Defining Death Behind the Veil of Ignorance

In this article I examine the question of how a liberal state should go about defining death. Plausible standards for a definition of death include a somatic one based on circulatory criteria, death by neurologic criteria (DNC), and higher brain death. I will argue that Rawlsian "burdens of judgment" apply in this process: that is, reasonable disagreement should be expected on important topics, and such disagreement ought not be resolved via the coercive powers of the state. Nevertheless, the state must legislate a definition of death, and in doing so faces a "neutralist dilemma," that is, when there are multiple reasonable ways to move forward, only one can be chosen. I will examine a possible way to exit this neutralist dilemma. Finally, I will argue for DNC as the normatively preferred default definition of death. To do this, I will employ the Rawlsian heuristic of the "original position" and offer public reasons in favor of using DNC as the preferred default definition of death.