The choice-based right to bequeath
1. Franz Kafka, in his will, asked his friend Max Brod to burn all his unpublished manuscripts and not to run reprints of those already published. Max Brod decided to ignore Kafka's wishes, and subsequently edited and published most of his works, including his two major novels, The Trial and The Castle. Most of us would be inclined to agree with Brod's decision. And yet, we usually think that we should honour people's last wishes. In law, we confer on individuals the right to affect what happens once they are dead, and in particular the right to bequeath their property. Moreover, many would argue that such a legal right is grounded in a moral right. Obviously, we may wish to impose restrictions on the ways in which they exercise that right so as to ensure, for example, that they do not disinherit their children. But most people see nothing incoherent in the idea that, to some extent, they should have the power to decide who shall own their property after their death. The foregoing point presupposes an understanding of rights which does not preclude, from the outset, the possibility that the dead might have rights. On the so-called interest theory of rights, as set out by J. Raz, I have a right if an interest of mine is important enough to hold some other person(s) under some duty (Raz 1988: 166). If one admits the existence of posthumous interests, that is, of interests one has in the posthumous occurrence of some event, the interest theory allows for the possibility that the dead might have rights. The interest theory's main rival is the choice-based theory of rights, of which H. L. A. Hart is the most famous proponent (Hart 1955). On that conception, it is a necessary condition for someone to have a right that they can choose to demand or to waive the performance of the corresponding duty. Thus, for me to have a right against you not to be tortured, it is necessary that I can choose to demand that you do not torture me or to allow you to torture me. It is often said that, on the choicebased theory of rights, the dead cannot have rights (and that is usually thought to be one of its fundamental weaknesses). As it is, it is not immediately obvious that the choice-based theory precludes the conferral of rights to the dead, and indeed, arguments as to why it does are rather thin on the grounds. In this short paper, I aim to take some steps towards providing such an argument, by examining the most often cited of the rights we confer on the dead, to wit, the right to bequeath one's wealth. The most sophisticated case in support of the claim that on the choice-based theory of rights there