Filozofska istraživanja, Vol. 42 No. 2, 2022.
Original scientific paper
https://doi.org/10.21464/fi42205
Dead Persons as Legal Rights Holders
Ivana Tucak
orcid.org/0000-0001-9694-2315
; Sveučilište Josipa Jurja Strossmayera u Osijeku, Pravni fakultet, Stjepana Radića 13, HR–31000 Osijek
Tomislav Nedić
orcid.org/0000-0003-4344-8465
; Sveučilište Josipa Jurja Strossmayera u Osijeku, Pravni fakultet, Stjepana Radića 13, HR–31000 Osijek / Sveučilište Josipa Jurja Strossmayera u Osijeku, Centar za integrativnu bioetiku, Trg Svetog Trojstva 3, HR–31000 Osijek
Abstract
One of the fundamental questions of legal philosophy and theory is what it means to have a legal right, i.e. who can be considered a legal right holder. With the parallel development of bioethical doctrine, this question about rights holders is becoming increasingly relevant, raising the question of whether rights holders can be animals, trees, foetuses, future generations or machines (artificial intelligence). This question also applies to the dead, where the difficult question of the end of life and the final occurrence of death also arises. By critically elaborating the positions of contemporary legal theorists in the context of two key theories of rights, the Will Theory and the Interest Theory and their mutual differences, the paper attempts to offer an account of the dead as potential right holders. In this context, the above legal theory elaboration is reflectively considered in the context of civil law doctrine of legal rights, as one of the fundamental areas within the general part of civil law. The legal subjectivity of the deceased is also observed in the field of (post-mortem protection) personality rights, but also in a pragmatic way in relation to recent domestic case law practice, as well as the case law practice of the European Court of Human Rights, where interesting legal issues have arisen that imply the question of the deceased as legal right holders.
Keywords
dead person; legal rights; death; Interest Theory; Will Theory; piety; rights of personality
Hrčak ID:
284997
URI
Publication date:
5.9.2022.
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