Table Of ContentInheritance and the Right
to Bequeath
In every Western democracy today, inheritances have a very profound influence
on people’s lives. This motivates renewed scholarship on inheritance law by
philosophy and the legal sciences. The present volume aims to contribute to
some ongoing areas of inquiry while also filling some gaps in research.
It is organized in a highly interdisciplinary way. In the thirteen chapters of
the book, written by outstanding philosophers and legal scholars, the following
questions, among others, are discussed: What is the nature of the right to
bequeath? What are the social functions of bequest and inheritance? What
arguments concerning justice have philosophers and legal scholars advanced in
favour or against practices of bequest and inheritance? How should we think
about taxing the wealth transfers that occur in bequest and inheritance? In
discussing these questions, the authors break new ground and offer much-
needed insight into several related domains, such as the philosophy of law; legal
theory; general and applied ethics; social and political philosophy; theories of
justice; and the history of legal, political, and economic thought.
This book will be of great interest to scholars in these areas as well as
policy-makers.
Hans-Christoph Schmidt am Busch is Professor of Philosophy at the
University of Braunschweig, Germany.
Daniel Halliday is Associate Professor in Political Philosophy at the University
of Melbourne, Australia.
Thomas Gutmann is Professor of Civil Law and Philosophy of Law at the
Faculties of Law and of Philosophy and Co-Director of the Research Institute
for Philosophy of Law at the University of Münster, Germany.
Part of the LAW AND POLITICS: CONTINENTAL
PERSPECTIVES series
series editors
Mariano Croce
Sapienza University of Rome, Italy
Marco Goldoni
University of Glasgow, UK
for information about the series and details of previous and forthcoming titles,
see https://www.routledge.com/law/series/LPCP
A GlassHouse book
Inheritance and the Right
to Bequeath
Legal and Philosophical Perspectives
Edited by Hans-Christoph Schmidt
am Busch, Daniel Halliday and
Thomas Gutmann
First published 2023
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am Busch, Daniel Halliday and Thomas Gutmann; individual
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British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British
Library
Library of Congress Cataloging-in-Publication Data
Names: Schmidt am Busch, Hans-Christoph, editor. |
Halliday, Daniel, 1981– editor. | Gutmann, Thomas, editor.
Title: Inheritance and the right to bequeath : legal and
philosophical perspectives / edited by Hans-Christoph Schmidt
am Busch, Daniel Halliday, and Thomas Gutmann.
Description: Abingdon, Oxon [UK] ; New York, NY : Routledge, 2022. |
Series: Law and politics: continental perspectives | Includes bibliographical
references and index.
Identifiers: LCCN 2022012260 (print) | LCCN 2022012261 (ebook) |
ISBN 9780367760298 (hardback) | ISBN 9781032331577 (paperback) |
ISBN 9781003318477 (ebook)
Subjects: LCSH: Inheritance and succession. | Legacies. |
Distribution of decedents’ estates. | Wills. | Inheritance and
transfer tax—Law and legislation. | Estate planning. | Law
(Philosophical concept)
Classification: LCC K811.L4 I54 2022 (print) | LCC K811.L4
(ebook) | DDC 346.05/4—dc23/eng/20220630
LC record available at https://lccn.loc.gov/2022012260
LC ebook record available at https://lccn.loc.gov/2022012261
ISBN: 978-0-367-76029-8 (hbk)
ISBN: 978-1-032-33157-7 (pbk)
ISBN: 978-1-003-31847-7 (ebk)
DOI: 10.4324/9781003318477
Typeset in Bembo
by Apex CoVantage, LLC
Contents
1 Introduction 1
THOMAS GUTMANN, DANIEL HALLIDAY, AND HANS-CHRISTOPH
SCHMIDT AM BUSCH
2 What, if anything, is wrong with bequest?
A preliminary sketch 15
STEFAN GOSEPATH
3 The morality of charitable bequests 36
MIRANDA PERRY FLEISCHER
4 Is the right to bequeath a supernatural power? 57
HILLEL STEINER
5 The right to bequeath as a common legal power 76
CONSTANTIN LUFT AND THOMAS GUTMANN
6 Property rights and the power to transfer 95
DANIEL HALLIDAY
7 The double function of inheritance: Rethinking
conditional bequests 111
SHELLY KREICZER-LEVY
8 Remembrance, esteem, and the right to bequeath 128
HANS-CHRISTOPH SCHMIDT AM BUSCH
9 Inheritance law and the challenge of securing care
in old age: A three-pronged solution 144
DAPHNA HACKER
vi Contents
10 Natural right or convention? Fichte on the status
of the right to bequeath property and the right
to inherit property 166
DAVID JAMES
11 Property in the tension between family and civil
society: Inheritance according to G. W. F. Hegel
and Eduard Gans 181
CHRISTOPHER YEOMANS
12 Inheritance tax, justice and family businesses 198
CHRISTIAN NEUHÄUSER
13 Taxing wealth and wealth transfers in the 21st century 215
JENNIFER BIRD-POLLAN
List of contributors 233
Index 237
Chapter 1
Introduction
Thomas Gutmann, Daniel Halliday, and
Hans-Christoph Schmidt am Busch
1 Inherited wealth: the legal-philosophical
landscape
This collection brings together a variety of legal and philosophical scholars. Each
aims to make progress with various aspects of the problem posed by inherited
wealth. The challenge of theorizing about inheritance and bequest is one where
the perspectives of political philosophy and law are especially complementary.
Let us begin, though, by noting some of the motivations for a collection of this
sort, which run somewhat deeper than the fact that there is a long-recognized
overlap between work in legal theory and in political philosophy.
One motivation is straightforwardly scholarly. Although it is fair to say that
while the theoretical study of inheritance and bequest has benefitted from an
increased level of scholarly interest in the last decade or so, there remain a num-
ber of under-theorized aspects of this topic and plenty of scope for work to
be done. At the same time, some long-standing questions are due for a revisit,
and some historical figures deserve to be paid renewed attention. Here we
might briefly note the wide variety of questions that might benefit from fur-
ther examination. For instance, how should we conceptualize acts of bequest?
Is bequeathing much like other forms of gift-giving (as many philosophers and
legal scholars believe)? Or does the post-mortem character of the wealth trans-
fer make it something unique, to which different considerations must apply?
Moreover, do we have good reason to defend the institutions of bequest and
inheritance at all?1 Or should these institutions instead be abolished entirely –
as a growing number of thinkers suggest? If bequest and inheritance can be
shown to be justified, what degree of restriction on them might justly remain,
and are there important distinctions to be drawn between different categories
of asset? Who should be entitled to inherit? Only persons and institutions
1 Today we see five functions of succession law that should concern lawmakers when addressing the inter-
generational transfer of wealth: to increase economic productivity, to effect a just distribution of wealth,
to avoid economic distortion, to strengthen (or weaken) family ties, and to protect economic units, in
particular, small to medium privately owned (family) businesses and agriculture (see Dutta 2014).
DOI: 10.4324/9781003318477-1
2 Thomas Gutmann et al.
named in last wills? Or do family relationships also engender claims to por-
tions of inherited wealth (a point of view defended by Hegel, which continues
to be influential in German-speaking countries)? If so, how should so-called
patchwork families be treated by law? And how should we deal with charitable
bequests and bequests of enterprises? Each of the chapters gathered in this col-
lection sheds new light on at least one of these issues.
Another more practical motivation for this book is that the current political
and economic climate may be such that the actual regulation of inherited wealth
could soon receive more attention from lawmakers. The impact of the COVID
pandemic, though still uncertain, has heightened concern about concentrations
of wealth. It is fair to say, though, that such concerns already had momentum
prior to 2020. They owe much of their force to worries about a general slow-
down or stagnation in economic growth and the opportunities available to
those seeking to access wealth through education and skilled work. For decades,
historically accumulated wealth, not least the value of homes acquired in the
mid- to late 20th century by the “baby boomer” cohort, has grown more rap-
idly than wages earned by later cohorts. Under such conditions, an individual’s
prospects may depend more on whether he or she will inherit wealth than
whether he or she works hard in the labour market.2 In every Western democ-
racy today – contrasting somewhat with the decades after the Second World
War – inheritance has a very profound influence on people’s lives. The home
we are able to afford, the neighbours we have, the schools and universities our
children attend, the social life we live, the political offices we can apply for – all
this increasingly depends not just on our own labour market performance but
on whether we or our parents are inheritors. A common worry is that inherit-
ance is an important contributor to growing inequality, which is socially cor-
rosive in many ways (see e.g. Wilkinson/Pickett 2009). Setting aside debates
about inequality’s corrosiveness, it is important to recognize that whether and
how inheritance contributes to material inequality is a more complex and sub-
tle matter than sometimes supposed. Theoretical work needs to be wary of
this, particularly when advancing normative claims about the relation between
inheritance and distributive justice.3 Nonetheless, one effect of the pandemic
might be to create a political environment in which relatively significant tax
2 This hypothesis is associated with Piketty 2014 and is renewed in Piketty 2020. For more on the
relationship between economic stagnation and inheritance in the UK, see for example the recent
report from the Institute for Fiscal Studies (Bourquin et al. 2021).
3 One problem is that inheritance often goes to members of later birth cohorts who are doing better
with respect to earnings from labour anyway. This means that inheritance can increase the range or
dispersion of wealth inequality while reducing other measures of inequality, such as the Gini coef-
ficient. At the same time, the impact on inequality can be distinguished from the impact on mobility,
understood as the prospects for people to change their position in the distribution of wealth. It is
possible for inheritance to reduce mobility, by tying the wealth of members of one cohort to that
of their parents in an earlier cohort, without necessarily increasing inequality within the recipient
cohort. Again see Bourquin et al. 2021, and for some discussion of other countries, see Elinder et al.
Introduction 3
reform becomes more feasible, at least temporarily, than it would otherwise
have been. The tendency for governments to tax a mixture of income and
consumption and to leave inheritance largely alone may seem especially ques-
tionable given trends towards wage stagnation among the young.4 On the other
hand, in our aging societies facing cutbacks in welfare state programmes, there
may be a shift towards inheritance as an enabler of a comfortable retirement and
secure care in old age.5 This privatized solution, however, creates problems of
inequality within the older generation.6 Suffice it to say that the work of this
collection gains further motivation from these trends.
Particularly in the second half of the 20th century, theoretical discussions
about the right to bequeath and the limits to inherited wealth have been rela-
tively scarce. This contrasts with the 18th, 19th, and early 20th centuries, when
the question of how to regulate the bequest of property was a source of great
controversy. From a socio-historical perspective on the “the longue durée of
inheritance law” (Beckert 2007), that is on discourses on inheritance law and
legal developments in France, Germany, and the United States since the revo-
lutions of the late 18th century, what we can see today is “a backlash in key
areas of inheritance law which breaks the Enlightenment’s promise to distrib-
ute wealth in society based on individual achievement”, forcing us to pose the
question whether “we are still modern” in this regard.7 Historical debates on
inheritance focused not only on the principles of an achievement-oriented
society, on equal opportunity and other aspects of distributive justice, but also
on further problems posed by inherited wealth, among them the prevention of
concentrations of wealth and power detrimental to democracy.8 While thinkers
such as Fichte linked the justification of the right to bequeath to the estab-
lishment of property rights acquired through labour, Hegel and Gans, among
many others, maintained that the relationship between family values and the
freedom of testation was crucial when it came to thinking about bequest and
inheritance.9 Interestingly, from Bentham to Fourier and the Saint-Simonians,
the question was raised whether a more or less unfettered right to bequeath,
while serving as a means to protect privately owned economic units, actually
leads to an inefficient distribution of economic resources at a societal level
(Erreygers 1997) – a question which today’s prolific Economic Analysis of Law,
albeit based on the normative premise that legal rules ought to be efficient in
2018; Halliday 2020 offers some further remarks on why such complexities matter for normative
analyses of inheritance and inequality.
4 For more on inequality between cohorts and discussion of implications for tax reform, see Halliday
(forthcoming).
5 See Hacker, in this volume.
6 See Alstott 2017 and Wolff 2020.
7 Beckert 2013; see also Beckert 2008.
8 Cf. Erreygers 1997; Beckert 2007, 2008; Halliday 2018, esp. ch. 2, 3, and 7.
9 See Klippel 1984; Beckert 2008; Alstott 2009; and Dutta 2014.
