What is Owed: The Case for Reparations
Jack Burling Nebe, Honors Thesis
I. Introduction
The history of Namibia, a small country in south-western Africa, is largely a history of injustice. Its history as a German colony, its history as South Africa’s League of Nations mandate and its recent independence struggle is replete with episodes of injustice. A particularly stark example is the Herero/Nama Genocide of 1904-1907. When faced with an anti-colonial uprising, Germany Schutztruppe massacred Namibia’s Herero and Nama tribes in a campaign of racial extermination, expropriating their lands for German settler use in the process. On January 5th 2017, more than a century later, descendants of the Herero and Nama filed suit in the United States seeking reparations from the German government. Putting aside, for the moment, procedural reservations about jurisdiction and standing, we are left with an urgent question. What, if anything, is owed to those now living for wrongs committed in the distant past?
Reparation is a undoubtedly a thorny issue. While it seems fairly straightforward to say that historical injustices should be condemned, it is entirely
Waldron’s Superseding Historic Injustice
In general, we tend to think that if something is wrongfully taken, it should be given back. Suppose someone stole my car yesterday. We think that the car should be returned to me as quickly as possible. Furthermore, we might think that when the criminal is caught, I not only entitled to have my car back but also that I am entitled to some compensation, provided it is proportional, for the hardships I incurred by virtue of not being able to use my car. Let us think of these two examples of being loose principles of rectification, where the attempt is to rectify a past injustice. In ‘IV: Circumstances and Supersession’ of his important work Superseding Historic Injustice, Jeremy Waldron argues that, under certain circumstances, past injustices need not be redressed. Central to Waldron’s claim is the idea that changing circumstances must have an effect on the moral legitimacy of ownership rights.
At first blush, this seems like a fairly uncontroversial idea. Consider certain procedural difficulties: how, for example, could one attempt to redress a historical injustice if the entity to whom the injustice had been committed has ceased to exist? Or, even more difficult, what if it is unclear that the initial wrong committed is continuing into the present? These are not the sorts of circumstantial change Waldron is interested in. Waldron wants to make a larger, more controversial claim.
Consider the following example of original acquisition. A person performs an acquisitive act A1 in circumstances C1 that make it legitimate. Let this be Ezekiel, a young herder, acquiring a watering hole. By doing this, Ezekiel establishes a title for himself and his successors. This title endures through time. As time goes by, conditions change. A new set of conditions, let them be C2,, now hold. However, under C2,, an equivalent act of appropriation (A2) would be illegitimate. Imagine, for instance, that all of the surrounding watering holes dry up, leaving Ezekiel’s the only one with water. One can think of these changes in circumstance as a change from ‘conditions of plenty’ to ‘conditions of scarcity’. Under this new set of conditions, where conditions of scarcity hold, it seems as though Ezekiel would be unjustified in performing an equivalent acquisitive act. If Ezekiel appropriated a watering hole under C2 it would seem unjust.
This example is meant to demonstrate the circumstantial sensitivity of ownership rights. The shift from C1 to C2 represents a tipping point so far as the justification of the entitlement is concerned. This makes sense – an acquisition that might be appropriate in a plentiful environment with a small population may be quite inappropriate in the same environment with a large population, or with the same population once natural resources have become depleted. John Locke, in what has become known as the ‘Lockean Proviso’, captured this idea more than three centuries ago:
“He that leaves as much as another can make use of, does as good as take nothing at all. No Body could think himself injur’d by the drinking of another Man, though he took a good Draught, who had a whole River of the same Water left him to quench his thirst.”
Let us return to the original example, involving Ezekiel’s acquisitive act A1 under C1 and a hypothetical acquisitive act A2 under C2. Even though A1 and A2, considered in themselves, are the same type of act, the conditions of their moral legitimacy are different. What is to be considered a just acquisition is dependent, to some degree, on the very circumstances of that acquisition. One and the same type of action may be an injustice in one set of circumstances and not an injustice in another.
Now consider a somewhat different scenario. Imagine that, under conditions of plenty C1, a powerful tribe, motivated purely by greed, comes along and demands a right to use Ezekiel’s watering hole for the indefinite future. This is clearly an injustice. As time passes though, conditions change to C2 and conditions of desperate scarcity now hold. All of the watering holes, bar Ezekiel’s, have dried up. Ezekiel and the members of the tribe are already sharing the watering hole on the basis of their earlier incursion. Should we, with these new conditions holding, consider it necessary to rectify the injustice committed originally? Waldron doesn’t think so. Waldron believes that since circumstances have changed, the tribe has a legitimate claim to the use of the watering hole.
This may seem counter-intuitive. But does it not follow from the previous argument? If circumstances make a difference to what counts as a ‘just’ acquisition, then it seems as though they must also make a difference to what counts as an unjust incursion. And if they make a difference to that, then, in principle, we must concede that a change in circumstances can affect whether a particular continuation of adverse possession remains an injustice or not. Although the members of the tribe acted unjustly when they first appropriated Ezekiel’s property, they do not act unjustly now when they share his property, given that circumstances have changed. In Waldron’s words, the injustice has been superseded.
Objection to Waldron’s Supersession
[TO BE COMPLETED]
This section hinges on what I take to be Waldron’s conflation of restitution and reparation. While Waldron makes a compelling case for why restitution may no longer be possible or morally mandatory, this does not entail that reparation is not possible and morally mandatory. Restitution, in this case the return of a stolen item to its rightful owner, is often a part of making reparation to the victim of the theft, but it seems that it is neither necessary or sufficient for such reparation to be ‘successful’.
Consider the following. It is not sufficient, for example, if I steal your car and then return it to you. Although I have made a measure of restitution, I have not made an adequate reparation since the damage/harm you suffered as a result of my theft may be more than the loss of the car, and the mere restitution of your property may not erase the damages you suffered as a result of my theft. Restitution is also not a necessary condition of reparation because while the loss or destruction of a stolen item may make its restitution impossible, it does not make the reparation for the loss of the item impossible or unnecessary. I can still make reparation by providing you the money to buy another. If restitution is impossible, it does not follow that reparation should be considered optional.
Following this line of argument and making the dangerous transition to the real world, it is probably the case that justice cannot demand that, for instance, German descendants leave Namibia and return their land to the Herero and Nama. But it does not follow from this that justice not demand that the German State, for instance, make reparation to the Herero and Nama for violating their rights and injuring them when that land still belonged to the Herero and Nama.
Changes in circumstance may indicate that the Herero and Nama have lost their rights to restitution, but it does not entail that they have lost their rights to reparations. Those rights can surely not be said to have been superseded.
Parfit’s Existential Objection to theories of rectification: The Non-Identity Problem
Another important, prima facie, objection to a principle of rectification that endorses reparations could draw on arguments made by Derek Parfit in Reasons and Persons. While Parfit does not make explicit arguments about reparative justice, or justice of any kind, his writings on identity have interesting implications in the work I am interested in.
What follows is the general idea. If it is the aim of rectification to restore victims to the condition they would have enjoyed in the absence of the injustice, a theory cannot sanctions rights to rectification for persons conceived after the injustice occurs. For insofar as the injustice certainly changed the conditions under which the children of victims were later conceived, those children are different persons than the ones who would have been born in the absence of the wrong done to their parents. There is then no condition that actual children would have been in had injustices prior to their conceptions not occurred; nor is there any sense in which they can claim that them would have been better off in the possible world without the injustices.
Objection to the Non-Identity Problem
[TO BE COMPLETED]
I shall argue in this section that reparations involving collective entities do not fall prey to the non-identity problem because the persistence conditions of collective entities are different to those of individuals.
Demarcating the Grounds for Legitimacy of Reparation Claims
When talking about justice and the distribution of rights, philosophers often make a distinction between historical arguments of property rights and end-state arguments for rights or justice.
Historical arguments maintain that whether or nota holding or set of holdings is just (that is, whether or not we are entitled to or have a moral right to out holdings) depends on the moral character of the history that produced the holdings. In order to know who has a right to what, we need to first see how holdings actually came about. Philosophers concerned primarily with property rights, but not exclusively, are usually interested in these arguments. .
End-state arguments maintain that the justice of holdings (and our rights to them) depends not on how they came about, but rather on the moral character of the structure (or pattern) of the set of holding of which they are a part. Thus, in order to morally evaluate holdings under this framework, we need only a ‘current time slice’. End-state arguments of justice hold that the justice of a distribution is determined by how things are distributed – i.e. who has what – as judged by some structural principle of just distribution. For example, a utilitarian who judges between two distributions by evaluating which has the greater sum of utility. Philosophers concerned with distributive justice, and with principles of distribution, are often interested in these arguments.
As Nozick said in Anarchy, State, and Utopia, it seems as though end-state arguments fail to capture the ‘whole story’ about rights and justice. To quote Nozick:
“Most people…think it relevant in assessing the justice of a situation to consider not only the distribution it embodies, but also how that distribution came about.”
Whether or not I have a right, or am entitled, to the laptop on which I type this section seems to depend, at least to some extent, on the whether I bought it or received it as a gift or stole it from some unsuspecting student at university. It seems, then, fair to say that any theory of rights needs to be, at some level, a historical theory.
However, it is also important to mention that an exclusively historical theory, of the type that Nozick ultimately embraces, also does not seem to capture the ‘whole story’ about rights and justice either. Regardless of how the distribution came about, the majority of us think that a distribution could not possible be just where one group of people owned virtually everything, while virtually everyone else owned nothing and were wholly dependent on the propertied for their survival.
So, upon consideration, we might think that historical considerations only begin to become relevant to rights or justice after a structure of broadly equal holdings and opportunities has been established in the first place.
At this point, you may be asking, what any of this has to be with reparations. However, as I hope is starting to become clear, I am of the belief that talk of reparations can only be taken seriously under a historical rights framework. If our considerations about the justice and rights, and more particularly property rights, are grounded primarily in a historical theory, then we start to pave the way for talk about what to do about historical injustices. Those who pay primary credence to end-state are inclined to see historical injustice claims as redundant – addressed, and at any rate or superseded by the dictates of prospective distributive justice.
In Defense of Counterfactual Reasoning about Reparations
I would like to jump into the very heart of the issue here and talk about the biggest problem facing any historical theory of entitlements: how does one address injustice.
As Jeremy Waldron says in his Superseding Historic Injustice, the intuition is to “make it now as though the injustice had not happened”. Under a historical theory, the most natural way to do this is via counterfactual reasoning about how things would have been had the injustice not occurred. But, the problem is that counterfactual reasoning of this manner is replete with difficulty. [I look at these difficulties in detail elsewhere]. I will now attempt a sketch at how to overcome some of those difficulties.
Before I begin, I’d like to make a couple of general points. Firstly, I think it’s easy to be a little too skeptical about the possibility of making reliable counterfactual judgements. While it is obviously a controversial issue, it is also clear that we very regularly make counterfactual judgements, with a fairly high degree of confidence. Not only do we do them with regularity, but we also seem to hold them to be centrally relevant to to determinations about praise/blame and moral and legal liability. For example, doe the purposes of assigning blame and liability we tend to assume a normal, unsurprising course of background events. It is also true that for most of the time, the complexity of individual choice and background conditions make some claims fairly complicated, and thereby force our uses of counterfactuals to be essentially conservative in nature. This conservatism seems like a fair compromise. It is for these reasons that we can assign, with a fair certainty, moral blame in tort cases for instance.
Other Considerations/ To be developed:
Sets of circumstances
How do we know if circumstances have changed significantly enough to warrant a change in entitlement
Who decides if they’ve changed sufficiently enough
2) First-order questions
Is the current entity the same entity as that which perpetrated the injustice?
Is the current entity the same as that to whom the injustice was committed?
Does the wrong continue to persist into the present?
Is it the same wrong as the one committed?
Is the perpetrator continuing to benefit from the wrong incurred?