Compensating for impoverishing injustices of the distant past

Abstract

Calls for compensation are heard in many countries all over the world. Spokespersons on behalf of formerly oppressed and dominated groups call for compensation for the deeply traumatic injustices their members have suffered in the past. Sometimes these injustices were suffered decades ago by members already deceased. How valid are such claims to compensation and should they be honoured as a matter of justice? The focus of this essay is on these issues of compensatory justice. I want to look at the issue from the perspective of the eradication of systematic poverty affecting particular groups—where injustices of the distant past can reliably be identified as one of the major contributory factors to people's current poverty. In the paper I will examine the following issues: (1) What kind of injustices qualify to be remedied by means of compensatory justice? (2) Should there be a limit to how far back in history one should go to compensate for injustice? (3) How can an injustice from the distant past be reliably identified as a cause of current problems? (4) Who should be compensated? (5) Who is responsible for compensation? (6) What form should compensation take? (7) Is the concept of compensatory justice backward looking or forward looking? I will argue for a moral obligation to the effect that serious injustices, perpetrated long ago against a group of people and caused them to be poor, ought to be compensated by society in a variety of ways to the original victims (if still alive) and their descendants.

Notes

1. Taylor (1972–73, p. 179) talks about the obligation for ‘some form of compensation or reparation’ that must be made to restore ‘the balance of justice when an injustice has been committed to a group of persons’.

2. Wilson (1983, p. 523) refers to the fact that a perpetrator of injustice does not only gain a particular advantage, but such a person ‘has adopted an unjust superior position’ and ‘infringed the rights or status of his (her) fellows as equal negotiators and deal-makers’.

3. Wilson (1983, p. 523) spells out the significance of repentance and apology in the metaphoric language of material compensation. He says repentance and apology restore equality, as the ‘repentant person acknowledges the innocent's rights and the innocent thus gets his (her) own back’.

4. Amdur (1979, p. 241) articulates something of this aspect when he refers to the need that African-Americans should be compensated for the ‘humiliation inflicted by segregation’. Waldron (1992, p. 7) suggests that ‘a symbolic gesture may be as important to people as any material compensation.’

5. Wilson (1983, p. 522) articulates both the simplicity and the complexity of this issue. The simplicity of the issue is the idea that ‘when another takes away what is rightfully and desirably mine, he ought to give it back’. The complexity of compensation between groups is that it is ‘not always easy to see what sort of, or how much, compensation A should give to B if A cannot restore the original situation’.

6. Waldron (1992, p. 15) refers to widespread beliefs that deny compensation for injustices committed long ago. He refers to the belief that ‘after several generations have passed, certain wrongs are simply not worth correcting’. A further belief he refers to is that some rights ‘are capable of “fading” in their moral importance by virtue of the passage of time and by the sheer persistence of what was originally a wrongful infringement’. However valid these beliefs might be, they do not affect my position which argues for compensation for major injustices with effects and consequences which persist through time, often as a result of being reinforced and maintained.

7. Paul (1991, p. 103) thinks that ‘some rights violations lapse with time and, therefore, are uncompensable’.

8. See Barnett's claim (1991, p. 313) that we need objective criteria to ‘distinguish … compensable from noncompensable injuries’.

9. O'Neill (1987, p. 80) refers to ‘gross violations of human rights’ and injustices that would count as ‘crimes against humanity.’ Nagel (1978, p. 361) identifies a group to whom compensation is owed as one ‘whose social position is exceptionally depressed, with destructive consequences both for the self-esteem of members of the group and for the health and cohesion of the society’. Wade (1978, p. 459) judges compensable injustices as inhuman situations where victims have been ‘depressed and degraded by years of injustice’.

10. See Robert Nozick's theory of justice as entitlement, especially the part of rectificatory justice (Nozick, 1974, pp. 150–3).

11. Jaggar (1977) shows the links between these smaller injustices when she says that overt job discrimination ‘could hardly occur except in a social context where such discrimination was widely considered to be acceptable and where it could appear to be justified because of the existence of a universal covert discrimination’.

12. Waldron (1992, p. 5) points out that great injustice has a well-known characteristic, ‘that those who suffer it go to their deaths with the conviction that these things must not be forgotten’.

13. Note what Boxill (1978, p. 249) says on this point: ‘For if they have overcome their injuries, they have borne the costs of compensation that should be borne by those who inflicted the injuries’. He adds as reason for the remaining claims of victims to some form of compensation that a person ‘who has worked hard and long to overcome an injury is not what he would have been had he never been injured’.

14. Waldron (1992, pp. 19–20) claims that often a ‘long-stolen resource’ no longer plays a significant part in people's lives, because they ‘must have developed some structure of subsistence’. This implies that their claim to compensation loses credibility. Somehow Waldron ignores the point that people's lives often have deteriorated significantly through many generations as a result of the irreplaceability of ‘long-stolen’ resources. Besides being disabled by the original injustice, their recovery is more often than not impeded by subsequent maintenance and reinforcement of the original injustice. Waldron (1992, p. 27) acknowledges this possibility when he says it is a fact that ‘many of the descendants of those who were defrauded and expropriated live demoralized in lives of relative poverty—relative, that is, to the descendants of those who defrauded them’.

15. Waldron (1992, p. 8) makes an argument against compensation for historic injustices based on his problems with the subjunctive approach that uses counterfactual reasoning to approximate ‘what would have happened if some event (which did occur) had not taken place’. This hypothetical reconstruction of possible events is then the basis to ‘change the present so that it looks more like the present that would have obtained in the absence of the injustice …’. I will show that this approach is not the only one to establish a factual basis for compensation for historic injustices.

16. See O'Neill's (1987) rejection of compensation, despite her vivid recognition of the harm done by past injustice.

17. Sunstein's reference (1991, p. 297) to affirmative action as ‘an effort to overcome the social subordination of the relevant groups’ reinforces this point.

18. The importance of this point can be illuminated by Barnett's remark (1991, p. 318) that the liberal conception of the rule of law requires ‘that sufficient evidence of liability must exist and be presented before a remedy may be imposed’.

19. Janna Thompson (2001, pp. 114–35) uses this line of argument to justify compensation.

20. See Sher (1976–77, pp. 174–9) for a position that refuses to acknowledge any notion that groups are involved in issues of compensatory justice. For Wade (1978, p. 464) the matter in the case of African-Americans is clear: ‘since the injustice the blacks have lived with was directed towards the group, reparation must follow the same pattern’.

21. Taylor (1972–73, p. 181) also describes the victims as group, because they ‘were the collective target of an institutionalized practice of unjust treatment’. Perhaps he overstates his case when he says the group was ‘created by the original unjust practice’. The group with their specific characteristics might have been drawn into the spotlight, have been focused on in a special way, or they might have been forced to react in ways that strengthened their group identification and mobilization.

22. My view coincides with one proposed by Taylor (1972–73, p. 148) when he says the following: ‘For the injustices done to a person are based on the fact that he has characteristic C. His being C is, other things being equal, a sufficient condition for the permissibility of treating him in the given manner’.

23. See Boxill's (1978, pp. 254–55) comment: ‘In order to retain their sanity and equilibrium in impossibly unjust situations, people may have to resort to patterns of behavior and consequently may develop habits or cultural traits which are debilitating and unproductive in a more humane environment’. He calls these cultural traits ‘unjust injuries’ and says they ‘may be deeply ingrained and extremely difficult to eradicate’.

24. O'Neill (1987, p. 74) refers to symbolic modes of restitution that respond to a ‘ruptured moral relationship’ between victim and perpetrator. Modes such as apology, forgiveness, and acceptance do ‘not undo wrongs’, she says, ‘but (at best) they expunge them’.

25. See for example Nickel's point (1974, p. 148). Goldman, though, wishes to argue that fairness requires that damages be assigned ‘as specifically as possible’ and that individuals must be reimbursed ‘always in proportion to the actual damages suffered under the unjust policy’. Goldman clearly denies the group aspect of such injustices that I am arguing for which does not demand these almost impossible details from victims. His position on the individualist nature of discrimination furthermore states that ‘discrimination always affects particular individuals, and reparation must be made to specific individuals’. This sentence, though true, needs to be qualified as follows: ‘Discrimination always affects particular individuals insofar as they are members of particular groups, and reparation must be made to specific individuals insofar as they have been direct or indirect victims of the consequences of discrimination based on group characteristics’.

26. Goldman (1977, p. 235) makes the point that ‘broad social pressures and stereotypes affect different individuals in different ways’. He adds that although all women, for example, might encounter discriminatory attitudes, ‘it is clear that when these differ in intensity and manifest form, and when some females receive considerable support in their endeavors from others, the long-range psychological effects of such discriminatory effects can also differ’.

27. O'Neill (1987, p. 75) argues that victims are compensated ‘if somebody offers them some equivalent for the loss suffered’. She adds that compensation ‘can be done vicariously … it need not be provided by wrongdoers or by their heirs or representatives’.

28. Wilson (1983, p. 521) argues for the view that it is ‘the guilty who … are to “pay back” the innocent … who are to compensate or requite those injured by what they have done, or to make up for it’.

29. Kershnar (1999, p. 90) argues for the view that all citizens are responsible for compensation, as the government as their agent ‘omitted to intervene to prevent private persons and state and local officials from committing unjust acts’. See also Fishkin's point (1991, p. 95) that some principle ‘that holds contemporary institutions responsible for previous acts by those same institutions might be acceptable’.

30. Taylor (1972–73, pp. 180–181) argues for an obligation to compensate that belongs to every member of society except the victims of injustice. He says that it is ‘the society in general that, through its established social practice, brought upon itself the obligation’.

31. Goldman's worry is that ‘specific individuals who have not caused or received benefit from discrimination will be forced to pay’ (1975, p. 294). Paul (1991) has a similar worry about creating a ‘new generation of victims’ who must ‘bear the burden of the remedy’. There might be individuals who did not cause the injustice, played no part in reinforcing the injustice, and received no benefit in any direct or indirect way from the consequences or effects of the injustice. Would they have reason to complain that small proportions of their taxes are used to compensate victims? The assumption that they would have reason to complain misunderstands how governments differentially distribute tax income to the benefit of interest groups of citizens. If I had no part in any crimes, why should my tax money be used to compensate victims of violent crimes, for example? Alternatively, if I do not travel by road, why should I pay taxes for building and maintaining roads? If the argument is that taxes are used for the general interest of society, then compensation for victims of injustice that eliminates bitterness and rebuilds agency would surely also benefit society? Are we victims in any way if our taxes are used for such purposes? Amdur adds to this view when he says the costs of compensation must be distributed ‘just the way we distribute the costs of any public good’ (1979, p. 233).

32. Fullinwider (1975, p. 318) refers to the fact that the benefits of injustice may be received ‘involuntary and unavoidable’. Although whether this is true in all cases might have to be settled empirically, I am strongly convinced that in most cases of injustice protest would be audible and suffering visible enough to argue that the beneficiaries had the moral responsibility of at least recognizing and enquiring about such issues.

33. Sher (1976–77, p. 180) draws a slightly different conclusion about the beneficiaries, saying they ‘may have benefited from past discrimination; but in a society in which such benefit can hardly be avoided, this is surely not a punishable offence’. Sher too easily avoids appealing to the role of their moral agency in such circumstances.

34. See also some of the distinctions made by O'Neill (1987, p. 81).

35. Goldman (1975, p. 291) defends a principle of compensation that says ‘injured parties should be compensated, and compensated in kind if possible’.

36. Nagel (1973, pp. 349–50) proposes compensatory measures ‘in the form of special training programs, or financial support, or day-care centers, or apprenticeships, or tutoring’.

37. See Paul (1991, p. 101) and note her comment (1991, p. 103) about the limits of individual compensation when she says that ‘especially with the passage of much time between the injury and the recompense, restoring the individual to his ex ante position will not fully erase the injurious event’.

38. Goodin (1991, p. 155) thinks that ‘little more than token compensation’ can be offered in cases where ‘harms are truly irreparable, and the loss truly irreplaceable’. Without denying that some harms are irreparable and some losses irreplaceable, I think compensation in such cases can have more value than being mere tokenism. The value of restoring the equal human value and dignity of victims should especially not be underrated. Creative ways of material compensation could ease a person's life to give compensation more value than mere tokenism.

39. See Ronald Dworkin's discussion of this issue in his book Sovereign Virtue (2000).

40. Wade (1978, p. 464) uses ideas similar to those of average position and relative standing to suggest a criterion when compensatory measures ought to be terminated. He says that point would be reached when victims of injustice (in this case African-Americans) ‘would have risen to preferred jobs and positions in about the same proportion as other ethnic groups who did not suffer insulting discrimination’.

41. Waldron (1992, p. 7) says part of the moral significance of the past is ‘the difference it makes to the present’.

42. This is proposed by Joseph F. Carens (1985, p. 65) when he says: ‘I want to argue that … the best way to institutionalize the ideal of compensatory justice would be to adopt the familiar egalitarian strategy of progressive taxation of high incomes and supplemental transfers to low incomes up to the point where these taxes and transfers interfere too much with market incentives’. Onora O'Neill (1987, p. 87) takes a slightly different approach by arguing for addressing poverty through the restoration of agency rather than ‘arguing about whether or not we can stretch notions of compensation for violation of rights to cover rectification of selected Third World problems’.

43. Waldron (1992, p. 27) seems to favour such an approach. He says the following: ‘If the relief of poverty and the more equal distribution of resources is the aim of a prospective theory of justice, it is likely that the effect of rectifying past wrongs will carry us some distance in this direction. All the same, it is worth stressing that it is the impulse to justice now that should lead the way in this process, not the reparation of something whose wrongness is understood primarily in relation to conditions that no longer obtain’.

44. Waldron (1992, p. 7) emphasizes that material compensation can have important functions of recognition of injustice and confirming victims' historical identities. He gives an example of compensation in America which was ‘a clear public recognition that this injustice did happen, that it was the American people and their government that inflicted it, and that these people were among its victims’.

45. Goodin (1991, p. 143) makes the point that compensatory justice ‘usually serves to restore some status quo ante … the notion of some preexisting state that is to be recreated virtually always seems to lie at the core of compensatory justice’.

46. See Rawls (1971).