The Philosophy of Law: Private Right, § 35: The Continuing Right of a Good Name after Death
It would be absurd to think that a dead Person could possess anything after his death, when he no longer exists in the eye of the Law, if the matter in question were a mere Thing. But a good Name is a congenital and external, although merely ideal possession, which attaches inseparably to the individual as a Person. Now we can and must abstract here from all consideration as to whether the Persons cease to be after death or still continue as such to exist; because in considering their juridical relation to others, we regard Persons merely according to their humanity and as rational Beings (homo noumenon). Hence any attempt to bring the Pteputa-tion or good Name of a Person into evil and false repute after death, is always questionable, even although a well-founded charge may be allowed—for to that extent the brocard ‘De mortuis nil nisi bene’ is wrong. Yet to spread charges against one who is absent and cannot defend himself, shows at least a want of magnanimity.
By a blameless life and a death that worthily ends it, it is admitted that a man may acquire a (negatively) good reputation constituting something that is his own, even when he no longer exists in the world of sense as a visible Person (homo phenomenon’). It is further held that his Survivors and Successors—whether relatives or strangers—are entitled to defend his good Name as a matter of Right, on the ground that unproved accusations subject them all to the danger of similar treatment after death. Now that a Man when dead can yet acquire such a Right is a peculiar and, nevertheless, an undeniable manifestation in fact, of the ft priori law-giving reason thus extending its Law of Command or Prohibition beyond the limits of the present life. If some one then spreads a charge regarding a dead person that would have dishonoured him when living, or even made him despicable, any one who can adduce a proof that this accusation is intentionally false and untrue, may publicly declare him who thus brings the dead person into ill repute to be a Calumniator, and affix dishonour to him in turn. This would not be allowable unless it were legitimate to assume that the dead person was injured by the accusation, although he is dead, and that a certain just satisfaction was done to him by an Apology, although he no longer sensibly exists. A Title to act the part of the Vindicator of the dead person does not require to be established; for every one necessarily claims this of himself, not merely as a Duty of Virtue regarded ethically, but as a Right belonging to him in virtue of his Humanity. Nor does the Vindicator require to show any special personal damage, accruing to him as a friend or relative, from a stain on the character of the Deceased, to justify him in proceeding to censure it. That such a form of ideal Acquisition, and even a Right in an individual after death against survivors, is thus actually founded, cannot, therefore, be disputed, although the possibility of such a Right is not capable of logical Deduction.
There is no ground for drawing visionary inferences from what has just been stated, to the presentiment of a future life and invisible relations to departed souls. For the considerations connected with this Right, turn on nothing more than the purely moral and juridical Relation which subsists among men even in the present life, as Rational Beings. Abstraction is, how ever, made from all that belongs physically to their existence in Space and Time; that is, men are considered logically apart from these physical concomitants of their nature, not as to their state when actually deprived of them, but only in so far as being spirits they are in a condition that might realize the injury done them by Calumniators. Any one who may falsely say something against me a hundred years hence, injures me even now. For in the pure juridical Relation, which is entirely rational and suprasensible, abstraction is made from the physical conditions of Time, and the Calumniator is as culpable as if he had committed the offence in my lifetime; only this will not be tried by a Criminal Process, but he will only be punished with that loss of honour he would have caused to another, and this is inflicted upon him by Public Opinion according to the Lex talionis. Even a Plagiarism from a dead Author, although it does not tarnish the honour of the Deceased, but only deprives him of a part of his property, is yet properly regarded as a lesion of his human Ei«ht.