What's so bad about slavery? Assessing the grounds for reparations

ABSTRACT

Assessing historical injury in terms of reparative potential, Winter looks at some of the difficulties facing a reparative claim for slavery in the United States. The slavery reparations literature is traditionally divided between two understandings of slavery's injury: what Winter calls ‘asset-based’ and ‘affect-based’ accounts. In the corrective justice framework he assumes, both asset- and affect-based descriptions of historical injury face powerful liability-derived objections. After critiquing some recent work that attempts to meet these challenges, Winter sketches a hybrid account. Drawing on the divergent strengths of the asset- and affect-based understandings, he concludes by suggesting conditions for a reparatively relevant historical injury that answer several traditional liability objections.

Keywords:

• compensation
• harm
• historical injustice
• injury
• liability
• reparations
• slavery

Acknowledgements

I would like to express my appreciation for discussions with Lukas Meyer, David Miller and Stuart White whose thoughts greatly improved this paper. I am also indebted to Kathy Smits and to an anonymous reader for very helpful comments on previous drafts. Finally, I thank the editorial staff at Patterns of Prejudice for their important contributions.

Notes

¹In John Donne, Devotions upon Emergent Occasions (London: Thomas Iones 1624).

²For a similar distinction, see J. Torpey, ‘“Making whole what has been smashed”: reflections on reparations’, Journal of Modern History, vol. 73, no. 2, 2001, 333–58.

³By ‘affect-based’ I intend to capture insults and other ‘emotional’ harms.

⁴There are good reasons to reject this position, but I will not discuss them here. For an overview of the historical justice field, see Duncan Ivison, ‘Historical injustice’, in Bonnie Honig, John S. Dryzek and Anne Phillips (ed.), The Oxford Handbook of Political Theory (Oxford and New York: Oxford University Press 2006), 507–25.

⁵Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (Baltimore and London: Johns Hopkins University Press 2000), 308.

⁶Cf. Janna Thompson, Taking Responsibility for the Past: Reparation and Historical Injustice (Cambridge: Polity Press 2002), 104. Thompson holds out the possibility that group injury might emerge from other facts.

⁷I discuss the idea of group injury and its relationship with ethical individualism in Stephen Winter, ‘On the possibilities of group injury’, Metaphilosophy, vol. 37, no. 3–4, 2006, 393–413.

⁸It will be of particular note that I ignore arguments requiring the inheritance of reparative claims and those demanding restitution. My reasons for disregarding these strategies are, first, a disinclination to believe that moral claims can be inherited and, second, my understanding that restitutionary claims for slavery depend on African Americans’ victimization by slavery. Since they were not alive during slavery, it would appear that any African-American victimization by slavery depends on a derivative or indirect injury. Therefore, in the historical context, restitutionary claims are not an alternative to injury-based arguments, but rather will depend upon them.

⁹See Joel Feinberg, The Moral Limits of the Criminal Law. Vol. 1: Harm to Others (New York and Oxford: Oxford University Press 1984), 31, and Joel Feinberg, ‘Wrongful life and the counterfactual element in harming’, in Joel Feinberg, Freedom and Fulfillment: Philosophical Essays (Princeton, NJ: Princeton University Press 1994), 3–36. Like other jurisprudential writers, Feinberg tends to use the term ‘harm’ where I use ‘injury’. However, I think that the etymology of ‘injury’ (in-ius) better captures the idea of violating a valid claim and therefore better captures its moral character. Consequently, I do not treat ‘harm’ and ‘injury’ as synonymous; rather, the not-necessarily-normative ‘harm’ refers to damage resulting from an event.

¹⁰I address some of the other questions in Stephen Winter, ‘Uncertain justice: history and reparations’, Journal of Social Philosophy, vol. 37, no. 3, 2006, 342–59, as well as in Stephen Winter, ‘A Justified Claim? Reparations, Historical Injustice and the Case of American Slavery’, D.Phil. dissertation, University of Oxford, 2006.

¹¹For a contrasting position, see Michael Ridge, ‘Giving the dead their due’, Ethics, vol. 114, no. 1, 2003, 38–59.

¹²Cases of overdetermination indicate this formulation is not strictly correct. For a discussion, see Stephen Kershnar, ‘The inheritance-based claim to reparations’, Legal Theory, vol. 8, no. 2, 2002, 243–67, and Winter, ‘Uncertain justice’.

¹³This point highlights my disagreement with a non-counterfactual understanding of reparations. For a defence of an alternative, see Rodney C. Roberts, ‘The counterfactual conception of compensation’, Metaphilosophy, vol. 37, no. 3–4, 2006, 414–28.

¹⁴For a short selection of authors who make this claim, see Adjoa A. Aiyetoro, ‘Why I'm a reparations activist—back talk’, Essence, vol. 28, no. 6, 2002; Richard F. America (ed.), The Wealth of Races: The Present Value of Benefits from Past Injustices (New York, London and Westport, CT: Greenwood Press 1990); Molefi Kete Asante, ‘The African American warrant for reparations’, in Raymond Winbush (ed.), Should America Pay? Slavery and the Raging Debate on Reparations (New York: Amistad 2003); Dalton Conley, ‘Calculating slavery reparations: theory, numbers, and implications’, in John Torpey (ed.), Politics and the Past: On Repairing Historical Injustices (Lanham, MD and Oxford: Rowman and Littlefield 2003), 117–25; Kyle Logue, ‘Reparations as redistribution’, Boston University Law Review, vol. 84, no. 5, 2004, 1319–74; Randall Robinson, The Debt: What America Owes to Blacks (New York: Dutton 2000); and Eric Yamamoto, Susan K. Serrano and Michelle Natividad Rodriguez, ‘American racial justice on trial—again: African American reparations, human rights, and the war on terror’, Michigan Law Review, vol. 101, no. 5, 2003, 1269–1337.

¹⁵ Deadria Farmer-Paellmann v. Fleetboston, ‘Complaint and jury trial demand’, United States District Court for the Eastern District of New York, 26 March 2002, available on www.findlaw.com at http://news.lp.findlaw.com/hdocs/docs/slavery/fpllmnflt032602cmp.pdf (viewed 4 April 2007).

¹⁶Logue, ‘Reparations as redistribution’, 1350.

¹⁷ Deadria Farmer-Paellmann v. Fleetboston.

¹⁸Roy L. Brooks, Atonement and Forgiveness: A New Model for Black Reparations (Berkeley and London: University of California Press 2004), 47 (emphasis added).

¹⁹Lawrie Balfour, ‘Reparations after identity politics’, Political Theory, vol. 33, no. 6, 2005, 786–811 (793); Hanoch Dagan, ‘Restitution and slavery’, 24 May 2004, available from the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=556262 (viewed 10 April 2007); David Lyons, ‘Corrective justice, equal opportunity, and the legacy of slavery and Jim Crow’, Boston University Law Review, vol. 84, no. 5, 2004, 1375–1404.

²⁰Dinah Shelton, ‘Righting wrongs: reparations in the articles on state responsibility’, American Journal of International Law, vol. 96, no. 4, 2002, 833–56 (846).

²¹Cf. Boris I. Bittker, The Case for Black Reparations (New York: Random House 1973); Alfred L. Brophy, ‘Reparations talk: reparations for slavery and the tort law analogy’, Boston College Third World Law Journal, vol. 24, no. 1, 2004, 81–138; Thomas McCarthy, ‘Coming to terms with our past, Part II: On the morality and politics of reparations for slavery’, Political Theory, vol. 32, no. 6, 2004, 750–72; Kaimipono Wenger, Causation and Attenuation in the Slavery Reparations Debate, Thomas Jefferson School of Law Public Law Research Paper No. 05-16, 2005, available from the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=600021 (viewed 10 April 2007). Works that reject the connection include: John Edwards, ‘Group rights v. individual rights: the case of race-conscious policies’, Journal of Social Policy, vol. 23, no. 1, 1994, 55–70; Calvin Massey, ‘Some thoughts on the law and politics of reparations for slavery’, Boston College Third World Law Journal, vol. 24, no. 1, 2004, 157–76; Thomas Sowell, ‘Reparations for slavery?’, Jewish World Review (online magazine), 17 July 2000, at www.jewishworldreview.com/cols/sowell071700.asp (viewed 10 April 2007).

²²Bernard R. Boxill, ‘A Lockean argument for black reparations’, The Journal of Ethics, vol. 7, no. 1, 2003, 63–91 (85–91); Brooks, Atonement and Forgiveness, 88–97; George Sher, ‘Transgenerational compensation’, Philosophy and Public Affairs, vol. 33, no. 2, 2005, 181–200 (193–5); and A. John Simmons, ‘Historical rights and fair shares’, Law and Philosophy, vol. 14, no. 2, 1995, 149–84 (178–9). Note that Simmons discusses Aboriginal claims, but his argument is easily adapted to the African-American context. Other works offering similar arguments include: Daniel Butt, ‘Principles of Compensation and Restitution in International Justice’, D.Phil. dissertation, Department of Politics and International Relations, University of Oxford, 2004; Logue, ‘Reparations as redistribution’; Lukas Meyer, ‘Historical injustice and the right of return’, Theoretical Inquiries in Law, vol. 5, no. 2, 2004, 305–15; and Vincene Verdun, ‘If the shoe fits, wear it: an analysis of reparations to African Americans’, Tulane Law Review, vol. 67, no. 3, 1993, 597–668. Note also that Sher and Boxill formulate their accounts in response to a special problem that counterfactual non-identity creates for compensatory claims. Ignoring this problem here, I hope to address it in a later publication.

²³Sher, ‘Transgenerational compensation’.

²⁴See the interesting discussion in Frances Kamm, ‘Baselines and compensation’, San Diego Law Review, vol. 40, no. 4, 2003, 1376–80.

²⁵Cf. J. Angelo Corlett, Race, Racism, and Reparations (Ithaca, NY and London: Cornell University Press 2003), 198.

²⁶Thompson, Taking Responsibility for the Past, ch. 7; Jeremy Waldron, ‘Superseding historic injustice’, Ethics, vol. 103, no. 1, 1992, 4–28 (12).

²⁷‘In terms of aggregate financial resources the African American community, as a group, was substantially better off in 2001 than in 1992; but their gains in income and wealth were not as large, on average, as for the total population, whose income and wealth grew even faster than African American households’: John J. Havens and Paul G. Schervish, ‘Wealth transfer estimates for African American households’, New Directions for Philanthropic Fundraising, no. 48, Summer 2005, 47–55 (48–9). This interpretation may be distorted by an overall decline in the lower- and middle-class share of the nation's wealth.

²⁸Simmons, ‘Historical rights and fair shares’.

²⁹Bittker, The Case for Black Reparations; Boxill, ‘A Lockean argument for black reparations’; Robert Fullinwider, ‘The case for reparations’, Institute for Philosophy and Public Policy Quarterly, vol. 20, no. 2/3, 2000; Emma Coleman Jordan, ‘A history lesson: reparations for what?’, New York University Annual Survey of American Law, vol. 58, no. 4, 2003, 557–613; Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, MA and London: Harvard University Press 1993); and Thompson, Taking Responsibility for the Past.

³⁰Robert Strassfeld, ‘Counterfactuals in the law’, George Washington Law Review, vol. 60, no. 2, 1992, 347.

³¹Shelby Steele, ‘. . . Or a childish illusion of justice?: Reparations enshrine victimhood, dishonoring our ancestors’, in Winbush (ed.), Should American Pay?, 198; Armstrong Williams, ‘Presumed victims’, in Winbush (ed.), Should American Pay?, 170.

³²See the discussion in Orlando Patterson, The Ordeal of Integration: Progress and Resentment in America's 'Racial’ Crisis (New York: Basic Civitas 1997), ch. 1.

³³Keith N. Hylton, ‘A framework for reparations claims’, Boston College Third World Law Journal, vol. 24, no. 1, 2004, 31–44 (35).

³⁴Boxill, ‘A Lockean argument for black reparations’, 86; see also, inter alia, Lyons, ‘Corrective justice, equal opportunity, and the legacy of slavery and Jim Crow’; McCarthy, ‘Coming to terms with our past, Part II’.

³⁵For a discussion, see Bittker, The Case for Black Reparations; Jordan, ‘A history lesson’; Emily Sherwin, ‘Reparations and unjust enrichment’, Cornell Legal Studies Research Paper No. 04-01119, 19 August 2004, available from the Social Science Research Network at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=580802 (viewed 10 April 2007).

³⁶Cf. the discussions of moral claims in Paul Patton, ‘Historic injustice and the possibility of supersession’, Journal of Intercultural Studies, vol. 26, no. 3, 2005, 255–66, and John Skorupski, Ethical Explorations (Oxford and New York: Oxford University Press 1999), 182–4.

³⁷By using the term ‘affective’ I want to highlight the fact that these interests are not material goods or resources, but rather how a person feels or sees herself in relation to others.

³⁸John Rawls, Political Liberalism, with a New Introduction and The ‘Reply to Habermas’ (New York: Columbia University Press 1996), 50.

³⁹Larry May, The Morality of Groups: Collective Responsibility, Group-Based Harm, and Corporate Rights (Notre Dame, IN: Notre Dame University Press 1987), 115. May contends that solidaric groups are defined by relationships of concern that are properties of both individuals and objects of group interest. For him, the solidaric group is a type or example of a group with interlocking interests and therefore a set of individuals with a group interest. As I understand it, the description of solidaric injury provided here is a refinement of May's arguments, although, pace May, I do not think that group injury is done to a separable relation; it is comprised of the interest-setbacks of individuals.

⁴⁰Thompson, Taking Responsibility for the Past, 107.

⁴¹Paul Woodruff, ‘What's wrong with discrimination?’, in Steven M. Cahn (ed.), The Affirmative Action Debate, 2nd edn (New York and London: Routledge, 2002), 31 (emphasis added).

⁴²I thank Stuart White for this suggestion. For some discussion, see Glenn Loury, ‘Trans-generational justice—compensatory vs. interpretative approaches’, in Jon Miller and Rahul Kumar (ed.), Reparations: Interdisciplinary Inquiries (Oxford: Oxford University Press 2007).

⁴³Feinberg, The Moral Limits to the Criminal Law, 78.

⁴⁴Tony Honoré, Responsibility and Fault (Oxford: Hart Publishing 1999), 75–93.

⁴⁵Howard McGary, Race and Social Justice (Malden, MA and Oxford: Blackwell 1999), ch. 7.

⁴⁶Cf. Eric K. Yamamoto, ‘Racial reparations: Japanese American redress and African American claims’, Boston College Law Review, vol. 40, 1998, 477–523 (496). Yamamoto does not endorse this argument, but David Horowitz does: see Horowitz's widely circulated 2001 advertisement, ‘Ten reasons why reparations for slavery is a bad idea for Blacks—and racist, too!’, available on Frontpagemag.com, 3 January 2001, at www.frontpagemag.com/Articles/ReadArticle.asp?ID=1153 (viewed 11 April 2007).

⁴⁷I include C3 because conventional reparative practice gives priority to the immediate victims, and their claims may exhaust the offender's reparative obligations. This may be for three reasons. First, the repair of injury means no moral breach remains to ground indirect injury. Second, it is plausible that direct reparative transfers will exhaust what indirect claimants can reasonably require for reparation if, as the victim experiences reparation of his injury, those injured by virtue of their affective interests will simultaneously experience interest advancement. Third, the negative effects to the offender, in respect to transfers other than the primary transfer, may exceed that permitted by external justice considerations.

⁴⁸Cf. Farid Abdel-Nour, ‘National responsibility’, Political Theory, vol. 31, no. 5, 2003, 693–719.

⁴⁹It is appropriate here to make a quick comment on what Rodney C. Roberts calls a ‘moral statute of limitations on injustice’. A claim for such a limitation is made by several authors, including Richard Epstein, ‘The case against black reparations’, Boston University Law Review, vol. 84, no. 5, 2004. In jurisprudence, the reasons supporting statutes of limitations include certainty, fairness, repose, effectiveness of deterrence and the degradation of evidence. While the question of principled limitation cannot be adequately addressed in a footnote, in the legal arena a statute of limitations is ‘tolled’ when the above reasons do not obtain. For discussion, see Brophy, ‘Reparations talk’; Keith N. Hylton, Slavery and Tort Law, Boston University School of Law Working Paper Series, Public Law and Legal Theory Working Paper No. 03-02 (Boston: Boston University School of Law 2003); Martha Minow, ‘Foreword: why retry? Reviving dormant racial justice claims’, Michigan Law Review, vol. 101, no. 5, 2003, 1133–40; C. J. Ogletree, ‘Repairing the past: new efforts in the reparations debate in America’, Harvard Civil Rights-Civil Liberties Law Review, vol. 38, no. 2, 2003, 279–320; Rodney C. Roberts, ‘The morality of a moral statute of limitations on injustice’, The Journal of Ethics, vol. 7, no. 1, 2003, 115–38; Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press 2000); and Waldron, ‘Superseding historic injustice’.

⁵⁰Cf. G. A. Cohen, ‘Expensive tastes and multiculturalism’, in Rajeev Bhargava, Amiya Kumar Bagchi and R. Sudarshan (eds), Multiculturalism, Liberalism, and Democracy (New Delhi and Oxford: Oxford University Press 1999).

⁵¹Cf. Abdel-Nour, ‘National responsibility’; David Miller, ‘Inheriting responsibilities (second draft)’, 2004, available online at www.trinitinture.com/documents/miller.pdf (viewed 11 April 2007).

⁵²There is a cognate discussion in Marc Galanter, ‘Righting old wrongs’, in Martha Minow (ed.), Breaking the Cycles of Hatred: Memory, Law and Repair (Princeton, NJ: Princeton University Press 2002), 121.

⁵³Robert S. Browne, ‘Achieving parity through reparations’, in America (ed.), The Wealth of Races.

⁵⁴Cf. Anthony Sebok, ‘Two concepts of injustice in restitution for slavery’, Boston University Law Review, vol. 84, no. 5, 2004.