The Afterlife, The Common Law and Justice Peter Jackson

I am fascinated by the judgment of Peter Jackson J in Re JS (Disposal of Body) [2016] EWHC 2859 (Fam) from a completely different perspective from what most commenters have written on the subject: the perspective of the idea of an afterlife. And the point here is not whether the reader believes in the afterlife or thinks it is utter nonsense but that this decision is unprecedented and ground-breaking because the judge has unwittingly brought the common law and jurisprudence into the realm of the afterlife. The Court has over the years had to confront issues of life and death usually in the context of withdrawal of life support disputes and lately in cases of assisted suicide – euthanasia. I suggest that this case went beyond those issues.

To recap the sad facts of the case briefly, JS was a 14-year-old girl with terminal cancer. During her palliative care, she discovered ‘cryonics’ through searches on the Internet, a practice that the court described as ‘…the freezing of a dead body in the hope that resuscitation and a cure may be possible in the distant future.’ (para 6) JS concluded that she had a chance of another life after this life through this process. Her mother supported her desire but her estranged father initially did not, which dispute led to this case.

The question of the afterlife

The question of the afterlife has previously mainly being in the domain of religion, philosophy and the paranormal. At the heart of this question is what happens to human consciousness after death? Some researchers have also conducted enquiry into near death experience and related phenomena with inconclusive results. Significantly,  the study of consciousness and the potential that consciousness could survive the body or be preserved in some form or the other after death  have engaged some scientists in recent years. For instance, there is some evidence that suggests that properties of the mind (e.g. memories) could survive after cryopreservation  (New Scientist, Vol 3 Issue 5, 2016). This has led to certain hypothesis being put forward which include the idea of quantum consciousness, quantum decoherence, quantum information, parallel universe, aspects of epigenetics etc. One could thus see cryonics in this context as an attempt to restore consciousness to a medically certified dead body. The scientific research on the subject at the moment appears to be largely guesswork and extrapolations into the unknown, but major scientist would acknowledge the role guesswork and extrapolations play in scientific discoveries. As noted in the New Scientist (Vol 3 Issue 5, 2016) studies of this type have made successful inroads in areas such as fertility therapy, organ transplantation, and emergency medicine but not on the scale proposed by cryonics. However, a significant amount of private research funding is going into the area.

Whether it is religion, philosophy and lately science on the subject of what happens after mortal death, the subtext to all of this is: Hope. The problem with hope is that it is indeterminate. It may be rationale, irrational, logical, illogical, awkward, realistic, unrealistic, foolish etc. However, it is always there.  Poignantly, there is a strong support, even within the scientific community, for the contention that the human brain may be hardwired to hope. Interestingly, it is the same brain that is currently widely believed in the science community to give rise to consciousness.

In the case at hand, the relevance of the subtext of hope was succinctly put by Julia Frith in a letter she wrote to the Guardian where she reflected on some of the negative commentaries in the media on the quest of JS for the chance of an afterlife (22/11/16). She wrote as follows:

‘I feel everyone is ignoring the fact that a young woman looked into her future and saw the denial of everything she was promised. She was denied boyfriends, university, a job, marriage, children, life… and she was not ready to give up on those promises. She didn’t want to die. None of us does. I’m grateful that the judge had the good sense to realise this was not about whether cryonics worked, but her own hopes for the future. Reading some pieces lately it seems that while we’ll arrange bungee-jumping days out for the terminally ill, how one disposes of one’s own corpse is a step too far in giving the dying what they’re asking for.’ (emphasis mine)

Judge Jackson acknowledged this view point in Paragraph 31 of the judgment where he emphasised the human biological and natural right to think:

‘Nor is this case about whether JS’s wishes are sensible or not. We are all entitled to our feelings and beliefs about our own life and death, and none of us has the right to tell anyone else – least of all a young person in JS’s position – what they must think.’

However, what was more important was what the court could do about JS’s hope or ‘wishes’  (whether rational or irrational). And this is where the Court reached an interesting conclusion in paragraph 32:

‘All this case is about is providing a means by which the uncertainty about what can happen during JS’s lifetime and after her death can be resolved so far as possible. JS cannot expect automatic acceptance of her wishes, but she is entitled to know whether or not they can be acted upon by those who will be responsible for her estate after her death. It would be unacceptable in principle for the law to withhold its answer until after she had died. Also, as a matter of practicality, argument about the preservation issue cannot be delayed until after death as the process has to be started immediately if it is to happen at all.’

The consequence of the above conclusion is that whether that hope for the chance of an afterlife is kept alive or extinguished (which the court could do by rendering the matter non-justiciable) becomes a matter of law. The court held unequivocally that JS was entitled to know whether her wish will be carried out and stated emphatically that it will be unacceptable for the law to withhold its position on this matter until after JS’s death. It is therefore, in my opinion, reasonable to conclude that what the Court is considering here is whether to facilitate this hope, this wish, this possibility of an afterlife. The Court has therefore unwittingly entered the domain of the afterlife discourse.

This point is more interesting because the case affirmed the common law position that the dead body is not a property that could be disposed by will (William v William) and the consequence that JS ordinarily could not dictate the treatment of her body under the common law. While the consequence of what JS was asking for was effectively the treatment of her body after death, the court sidesteped the common law position by suggesting that all that it was doing was to resolve who had the responsibility for making arrangement for the disposal of the body after death. Technically, this is correct but it is clear from the facts that Court’s determination of that technical point will also determine the fate of the hope or wish or the possibility of afterlife for JS through cryonics.

It is notable that the Court was also willing to explore the possibility of making an order to take effect after death and proceeded from the need for expediency because ‘[I]n this case, there is no time for litigation after death’. (para 55) Again, underscoring the Court willingness to facilitate JS’s wish. In concluding that it had the power to make an order in this case, the court contended that the order will not be a hypothetical decision (which courts are generally not allowed to make) but an actual problem which resolution will play out in the future. The Judge therefore held that it had the power to make an order with prospective effect. The Court may have proceeded on the assumption that it was making an order as to the ‘funeral arrangement’ as was the case in the New Zealand decision cited by the Court –  Re JSB (A Child) [2010] 2 NZLR 236 (HC). However, it is quite apparent to the Court that JS’s case was not a normal funeral arrangement but the possibility of carrying out JS’s wish for the chance, however illogical, for an afterlife.

It is commendable that Judge Jackson took time out to visit JS. His statement that he was ‘moved by the valiant way in which she was facing her predicament’ is telling. One could only imagine how JS would have felt on her way out had Judge Jackson ruled against her wish. His statement that JS departed this world with hope in the face of tragedy, in my opinion, is enough justification for this unique decision. No matter how illogical that hope is. And to make that possible, Judge Jackson took the common law into the realm of the afterlife and make the best of it.