Defining Death: Law, Language, and Systems

Abstract

The definition of death is often referred to as a fiction since brain death was conceived in the mid twentieth century. These observations are generally paired with concern that the fiction depresses the quality of a patient’s consent to post-mortem tissue donation. However, such accounts are theoretically bereft. The author argues that a systems-theoretic account can better explain how fiction contributes to donative practices. He understands fiction as a legal speech act that misrepresents the intentions behind its expressed message. The misrepresentation may induce social behaviour (e.g., consent) consistent with its unstated intentions. In the context of death, these intentions emerge from a system of biopolitics disproportionately concerned with preserving the life of the populace. Determining death early on the continuum of dying may avail more viable tissue and free therapeutic resources to those in need. The operation of fiction will be explored and critiqued from within this socio-legal frame.