Subscribe
Share
Share
Embed
This podcast explores death and law from a rich variety of disciplinary perspectives, including law, anthropology and philosophy. The podcast explores such issues as buried goods, data protection, dignity and memory. It forms part of a broader project in the University of Aberdeen's School of Law entitled, 'Death and Law – Interdisciplinary Explorations' and is generally sponsored by the Aberdeen Humanities Fund Staff Research Award 2024.
Hello, everyone, and welcome to the first podcast for the death and law interdisciplinary explorations project at the University of Aberdeen. My name is Doctor Jonathan Ainslie, and I am a Lecturer in Private Law within the School of Law at the University of Aberdeen. I'm joined here by Professor Vikki Entwistle. If you'd like to introduce yourself, Vikki.
Thanks, Jonathan. Yeah. Hello, everyone. My name is Vikki. I work across both health services research and philosophy at the University of Aberdeen. I have no expertise in law, but I'm particularly interested in thinking about death, human remains, and I'm really excited about what's going on in the Death in Law project. So great to be part of an interdisciplinary endeavour.
And I'm also joined by Doctor Thomas Muinzer, if you'd like to introduce yourself, Thomas.
Yes. Hi. Glad to be here with you. I'm Doctor Thomas Muinzer. I'm a Reader in Law in the School of Law at the University of Aberdeen. So glad to be here.
Now the topic of our first podcast is the legal treatment of human remains. And in this podcast, we will be exploring both how human remains are treated as things or as property objects, but also the extent to which the rights of personhood could also extend to human remains.
And we'll be discussing this topic in four broad categories. I will begin by discussing interred human remains and the criminal offence of violation of sepulchre. After which, I will hand over to Thomas to discuss human remains which ought to have been interred but never were, particularly the case of Charles Byrne in Ireland. Following which, we shall have a discussion around the treatment of human remains in hospital or morgue settings, prior to interment. And we shall finish up by looking at the position of human remains which have been the subjects of an archaeological excavation and are now held in museum or university collections.
So we'll start off then by looking at the position of human remains which have been interred. The first question, of course, that we need to ask is whether human remains should be treated as things, as property objects, or as persons who have the rights of personhood. And on this issue, Scotland follows the classical Roman law position, which is that a living human body is not a thing. This is not a property object, meaning that a living human body cannot be the subject of private ownership. Whereas a deceased human body is a thing; is a res to give it its Latin phrase.
However, human remains which have been interred, which have been buried, are known as sepulchres and are placed into a special category of thing or res known as the res religiosae. And the res religiosae are protected from the normal operation of property law, meaning that they cannot be privately owned. This is a principle which goes all the way back to the ancient Romans, and this is meant to recognize the sacredness or the numinous quality that attaches to interred human remains. There's a very old criminal offense in Scots law, violation of sepulchres, which applies to anyone who interferes in an unauthorised manner with interred human remains. And the offence of violation of sepulchres is very unusual in that it is not an offence against the person because in law, natural personhood comes to an end on death. But it is also not an offence against property, because interred human remains fall into the special category of res religiosae and they are therefore not property objects.
Violation of sepulchres is very rarely prosecuted. The last case was in Edinburgh in 2004. Anybody who has gone walking in Greyfriars Kirkyard in Edinburgh may be familiar with the mausoleum of George Mackenzie, a well known lawyer, and well known for his persecution of the Covenanters in the seventeenth century. In 2004, two schoolboys from Edinburgh broke into George Mackenzie's mausoleum, and removed a human head, deceased human head, which they then proceeded to use as a football in Greyfriars Kirkyard. And those two schoolboys were prosecuted for the offence of violation of sepulchres at the Sheriff Court in Edinburgh. However, prior to 2004, there had not been a prosecution for violation of sepulchres for over a hundred years in Scotland, and so it's a very rarely prosecuted offence. There are no sentencing guidelines for violation of sepulchres, meaning that at least notionally, you could be sentenced for up to life imprisonment.
That is the legal position as it applies to human remains which have been buried or interred. But the law has relatively little to say about human remains in other contexts, in other settings. So it is somewhat less clear what the position is, for example, for human remains which ought to have been interred but never were. It's unclear what the position is, for human remains prior to burial and also for human remains, which have been excavated and are now held in museum collections. And so that is really the focus of the remainder of the podcast today, to look at how the law addresses human remains in these various different contexts, and perhaps how other disciplines such as philosophy might contribute to our understanding of the respectful or dignified treatment of human remains.
So at this point, I may hand over to Thomas, who I know has been involved in campaigns surrounding the remains of Charles Byrne. Charles Byrne's expressed wish in his own lifetime was that he should be buried at sea, but that wish was not respected and for many years, he was held in a museum collection and put on public display instead. So I'll hand over to Thomas if you'd like to discuss the case of Charles Byrne.
Yes. Thank you very much. And I really enjoyed that interesting introduction as well, raising some fascinating issues that I suppose may connect to certain aspects of the Charles Byrne case itself.
Probably best to begin by telling his story, which brings the law to life when we think about it in relation to this this case study, if you like. Charles was born in 1761 in what was then Ireland, what today we would recognise as Northern Ireland, which of course today is part of the UK. He was born in the on the border between Derry/Londonderry and Tyrone for those who may know the geographic terrain of Northern Ireland. So rural Northern Ireland near a town called Cookstown today. And he, by all accounts, seemed to be a relatively conventional young chap until he started to get towards adolescence then in the adolescence where he began to shoot up to this prodigious height and he developed into a giant.
Today, we would understand that as him having a condition called gigantism, acromegalic gigantism, where which is typically rooted in a slight malfunction with the pituitary gland, which sits at the base of the brain, and that gland plays a role in regulating growth hormone. So if you have this particular malfunction, you can shoot up to a tremendous height, and Charles did. Now, of course, they didn't have the scientific knowledge we have today back then. So it was observed Charles was becoming very tall and almost this kind of folkloric resonance surrounded him and he was seen as a real life giant, almost a slightly folkloric living character. And there was a stately home in the area back then called Spring Hill House. It was a sort of Downton Abbey type set up with butlers and, you know, distinguished folk. And the stately home invited Charles up for the odd meal to regale guests and to dazzle with his height and his wit. And Charles became kind of renowned and a big hit in the area. And I think it must have struck on him particularly in relation to the Spring Hill House experience that he could possibly make some coin off of his great stature. He could head off in search of fame and fortune and perhaps exhibit himself as a human curiosity and make some money here and have adventures at the same time.
So he and a friend called Jo Vance leave Northern Ireland when Charles is in his late teens. They arrive in Scotland for this period of adventure and, hopefully, of money making. They spend some time in Edinburgh. Charles is exhibiting himself in a cafe on Princes Street where you would pay a couple of quid to sit with the real life giant and have experiences with him. And he gradually works his way down Great Britain. And by the time he's 21, he's ended up in London. So remember, he was born in 1761, so we're thinking of about 1782 now. He's set up in London, he's a celebrity, he's a big hit, the newspapers are reporting on him and his fascinating human curiosity and you'd pay some money to go and spend time with Charles and, you know, his cash register metaphorically was ringing, things were good. But behind the scenes, if you like, Charles did have a medical condition and he will have been having difficulty with acromegalic gigantism, probably a lot of joint and muscle pain. His immune system would be weaker. It was known that he was fond of a drink and it's thought that this was perhaps partly to self medicate with his condition.
Anyhow, he's at Number 12 Cockspur Street where he lives, 1782. He heads out for a few pints to a pub called the Black Horse in the Charing Cross area of London, and he has had his money compressed into a series of banknotes. Obviously, we don't have the old convenient hole in the wall bank machine back then. So he's got his money compressed into these notes. And tragically, he's pickpocketed. The old account suggests about £700 was pickpocketed from him, which, you know, that's not small change now. But back in those days, it's absolute fortune, especially for someone from Charles' background. And he goes into this depression, retreats to his rooms, and two months later, he's dead. So the theft occurs in April, and he passes away June 1. This is 1783. And Charles was a celebrity as we say. So the surgical establishment have their eye on Charles as he's dying. This has been reported in the papers and so forth. And the preeminent surgeon of the time, one John Hunter, this incredible, incredibly gifted, Scottish surgeon who was living in London, was very desirous of getting a hold of Burns' corpse to dissect it and study it.
And Charles was aware that he and others were keen to procure the corpse. So he said to his pals, look, weigh me down and bury me at sea. And, you know, we can logically see that if you have a sea burial, you weighted down, people aren't going to get a hold of your remains. As we probably know back then, we had this kind of seedy subculture of the resurrectionists where body snatchers, gravediggers could quite easily dig up a corpse and sell it on a black market to the surgical community. So this prevented against that. Charles Pals did take him to Margate on the English coast - it's reported in the old newspapers - and apparently buried him. However, when his pals stopped over for a rest on the way to Margate One night, a crooked undertaker in the pay of John Hunter was able to switch this body for dead weight surreptitiously. Next day, funeral takes place, but Charles remains aren't in the coffin. He's actually transported to Holborn in London, Hubertley in a hay cart where John Hunter lives. And Hunter receives the corpse.
As we say, you know, Byrne's a celebrity so there could be a big stink kicked up about this. Hunter discreetly reduces the corpse to its skeleton and packs it away for four years. And four years later then, he reveals this interesting specimen in his specimen collection. As an anatomist, he had a very interesting specimen collection. This is his centrepiece, this tall man, and this was the skeleton of Charles Byrne. And so long story short in terms of the present time, when Hunter died, a memorial museum was established in his name, the Hunterian Museum. We're thinking of the museum in London here. There is one in in Scotland as well. We're thinking of the London Hunterian Museum, which is currently in the Royal College of Surgeons.
That museum houses his specimens, which are held on trust by the Royal College of Surgeons. And the centrepiece of that that collection had been the remains of Charles Byrne until very recently where some public pressure compelled the trustees to withdraw the remains. So it's a very rich story and it also opens up some interesting legal issues that we may want to discuss if you both would like.
Absolutely. It's in many ways a tragic story, the story of Charles Byrne. In Scotland, we would say that all persons have a right of sepulchre, which means they have a right to be buried in accordance with the wishes that they have specified in life. And the broad equivalent to that in England and Wales would be, the right to burial, which in the case of Charles Byrne was clearly not observed. I'm aware that a few years ago, Mary Louth, a researcher at King's College, published an article suggesting that, if a possessory action were brought against the Hunterian Museum, which holds Charles Byrne's skeleton by someone who wished to bury him at sea as he had originally intended to be, that action would succeed, and they would be able to bury him at sea. I wonder what your perspective on that would be, Thomas. Do you think that a possessory action brought against the Hunterian Museum would be likely to be successful, and who indeed would bring it?
That's a really interesting question. Just to touch on the work of Mary Louth first, I should say Mary is a friend of mine. I'm very fond of her, and she's produced some great work there. Her work there proceeded on a good scientific basis where you take work that is done and you try and refute it scientifically. Now, in this case, I have studied in print the legality of the retention of Byrne's remains in A Grave Situation and some other papers. I also tend to tack these puns onto my papers that Mary is too sensible to tack on! But in A Grave Situation, my paper, I concluded that I didn't really see a credible legal avenue to compel the trustees to divest themselves with the remains and for a burial to be undertaken. Now, Mary, who's my friend, came along and suggested basically, there may be an angle where, you know, that action could be compelled. So she's developed my work and I was delighted to see that. She's suggesting that maybe my conclusion is incorrect and, it would be wonderful if Mary was correct. I think her paper's fabulous and she makes a good case. I'm still not entirely persuaded that there's a credible avenue there.
In terms of who would compel the claim, usually, you know, a museum, typically in law, certainly in England and Wales (and Northern Ireland follows this), it has a legitimate possessory claim to remains. The understanding is - and Paul Matthews sketches this out in a great paper called Whose Body?, a legal study - that possessory claim to, let's say, Byrne's remains, holds good unless somebody with a more robust possessory claim can come along and trump that in law. So the claim holds good unless someone can come along and trump it. So the parties that would typically trump a claim like that, we'd be really looking for personal representatives of Byrne. Now especially if he died recently, the case could be quite clear cut. It might be that a grandson would come along and attempt to activate his burial wishes and compel the release, and you could see how a court might consider that party as having a more robust possessory claim. I don't think we can kind of rely on that, in Byrne's case. For starters, we don't have a line of blood relatives that has descended. I noticed Mary doesn't lean on these arguments because I think she would agree. They're probably not going to be particularly helpful. So we don't have that bloodline.
Even if we did, there's been such a lapse of time. You know yourself, Jonathan, we have a culture of statutes of limitations and so on and so forth. These old claims, you struggle to activate a claim like that when we're looking back several hundred years. Even with blood relations, I think one might struggle in law when one would have a moral case. Another interesting strand of consideration is we do have some genetic relations of Byrne. I won't maybe go too far down the road of the genetics because it's a little complicated. But basically, in simple terms, some researchers who have taken DNA from one of Byrne's teeth have found that Byrne and people from four families that are living today share an AIPG mutation, a genetic mutation that indicates they and Byrne shared a common genetic ancestor. So the common ancestor genetically. Now again, the law doesn't typically admit those sorts of relationships to sort of compel the type of action we're talking about. And in this case, certainly, the genetic ancestor lived at the earliest time about four centuries ago, but the scientists say may have been as far back as 3,750 years. So you and I could be more related to Byrne perhaps than some of these people potentially, who knows. So, you know, I think that kind of strand of argument, I don't see how it could be compelled.
But I think Mary has some interesting ideas about how someone acting in the public interest, which is a different approach, might potentially invoke the right to burial that you mentioned. You'll be entitled to burial itself, which has been thwarted, and make a credible case. And I think it'd be wonderful if Mary was correct. I'm not entirely sure, though.
I think that's really interesting, and it tallies with what I know of the Scots law on the right of sepulchre as well. In that in Scotland, the right of sepulchre would ordinarily be exercised by a relative of the deceased, by a close blood relative within the years immediately following the person passing away. And it's much less clear in Scotland how far a more distant relation or indeed a person acting in the public interest would be able to enforce the right of sepulchre where it has not been properly observed. But to the best of my knowledge, no such action testing these issues has ever been raised either in Scotland or in the rest of the United Kingdom. I should have said earlier, the leading expert on the right of sepulchre and the criminal offence of violation of sepulchre in Scotland is Doctor Jonathan Brown at the University of Strathclyde. And he has a fascinating article on sepulchres in the Edinburgh Law Review, which we will include in the expanded package of resources that will be associated with this podcast if anybody wants to look further into the Scottish side of these issues.
So we've discussed so far, human remains which have been interred and have therefore become sepulchres, which have a certain level of protection in law. And we've also discussed the slightly more ambiguous position of human remains which ought to have been buried, but where the right of sepulchre has not been observed. And it is now not entirely clear to what extent that wrong can be corrected. I think we can move on now to discuss the next context of human remains that we'll be covering in this podcast, which is the abuse or mistreatment of remains prior to burial in clinical or funereal settings. And we'll cover this in three parts. We'll look at the extent to which private law actions can be brought for the mistreatment of human remains, we shall look at the extent to which there is protection in the criminal law, and then we shall discuss the issue of public regulation of funeral homes and similar establishments.
Now in private law, there have been a number of cases in Scotland and also in England involving the disrespectful treatment of human remains, either within the morgue setting or during a post mortem. One case in particular in Scotland, which I think is worthwhile to discuss is Stevens against the Yorkhill NHS Trust. This was a case in which the brain of a deceased infant was removed during a postmortem by the Yorkhill NHS Trust, by staff working within the NHS Trust at Yorkhill without the authorisation of the child's mother and without her being informed in advance that this was going to take place. And the mother then brought an action against the Yorkhill NHS Trust seeking a private law remedy, initially on the basis of what she claimed was a doctor patient relationship between herself and the staff who had carried out the postmortem. Now she wasn't initially able to succeed on that basis because she couldn't establish that she was in any sense the patient of staff working within the Yorkhill Trust at the time the postmortem was carried out. However, the temporary judge in that case did award her solatium, which is a special remedy in Scotland for emotional injury, for pain and suffering as opposed to financial or economic loss. And that solatium was granted to her on the basis that she had suffered an iniuria. Now this is language which is very rarely heard in Scotland. It goes back to the idea of an actio iniuriarum, which is an ancient Roman law action, which has been preserved in a number of European jurisdictions and in South Africa.
It's always been very unclear to what extent the actio iniuriarum continues to be actionable in Scotland. It is the ancestor of our law of defamation, and it is also the ancestor of our law of civil assault as opposed to criminal assault. The actio iniuriarum in Roman law protects your physical integrity or your corpus. It protects your reputation or your fame, and it also protects your personal dignity and honour, or your dignitas. And in this particular instance, it was held that the dignity of the mother had been subject to an iniuria, as a consequence of the manner in which her child's remains had been handled during the post mortem by the NHS Trust at Yorkhill, and therefore, she was entitled to a remedy for emotional injury, a remedy in solatium.
It was a creative result in Stevens against the Yorkhill NHS Trust because it wasn't immediately clear when the child's mother brought the action that she would have any standing at all. And I suppose the interesting question for me is to what extent, if there was an iniuria, was it committed against the mother? And to what extent was it committed against the memory or the personality of her child whose remains had been mistreated. We don't really have in private law in Scotland the conceptual framework to recognise rights of personhood for someone who is deceased. So the temporary judge in this case wasn't able to say in a direct way that an iniuria had been committed against the deceased infant, But he was able to achieve this indirectly by making an award of solatium to the parents of the child. So it's a way of achieving a just result in circumstances where the conceptual framework of the law wouldn't normally allow an action. So I find the use of iniuria and the idea of the actio iniuriarum quite interesting in this case. I'm not aware of any other cases in which private law would be able to extend to protect human remains prior to interment.
But we know that there are some criminal protections, and Vikki and I were discussing this earlier today. (Yep). There are a number of offences around sexual abuse of corpses, and we were discussing the case of David Fuller in England who has been convicted of a number of offences in that regard. There has been consideration given to creating a new offence in England of desecration of a corpse which should cover a wider range of abusive behaviours directed towards human remains. The government thus far appears to have been somewhat reluctant to take that forward. But there have been measures to increase the sentencing guidelines for the offences which do exist. And there have been a number of developments in Scotland on the public regulation of funeral homes. I don't know if you want to speak to that, Vikki.
I can have a go at, saying a little bit about it. Yeah. I mean, as I said at the beginning, I'm not a legal expert but interested particularly in the conceptual, I suppose, discrepancies in the relationship between persons and bodies. And I think this discussion so far has been absolutely fascinating in highlighting where law tends to not accommodate some of the ambiguities that I think we live with in day to day life about the relationship between persons and bodies. But certainly, on funeral regulation, Scotland recently seems to be leading the way, in terms of introducing regulation for a sector, that has been treated completely, well, as an independent sector, funeral provision. It's conducted by organisations mostly which operate as businesses. Both small independent businesses and increasingly large corporate chains are involved in funeral directing provision, but there are also other groups, particularly religious societies which provide burial services and support care of the dead body in advance of interment with ritual washing and shrouding, which is done on a noncommercial basis. And I think the role of those is also worth consideration. The regulation in 2016, and forgive me I can't remember the exact name of the of the Act, but provisions were put in place in Scottish law as I understand it that laid the foundation for Parliament to establish a Code of Practice for funeral directors which was to be developed in consultation, has been developed in consultation with, the funeral direction sector, and other relevant stakeholders. And a draft of the Code has been considered and approved by Parliament and has now been published. It is open to review periodically, but it does set standards that apply to all funeral directors in Scotland going forward and there will be statutory inspections to ensure those standards are met. The standards don't differ really from those that have been in operation on a voluntary basis among funeral directors. There are several professional organisations that funeral directing practices can opt into and agree to abide by the professional standards of.
And the underlying principles that fall into those professional codes of practice - there are various aspects of them, some of which to do with transparency of business to ensure costing, for example, is clear to potential clients, those who are purchasing funerals, what they're going to be paying for - but, I think of particular interest today is the concept of the dignity of the person which remains in the body of the person who's died. So when they're taken into care of a funeral director - and I think that word is used with care - that although we're talking about abusive situations and the situations when it goes wrong, I think fortunately they're very rare. Most of the funeral directors certainly that I've met and spoken to are extremely caring respectful people and are very concerned to treat the people who they take into their care in advance of their burial or cremation with respect and dignity. But this concept, so the idea that funeral directors should at heart - one of the core principles that they should teach that they should treat the dead body with respect and dignity at all times is something that we can all agree to. It sounds very good in principle, what it actually means in practice, and when it is breached, I think become more open questions. And there are, of course, cultural differences in terms of what people consider appropriate as treatment of a dead body. How it should be washed, by whom it should be washed, whether someone should be dressed in ordinary clothes or wrapped in standard linen shrouds. There's lots of variation on a theme there.
But the the idea, sorry I've wandered a bit off piste, but I think a commitment in principle reflecting the commitments of many professional providers already, the Scottish Government, with this funeral director Code of Practice has codified expectations that all funeral directors should be ensuring that their facilities are appropriate, their staff are well trained and that procedures are followed to ensure that the bodies of people who've recently died, and are going to be buried or cremated, perhaps with some delay, are nonetheless on the way handled with care, respect, dignity.
And I can give the title of the legislation in Scotland, which is the Burial and Cremation (Scotland) Act 2016. That is an Act of the Scottish Parliament, which as Vikki was saying authorises the creation of a statutory code of practice for funeral directors. This is in contrast to the current position in England and Wales where the Michael Report found that short of criminal behaviour, behaviour which falls into one of the recognised categories of criminal offending, there is no public body that can intervene to prevent the mistreatment or disrespectful treatment of human remains. And, the Michael Report made reference to the funeral sector being an unregulated free for all. Although as Vikki was saying, in practice, the vast majority of funeral directors, puts a great deal of care into the work that they undertake. It is the minority of rogue actors which public regulation is seeking to address. And there are consultations ongoing in England and Wales to look to what extent, further public regulation could be introduced in the funeral sector, and they are looking, I understand, to Scotland as a guiding light for those reforms.
So we've covered the various ways in which human remains might be protected prior to their interment or disposal. The limited extent to which private law will intervene against mistreatment of human remains, the criminal offences which exist, and the discussion around whether those offences could be broadened or whether the sentences could be increased. And also the difference that now exists between Scotland and the rest of the United Kingdom in terms of the public regulation to ensure standards in funeral homes. And one of the themes really which is emerging I think through all of these discussions is the extent to which death problematises this boundary between the person and property, between persons and things. On one level the corpse of Charles Byrne is a property object, but it also embodies the memory of him as a person, and the law appears to struggle to recognise that in correcting the wrong which was committed against him. The law on sepulchres relies to a large extent on taking human remains outside the ordinary operation of property law. And the funeral statutory code of practice in Scotland uses language like care and dignity, which at least to a lawyer we would ordinarily associate with personhood. We say that a person has dignity. But this is continuing in some sense after death. At least it appears to be recognised to continue in some sense by the new statutory code of practice which has been introduced.
I think what we shall come to now is the context of human remains which have been interred, which have been buried in the ground, but which have been excavated, by archaeologists and are now held in museum or university collections. And to the best of my knowledge, there is really no legal regulation on how these remains ought to be treated beyond the fact that they are property objects. They lose their status as sepulchres provided that they have been excavated in an authorised manner. But I know, Vikki, that you teach on this issue as well. If someone has been excavated after hundreds or thousands of years, to what extent is it possible to say that, they can be harmed in the way that they are stored or displayed or treated by curators?
Yes. And I think this is a really interesting situation in which the long dead have obviously lost some of the identity association that we were concerned about in the Yorkhill case, and in the case of people who've recently died. We can see perhaps some association between body and person even if the person has legally died and, we accept that they can no longer feel or see anything. They're not sensate in their bodies. But nonetheless in that period immediately when someone has died, there is a sense that there's a bit of ambiguity certainly for the people who are close to them, for people who've recently been bereaved, and for those who are working with them including many, very caring, very respectful, pathologists who might be conducting postmortems as well as the funeral directors who we've already mentioned. There seems to be some experienced ambiguity as to what extent the person is still there in the body. So the corpse, for want of a better word, and I know some people don't like the word, but the dead body, the body of someone who has just died both seems to be not and at the same time also to be the person who has just died. The separation doesn't come readily in in in the way we usually think, talk, experience things. For the long dead, the notion the sense of identity, identifiability, especially if we're dealing with bones is much less clear. But nonetheless there is this question, a question that philosophers have grappled with for many many years of can we harm the dead? So rather than can we harm a relative of the dead or can we harm some kind of memory or even reputation of the dead, does it make any sense at all to say that we can extend that in a way that things done after a person has died can nonetheless harm the person who has died.
And one way of making an argument for this and I'll only just try and sketch it out is that recognising that harms aren't limited to the kind of things that we can experience, for example as pain or something like that. So philosophers will also often include in the category of harms things that set back someone's interests, some things that set back their projects that they're passionate about or interests that they might have in, well it might include in living on, but in various things, in being respected for example. And setbacks to interest can occur in a number of different ways. Changes can occur in a number of different ways. And if we make a distinction between two particular kinds of change, the kind of change that is more or less inherent to something, a material change to something. So an example that is sometimes used, Socrates dies, that's a change. It's a change to Socrates. It's a standard kind of change that as with anyone's death, we would see there's a change between life and death. We can also think of another kind of change, Socrates had a wife. Socrates' wife, when Socrates dies, becomes a widow. It's a change of status. Nothing's changed in her body, but something significant has changed to her.
And this kind of change is often called a Cambridge relational change. I'll just say relational change because I think it's a bit simpler and a bit more descriptive. And relational changes can happen not just to the living but also to people who've died. And the kind of examples that get used here are often around, say, the reputation of a famous person can be changed for the worse after their death if either true or false information is spread about them. Or the status of someone as the longest living or the best or something like that, can change when someone outperforms them. And that change we can say has happened to the person. It's - the event that caused it to happen happened after their death, but it affects them in a not so time bound kind of way. Yeah. So these kind of changes can happen, can set back people's interests. They're things that if a person held, before they died, strong interests in something happening or not happening, when it's the kind of thing that can then be contravened, gone against after they've died, then these kind of changes can happen and can set back their interests.
So the idea is then that there is a sense in which, if an archaeologist digs up the skeleton or the mummified remains of someone who had no anticipation that they would be dug up but also perhaps had some expectation and interest, their community had some interest in them or they as a community had an interest in remaining interred in sacred grounds for example, then if the archaeologist digs them up, not that the bones or the mummified remains can feel any pain or be aware of what is going on, but there is a sense in which the person whose, skeleton, bones, mummified remains they were, the body, the body of whom they were, is nonetheless changed as a result. So if - let's call them Iron Age Ivor - if their mummified remains are plucked out of the ground, becomes a person whose bodily remains no longer lie resting where they thought they were. And this isn't just applicable to archaeology. We could think about it in relation to the Charles Byrne case. We could think about it, use this kind of, sketch of an argument in relation to, the abuses that that have occurred to more recently dead people.
Absolutely. I have a couple of reflections on that. One of the issues that we're really interested in within the Death and Law project is this question of the individuation of the dead and the extent to which that dissipates over time. And the law recognises this to some extent as well. We were discussing earlier that the right of sepulchre can generally only be enforced by a close relative of the deceased. Or to put that in another way, it can only be enforced for people for whom there is still a very high level of individuation. There are people who are alive, who remember them, who know them, who are prepared to bring actions to protect their interests. And then as time goes on, that individuation starts to dissipate. The people that you knew in life themselves pass away. Eventually your name might be forgotten. And then in the fullness of time, the entire community or culture in which you lived your life, passes on as well. And it's interesting the extent to which some individuals lose their identity very quickly and others do not. Charles Byrne, of course, is an example of a person whose personal identity remains with us several centuries after his death. Another striking example would be Richard the Third (Yep.) Whose remains were discovered, in England a few years ago and identified as being him. And the organisation which funded the discovery of those remains, the Ricardians, had a vested interest in finding those physical remains because they believed that the archaeological study of those remains would vindicate certain aspects of Richard the Third's life and reign, because he was portrayed by Shakespeare as a hunchback and Shakespeare used that physical deformity to suggest an internal moral corruption in his portrayal of Richard the Third. The Ricardians wanted to examine his remains to bring a more scientific perspective to any medical conditions that he might have suffered. And so that's a very high level of individuation which has been retained many centuries after someone has died. Whereas other people lose much of their identity within only a few years or decades of passing away. And the extent to which that affects the way that we think about the dead on a day to day basis and the kind of moral significance that we attach to them, I think that's a very interesting (Yes) issue. But I know that our own university collection in the University of Aberdeen has to grapple with these issues as well. I was speaking to Neil Curtis, our Head of Collections, a few days ago, and one of the debates going on within Scottish university and museum collections at the moment is whether human remains should be stored separately from their grave goods or not. There's a school of thought among curators that there should be a special place in the university collection for human remains to recognise the kind of sacredness which attaches to them. But there is a competing school of thought that if you were buried with grave goods, then you presumably intended in life that you should remain close to them in death, and therefore, perhaps these things should be kept together as so far as possible. If you've disrupted the gravesite, then you should minimise the harms associated with that disruption by keeping everything in a coherent, sort of unified place. Yes?
I'm thinking it's also very interesting to think why and when we attach a special significance to human remains, and what's the significance of animal remains. And also if we're saying that respect needs to be paid, careful attention needs to be given to how we treat human remains, if they're buried or cremated then they become very quickly or more or less quickly, unrecognisable both as the individual but also as human eventually. And there will be schools of thought ways of thinking that say actually the most respectful thing you could do to my body is allow it to disintegrate and become part of a broader cycle of life. And I think we perhaps haven't paid enough attention in a lot of our both philosophical and perhaps legal thinking to the different perspectives that can be placed, different values that are placed on human life, human bodies as contrasted with other things and what does it mean to treat with respect and can we apply some of these or should we be applying some of these ideas of care and respect not just to human remains but to these grave goods, items of heritage, but also aspects of environment?
Absolutely. And it's interesting that you say that because I believe that one of the chapters in our edited volume and possibly one of the other podcasts in this series will be looking at the issue of non anthropocentric death and the extent to which the law under scrutinises death in environmental contexts and so forth. So you are perhaps giving us a taste of then of some of the issues that we'll be exploring later on in the series. Do you have any, final thoughts, Thomas, on some of the issues that we've been discussing?
It's been a really interesting discussion and really enjoyed your comments Vikki. I have a few thoughts, but I suppose I would point out probably just a general point. In my view, two hard legal problems facing law in this area are one that you touched on, Jonathan, what precisely is the relationship between a person and personal rights and property and proprietary rights, which for all sorts of technical reasons poses hard problems at the moment. And secondly - I mean, some of the things that the Law Commission are looking at, you could point to - but at the sort of meta level, we don't at least last time I checked, we don't have a statutory definition of death. In law, when we talk about death, we don't have a precise definition or legal understanding. What we normally do, we as in the courts anyway, when they want to point to an interpretation a clear interpretation of what death means, they tend to look at the medical codes of practice and guidelines. From my perspective as a lawyer, because they can shift a little and they're maybe designed with different purposes in mind, I think we could go a bit farther probably as lawyers and consider whether or not we can nail down a legalistic definition. So there are a couple of, I suppose, what at least I probably see as hard problems facing law that are that are solvable, but they're interesting, and important. Just briefly, I suppose to tie in some of the things you're both saying to the Byrne case. I - just listening to you both - I almost feel like with the Byrne case, we sort of start as a Vikki, as a philosopher in a way, where we look, at what happened to Charles Byrne, the procurement of the corpse and so forth, and we tend to think, oh, that's awful. That's not nice. We kinda react negatively to it, typically. At least I do. I think you guys do and most people I know do. And we feel that there's been a wrong here and it's a bit, unpleasant, maybe a moral upsetting. When we shift to think as lawyers and ask what the law has to say about that, it can actually be less clear cut than almost our moral instinct. If we look at what Hunter actually did wrong from a lawyerly perspective to Byrne, well, the first thing we might notice, you know, with a moral reaction is this chap had burial wishes and the wishes were thwarted. That's wrong. But in law, actually, we didn't then and we don't yet now, although the Law Commission's looking at this in strand three of its current inquiry, we don't accord legal way to the wishes of the deceased. This is in England and Wales, we remember. So there hasn't been some kind of legal breach there overtly. Then we might think, well, he stole or caused the remains of Byrne to be stolen. He stole the remains or caused them to be stolen. But at that time, law was following, you know, Edward Coke and that strand of doctrine, a corpse is nullius, it's in the legal ownership of nobody. It wasn't property under that current framework and that legal perspective at that time. We steal property, but we don't commit theft to something that's not property. So it seems he didn't steal, quote, unquote, the corpse either. So if we're not going down a theft avenue or thwarting of the burial instructions, we're kind of left a little bit like Vikki and I and yourselves as philosophers thinking this this sort of feels wrong. But when we look at what the law has to say about it, it's a little harder perhaps to find in the legal toolkit what the legal wrongs are. Although there are some that I think we could point to. I won't go into them now. But do you know what I mean? There's a sort of interesting conjunction between our, at least in my case, being a sort of amateur individual philosopher and then the lawyer in me. There's a there are two kind of strands that try to marry up and it can be actually tricky to let them harmonise naturally in a way, you know?
I think that's definitely true. And one of the themes that we'll be returning to repeatedly over the course of this series is the limitations of legal reasoning and the extent to which the conceptual framework that we have in the law doesn't necessarily map on to our moral intuitions about what should be taking place, to protect the rights of the dead, and to protect the integrity of human remains. Certainly, one issue that we will be exploring in the edited volume is whether there should be some kind of statutory protection for the wishes of the deceased as regards to the disposal of their remains and whether that should be enforceable by a broader class of persons than the immediate relatives of the deceased. Whether it should be possible, for example, for a third party, a charity or an individual to bring an action enforcing the wishes expressed in life of a person who has died. That is one of the more obvious areas where perhaps legal reform could be considered. But I think we are now drawing to a close. We've had a very interesting discussion around the various contexts in which human remains can be mistreated or treated in an undignified manner. And we shall be returning to some of these general themes around the problematic boundary between persons and things in the future. So thank you very much everyone for your contributions.
Thank you, Jonathan.
Thank you.