The law and the dead: Time for a re-evaluation?

9  The law and the dead

Time for a re-evaluation?

Dying is something we, as a species, do a lot, even if we keep evolving better ways to keep from doing so.¹

In any contemporary society, what constitutes ‘appropriate’ treatment of the dead is governed by basic legal standards. The Law and the Dead has focused on bodily disposal in England and Wales, as well as the related areas of exhumation, commemoration, and the posthumous use of donated bodily material. These are sensitive and increasingly contentious topics, which raise a host of policy issues – not just here, but in other common law jurisdictions with similar legal (and socio-cultural) backgrounds. And while a substantive body of law currently exists in England and Wales around each of these subject-areas, there are obvious defects and deficiencies that highlight the need for reform.

Because the core principles are scattered across a range of sources, the existing framework suffers from a lack of cohesion and clarity. Take the basic burial laws, many of which still date back to nineteenth-century statutes (when a raft of Burial Acts were passed in response to growing urbanisation and public health²), some of which are still in force today despite being repealed in part or having only residual relevance. Matters are further ‘complicated’ by different laws around churchyard and cemetery burial, and the influence of ecclesiastical law on the former³ – a distinction that also results in very different exhumation requirements for interments in consecrated and unconsecrated land.⁴ Meanwhile, cremation laws are fewer in number but are still a curious mix of old and new; parts of the Cremation Act 1902 still apply, with supplementary directives found in the Cremation Act 1952 and the Cremation (England and Wales) Regulations 2008.⁵ Even before disposal takes place (and as part of the process itself), corpses attract a range of criminal law offences.⁶ Developed on a seemingly ad hoc basis over the centuries, some are statutory in origin though most are common law misdemeanours devised by courts to penalise mistreatment of the dead. The result is a definitionally awkward patchwork of offences sustained by antiquated case law, and repeatedly revived to deal with modern exigencies – giving rise to all sorts of interpretative problems.

Similar issues arise in the civil law context. Faced with questions about the legal status of human remains and who has decision-making entitlements over the dead, courts have struggled with the consequences of the centuries-old ‘no property’ rule.⁷ The fact that funeral instructions are not legally binding and are vulnerable to defeat by surviving relatives is one example, despite suggestions in recent cases that such preferences should not be overlooked.⁸ Another example is the influence of succession law rules on who controls the deceased’s funeral arrangements, though courts in this jurisdiction (and elsewhere) are increasingly willing to deviate from fixed rankings of entitlement and award custody of the deceased’s remains to someone else with a more ‘meritorious’ claim.⁹ There is also a sense in which the law’s response to these and other issues does not always match our own intuitions about what rights exist over the dead and who can exercise them. For example, there is a widespread assumption that our bodies belong to us, but they do not (at least, not in any strict property law sense); many people assume that their funeral instructions are legally binding when this is not the case; in funeral disputes, the fact that the executor has the final say if the deceased died testate is not generally well known; and personal beliefs about who constitutes the deceased’s family do not always match legal realities when it comes to deciding funeral arrangements and other death-related issues.