, former Director of B'Tselem for his help
with the Israeli aspects of this paper, and the staff of the Institute of Criminology, University
of Cambridge in particular Shadd Maruna, Allison Liebling, and Amanda Matravers for their
hospitality in the summer of 2003. Thanks also to the anonymous reviewers. Finally, a
special thanks to our respective dads, Paddy McEvoy and Joe Conway, two grave diggers
extraordinaire who sparked our shared interest in the dead in the first place.
1 James Ellroy, cited in K. Verdery, The Political Lives of Dead Bodies: Reburial and
Post-Socialist Change (1999) 23.
While the focus of this article concerns dead bodies in political and cultural
conflicts, anyone who has been involved more generally in dealing with the
death of a loved one will recognize that it is a process with at least three
interconnecti ng stages. In the imm ediate aftermat h, the living must
determine who has `ownership' or control over the disposal of the remains.
Decisions are then made concerning the commemoration of the deceased
such as the nature of any memorial service or the wording of any headstone.
In due course, as the living are faced with the emotional and psychological
consequences of death, they are encouraged to seek some form of `closure'
in coming to terms with death.
2
At each stage, and particularly if disputes
arise, law plays a crucial role. From the formal declaration of a death
certificate onwards, law's capacity to speak authoritatively to notions of
sovereignty, acknowledgement and a sense of completion regarding the fate
of the dead assumes a central role.
3
Despite the breadth of law's involvement in the process of death, it is the
notion of ownership in particular which is arguably the dominant legal
paradigm in matters concerning the dead. Death transforms the human body
from a person to an object,
4
and it is through this process of objectification
that the notion of ownership often becomes synonymous with control of the
remains.
5
Determining ownership, usually constructed relatively narrowly as
the basis for strict legal entitlements, has been viewed as the key judicial task
in, for example, deciding familial disputes concerning the dead.
6
Similarly,
the ever -burge oning la w and medi cine lit eratur e conce rning org an
transplants, un authorized autop sies, and relate d medico-legal mat ters
540
2 See, generally, G. Gorer, Death, Grief and Mourning (1965); D. Clark (ed.), The
Sociology of Death: Theory, Culture and Practice (1993); C. Seale, Constructing
Death: The Sociology of Dying and Bereavement (1998); and D. Davies, Death,
Ritual and Belief (2nd edn., 2002).
3 See, generally, H.Y. Bernard, The Law of the Death and the Disposal of Remains
(1980); D.M. Anderson, Courting Death: The Law of Mortality (1999); and A.
Bainham et al. (eds.), Body Lore and Laws (2002).
4 As Nagel has observed, once a human being has become a corpse, it may be viewed
as something like a `a piece of furniture' (T. Nagel, Mortal Questions (1979) 7).
5 While it has long been established in common law jurisdictions that there is no
property in a dead body, the courts have recognized an exception to this rule to
facilitate executors (or, i f a person dies intestate, pers onal representatives)
`claiming' a body in order to facilitate disposal ± see Williams v. Williams (1882)
20 Ch.D. 659 and Dobson v. North Tyneside Area Health Authority [1996] 4 All
E.R. 474. For an excellent critique of this rule, see P. Matthews, `Whose Body?
People as Property' [1983] Current Legal Problems 193, 197±205, 208±14.
6 For a detailed analysis of the law relating to family disputes and the dead, see H.
Conway, `Dead But Not Buried: Bodies, Burial and Family Conflict' (2003) 23
Legal Studies 423. As Conway notes (pp. 442±9), the one potential exception to the
dominance of the ownership paradigm concerning family disputes is signs of a
tentative engagement with human rights discourses concerning the right to respect
for family life under Article 8 of the European Convention and freedom of thought,
conscience, and religion provisions in Article 9.
ßBlackwell Publishing Ltd 2004

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