Superseding historical injustice? New critical assessments

ABSTRACT

This article proposes that debates over historical injustice and Jeremy Waldron’s supersession thesis are helpfully framed by distinguishing between (a) the abstract supersession thesis proper, (b) the temporal orientation of justice, (c) various conceptions of supersession, and (d) arguments against using supersession discourse. This introduction and contributors to this volume advance the debate by discussing Waldron’s later, less examined writings on supersession of sovereignty, group identity, and treaties, as well as public dimensions of supersession and critiques drawn from settler colonial theory and Indigenous perspectives, among others. We discuss the contributions by Gordon Christie, Burke Hendrix, Julio Montero, Esme Murdock, Seunghyun Song, Jeff Spinner-Halev, and Santiago Truccone-Borgogno, and Jeremy Waldron’s reply.

KEYWORDS:

• Supersession
• Jeremy Waldron
• historical injustice
• Indigenous peoples
• sovereignty
• temporal orientation of justice

Introduction

In a series of influential works on historical injustice, the legal and political theorist Jeremy Waldron advances what he calls the ‘thesis of the supersession of historic injustice’ or the ‘supersession thesis.’¹ The structure of the argument is as follows: If a historical injustice occurs leading to an unjust situation S₁ at time T₁, morally relevant changes in circumstances can occur between T₁ and T₂, such that at T₂, justice does not require – and may prohibit – returning to the prior situation. So, suppose settlers unjustly seized Indigenous lands in 1840. Just after this, the dispossession remains an ongoing injustice and should be reversed. However, changes in circumstances like population increases and environmental conditions may mean that historical entitlements (judged from a moral perspective) can no longer be justified relative to contemporary needs for lands and resources. The distribution of resources that was unjustly established through the seizure in 1840 may become a just (or not unjust) distribution of resources in 2022. Waldron says that if it is no longer a continuing injustice that Indigenous peoples are deprived of those resources, then the injustice has been ‘superseded’ (Waldron, 1992b, pp. 24, 16, 2004, pp. 240–242).

We think distinguishing clearly between what we call the abstract supersession thesis proper and the temporal orientation of justice helpfully frames the debate. We define the former as the ‘proposition that certain things that were unjust when they occurred may be overtaken by events in a way that means their injustice has been superseded’ (Waldron, 2004, p. 240); arguably the possibility of supersession cannot plausibly be denied (Waldron, 1992b, p. 25). This differs from the latter idea, where the main question is whether justice should have a primarily forward-looking orientation, backward-looking orientation, or something in between (or more complex). Waldron (2004) indicates a strong forward-looking orientation is integral to the supersession thesis, saying the thesis is ‘not just a technical theorem in political philosophy.’ He speaks of ‘the spirit of the Supersession Thesis’ and how it ‘expresses a certain attitude towards justice … Justice may make reference to the past, through principles of desert and Lockean [historic] entitlement,’ but ‘its primary focus is on the present—present-day people, present-day resources—and on the circumstances of the present inasmuch as they affect who should get what’ (pp. 245–246; see also Waldron, 1992b, p. 26). However, we think the supersession thesis proper does not rule out a primarily backward-looking orientation, focused more on backward-looking claims only weakly constrained by forward-looking claims. The supersession thesis proper only demands that backward-looking claims give way at some point to forward-looking considerations whose strength reflects changing circumstances (especially due to changing needs).

This is the first volume devoted specifically to the supersession thesis, including a reply by Waldron. We hope to advance the debate on supersession by engaging with recent contributions and Waldron’s further refinements of his position. We show, in the next section, how the supersession thesis allows for various conceptions and forms of supersession. One can accept the abstract supersession thesis proper while criticizing Waldron’s conception and his judgments about when supersession has occurred. The section that follows examines arguments that criticize or reject using the idea and language of supersession or at least making use of it in some contexts. We contend that some of these arguments are mistaken, while seeing the public dimensions of supersession as worthy of further exploration.

Conceptions and forms of supersession

We begin in the first two sub-sections by distinguishing between types of backwards-looking claims as well as between ways in which supersession may occur. The remainder of the section discusses five main forms of supersession in Waldron’s writings: distributive constraints, special connections, group identity, sovereignty, and treaties.

Backward-looking claims

Conceptions of supersession may reflect different understandings of how injustices that people committed in the distant past give rise to backward-looking claims today and which changes in circumstances can affect the validity of these claims and corresponding duties. In one prominent understanding, when people committed injustices in the past, their victims had valid claims to rectification, such as compensation or restitution. If unfulfilled or not fully fulfilled, these or some of these claims can continue to be valid in the present and future, even absent continued harmful consequences. An intergenerational group may have a persisting entitlement to stolen land (even if they are well-off). In a second understanding, backward-looking claims arise from the fact that injustices lead to harmful consequences in the present. For example, a person who is poorly off due to historical injustice has a backward-looking claim not available to someone who is poorly off due to another cause. In a third understanding, there is a backward-looking reason for reexamining structures and outcomes that arose through unjust procedures, structural processes, or institutions, even absent independent forward-looking reasons for judging the former unjust.

Partial and dormant supersession

The language of ‘supersession’ might suggest that once supersession has occurred, no one has any further claims to rectification arising from the superseded injustice. We see this as a mistaken interpretation. We distinguish between partial and full supersession, as well as between supersession-for-the-time-being (dormant supersession) and supersession-for-all-time (final supersession; Meyer & Waligore, 2018, pp. 227–229).

Consider Waldron’s (2004) hypothetical waterhole scenario in which two groups, T and O, justly acquire their own waterholes, respectively H_t and H_o, leaving enough for others. However, T then unjustly encroaches upon H_o without reciprocally sharing. Later, a natural disaster dries up all nearby waterholes except H_o. Waldron says T is now entitled to share H_o, and the initial injustice of sharing is superseded (p. 241).

In our view, this does not mean the injustice has been fully and finally superseded. There may be a moral remainder, or partial supersession, affecting the just terms of sharing. Dormant supersession could require sharing for-the-time-being but require T to leave if a new waterhole appears. Supersession could be final if everyone became attached to the waterhole over generations and expelling people would be wrong.

Supersession through distributive constraints

Waldron’s primary possible form of supersession occurs when persisting entitlements require adjustment due to present need or other constraints on permissible distributions. Different conceptions of supersession have more or less robust distributive constraints (see, Meyer & Waligore, 2018, pp. 217–221). We think the supersession thesis proper is compatible with minimal distributive constraints.

In his contribution, Julio Montero argues that backward-looking reasons remain valid even when minimal forward-looking justice is realized today. He argues Argentina should respect provisional rights held by Indigenous peoples prior to colonization, provided everyone in the territory receives minimal justice (including meeting basic needs). Montero argues the supersession thesis does not have the consequences Waldron thinks it has: In Waldron’s waterhole example, T’s needs may not supersede O’s property rights. While T may, through injustice, become entitled to use O’s property, this does not entail T coming to own it. Further, T may owe O compensation or be obliged to relocate if circumstances change allowing T to fulfill their needs elsewhere.

In his reply, Waldron now explicitly acknowledges that his waterholes were an example on one end of the spectrum: ‘Meyer and Waligore … are right to observe that supersession has to be taken as a matter of degree. It is not a simple binary’ (p. 455). However, he resists Montero and other critics who ‘seem to believe’ that ‘even in the upshot of something like full supersession, there must always be a discount, as it were, on the rights that the Ts acquire—a discount to reflect either the wrongness of the Ts’ past taking’ or ‘the importance of the Os having been its original owner or both’ (p. 455).

Supersession of connections to specific objects, land, or places

Waldron’s second possible form of supersession occurs if parties lose morally relevant connections to specific objects or land – especially if others acquire relevant connections. For Waldron (1992b), the most plausible justificatory basis for property rights is autonomy: People make plans based on resources they control. The initial dispossession unjustly disrupts this. However, Waldron says eventually the dispossessed can no longer claim the object remains part of their daily life, so the justificatory basis fades, morally speaking (pp. 16–19).

Different conceptions of supersession identify other types of connection besides resource control (see, Meyer & Waligore, 2018, pp. 223–226). In his contribution, Gordon Christie notes Indigenous conceptions of land-people connections and alienability are absent from Waldron’s writings (see also, Sanderson, 2011, pp. 161–176). In his reply, Waldron concedes the ‘analytic thinness of my account should be complemented by Indigenous understandings of land-people links’ (p. 449).

Supersession of group identity

Waldron (2002, 2006) suggests supersession of ‘group identity’ (as we call it) could occur: Collective intergenerational groups could retain their nominal identity, while changing their substantive character. Waldron considers traditional Maori groups in New Zealand that previously performed the function of providing subsistence for members, e.g. through fishing. Waldron is skeptical that fishing rights unjustly taken in the 1800s should be returned to them. First, he says, subsistence is now provided through a modern welfare state and other means. Second, he says, many Maori now dwell in cities, where newly constituted Urban Maori Authorities (UMAs) advocate for them, not their traditional homelands. So, he asks, should UMAs receive compensation too? (Waldron, 2002, pp. 148–150, 2006, pp. 175–176) In his contribution, Jeff Spinner-Halev says Indigenous peoples may view the colonial state as not having changed its identity over time, undermining its legitimacy by breaking treaties and functioning poorly for them.

Supersession of sovereignty

The forms of supersession discussed above generally involve changes in material circumstances and hold constant the standards of justice. Waldron says sovereignty could be superseded due to changing ideas about what governance functions are appropriate (‘governmentality’; Waldron, 2013, p. 13; see, also, 2006, pp. 171–172). Suppose a colonial regime unjustly seized sovereignty or self-government from Indigenous peoples in the 1800s. However, Waldron (2013) argues that today a ‘modern’ state is ‘expected’ to fulfill numerous new functions (pp. 16–17). Waldron (2013) resists reversion of sovereignty to groups/regimes unable to fulfill these functions (pp. 12–18).

Waldron’s argument faces several criticisms. First, Waldron (2013) claims his argument would not justify the initial colonial imposition on the basis that a large functionality gap existed between the encroaching regime and the previous regime at the time of its ouster (pp. 15–16). But how then do contemporary gaps in functional adequacy oppose reversion?

Second, Waldron speaks of changing expectations, but whose expectations and which functions matter? If Indigenous peoples have not been effective, free, and equal participants in developing expectations, due to the structure of institutions and colonial history, then today’s governmental structures and functions could be described as the most recent development of settler colonialism. How can (possibly superior) Indigenous conceptions of sovereignty and self-determination be justly suppressed or ignored? (see, e.g. Napoleon, 2005; Turner, 2006) Pace Waldron, Indigenous peoples arguably can claim priority in setting the terms of constitutional arrangements. This could be defended through a more backward-looking orientation than that favored by Waldron (2013, pp. 13–14).

In her contribution, Esme Murdock uses settler colonial theory and the works of Indigenous scholars to critique Waldron on supersession of sovereignty. According to her analysis, Waldron parochially ignores these works and views the existing functions of the settler colonial state as the appropriate ones. Murdock argues that many contemporary institutions in the U.S. context do not work for Indigenous peoples and Black people but are instead continuous with or emerge from institutions founded to oppress them (e.g. U.S. police started as slave patrols). Murdock argues Waldron relies on ‘Eurowestern epistemological and temporal frameworks that are ill-suited for understanding the continuous nature of settler colonial violence, and thus what Indigenous justice requires’ (p. 411). Settler ‘invasion is a structure not an event … rather than a one-off (and superseded) occurrence’ (Wolfe, 2006, p. 388).

Waldron replies Murdock is right that settler colonial injustice (and the distrust mentioned by Spinner-Halev) may mean the current regime cannot function adequately today. He says this is relevant for determining whether supersession has occurred, but not an objection to the supersession thesis itself.

Supersession of treaties

Waldron (2006) argues treaties may be ‘superseded by circumstances’ (p. 165) due to material changes and changing standards of equity, governmentality, and legitimacy. Waldron (2006) discusses arguments that ‘capitulations’ the Ottoman Empire granted to Europeans (e.g. special exemptions from taxation) were unequal, anachronistic, and contrary to modern ideas of territorial rule and sovereignty (pp. 171–172). Waldron (2006) argues Indigenous treaties may also become obsolete if they envisioned governance functions for Indigenous groups that differ from modern notions of governmentality and sovereignty (pp. 172, 177). Waldron (2013) favors defining the ‘people’ holding sovereignty as all located in the territory, not a particular ‘ethnic’ group. Waldron (2004) says the spirit of the supersession thesis invokes the Kantian proximity principle that those unavoidably side-by-side must share resources ‘among themselves as though they were a new community,’ even if proximity results from historical injustice (p. 246). However, a more backward-orientated version of this Kantian principle says the just terms of sharing and legal arrangements depend on how we came to be side-by-side, allowing for treaties and shared sovereignty (Waligore, 2009; see also Montero’s contribution).

Other forms of supersession

These forms of supersession are not an exhaustive list. In his contribution, Santiago Truccone-Borgogno discusses the rights of future people in the context of climate justice. He says everyone (originally) has an equal share of the global ‘carbon budget,’ limited by considerations of intergenerational justice. He argues that if industrialized countries use up much of the budget and could not meet their basic needs without emitting more than their (original) share, then supersession could occur, such that less industrialized countries would be entitled to fewer emissions than their (original) share and industrialized countries entitled to more. Supersession is also discussed with respect to territorial rights, the right of return (e.g. Nine, 2008; Waldron, 2004), and structural linguistic injustice (in Seunghyun Song’s contribution).

Arguments against using the idea and language of supersession

This section examines arguments, made by contributors and others, rejecting using the supersession thesis entirely (or criticizing its deployment in some contexts). Critics examine how supersession discourse operates and point to its harmful public effects. Some focus on ongoing and/or structural injustice. Others argue supersession-talk implies there was no injustice.

Public dimensions of supersession

The most common objection to the supersession thesis, the moral hazard objection, says the thesis, if publicly known, would encourage people to commit injustice to trigger supersession (see Truccone-Borgogno’s contribution). Waldron (2004) replies we should not be ‘pretending that the Supersession Thesis is false’ to discourage injustice; we simply must accept the possibility of moral hazard (pp. 252–253). However, suppose we consider the supersession thesis as an element of a public conception of justice meant to regulate behavior in existing socio-political contexts. Some moral hazard might be inevitable with any plausible public conception of justice, but we could still judge a conception better or worse due to its incentive effects. But others go further, pointing to the limits of supersession discourse.

In his contribution, Gordon Christie (Inuvialuit) does not, as an Indigenous scholar, find it fruitful to engage with normative arguments made within supersession discourse. He instead analyzes how supersession discourse operates in settler-Indigenous interactions in British Columbia, Canada. The supersession thesis requires selecting one sense of justice specifying which types of changes are morally relevant. He argues supersession discourse operates to ‘supersede’ Indigenous morality, law, and understandings, so they matter little or not at all in determining what changes count as morally relevant. Shifting his mode of analysis, Christie advances a normative argument that supersession discourse should not be used in Canada. Christie’s argument suggests to us the generalized claim that supersession discourse should not be deployed in contexts where parties lack shared understandings of the normative presuppositions of the application of the supersession thesis.

In his contribution, Burke Hendrix similarly argues for limits on using the supersession thesis in non-ideal contexts. He grants the supersession thesis proper is correct in the abstract. However, Hendrix questions its importance for evaluating public claims made by Indigenous peoples in Anglo-settler societies, where the dominant practices involve backward-looking, circumstance-insensitive, inequality-permitting (‘pseudo-Nozickean’) principles. Hendrix argues that under non-ideal theory, Indigenous peoples may justly invoke these principles as others do, even if they don’t express their first-best ideals, provided the practices continue. Waldron in his reply acknowledges Indigenous peoples often have little choice but to adopt Nozickian-style claims given political and legal structures.

Structural and enduring injustice

Some ‘structural injustice’ theorists explicitly avoid use of ‘supersession’ analysis because their focus is not on backward-looking claims that may or may not be superseded (Ypi, 2017, p. 16). The ‘structural injustice’ approach, exemplified by Young (2011) and Lu (2017), specifically focuses on how social structural processes over time may create unjust outcomes through the overlapping effects of (possibly) unintentional actions. They argue efforts should be directed to reforming these processes, rather than focusing on identifiable agents that committed wrongful acts in the past. Talk of the ‘legacy’ of ‘past’ injustice obscures how unjust colonial structures continue (Lu, 2017, p. 200, citing Glen Coulthard). Not all structural injustices are rooted in historical injustices, and those not so rooted may be equally worth our attention. If historical injustices no longer result in structural disadvantages today, there is no special need to redress historical injustice through intergenerational reparations (except perhaps for forward-looking reasons of decreasing distrust; Lu, 2017, pp. 177–181).

Seunghyun Song’s contribution illustrates the fruitfulness of discussing supersession of structural injustice. Many forms of supersession focus on entitlements held by individual or collective agents. She focuses on supersession of ‘unjust social processes.’ She gives historically-sensitive dignity-based reasons why structural linguistic injustice may not be easily superseded, adding backward-looking elements to the structural injustice approach (cf., Waligore, 2018).

Spinner-Halev (2012) reframes ‘historical injustice’ into ‘enduring injustice.’ Enduring injustice has roots in the past, but what normatively matters is its endurance and likely persistence (p. 56). Spinner-Halev’s contribution here explores how citizens have a bias to the present, leading to a ‘motivational gap’ between concern for past injustices in general and present injustices; he suggests citizens can partially overcome this bias through focusing on enduring injustice.

Continuing injustice and the significance of historical injustice

One criticism is that talk of the ‘initial injustice’ being ‘superseded’ suggests the original injustice was not an injustice. However, this interpretation is mistaken. Without injustice, there is no supersession of injustice. When supersession occurs, this means some normative consequences of the historical injustice no longer specify valid reasons for action (Waldron, 1992b, p. 24). In later, perhaps clearer formulations, Waldron (2004) speaks of the injustice of ‘states of affairs’ being superseded (p. 242). We can understand the relevant state of affairs not simply as the original theft (of, say, land), but ongoing dispossession. Ongoing dispossession as a state of affairs is unjust immediately after the theft (so restitution should occur), but at a later time, dispossession could become a just state of affairs (supersession occurs, restitution should not occur). Further, the supersession thesis acknowledges that some normative consequences of historical injustice cannot be superseded.

Indeed, in his reply, Waldron clarifies that while restitution claims can be superseded, supersession does not apply to compensation for the wrong itself. Waldron distinguishes, as he has not elsewhere, between (1) restitution claims; (2a) compensation for the original wrong, which can be likened to damages for the unjust act itself; (2b) compensation owed when duties of compensation are not fulfilled, as if there is interest on a debt; and (2c) if unjust dispossession and non-restitution continues over time, the injustice reoccurs and compensation can be owed for each reoccurrence. While there are no further reoccurrences of that wrong when supersession occurs, this does not wipe away any already accumulated amount of compensation owed in terms of (2a), (2b), and (2c), and going forward, there can be further ‘interest’ on this debt.

Waldron (1992b) has long made clear that even if supersession occurs, remembrance of historical injustice is extremely important and (3) ‘symbolic compensation’ can still be owed (see, also Meyer, 2005, ch. 3). It is not clear how his earlier discussions of ‘symbolic compensation’ connect with the type of compensation (2a) he writes about in his reply here. Waldron also does not discuss whether compensation of the types (2b) and (2c) is owed to the direct and indirect victims due specifically to ongoing harm because of the consequences of the wrong (such as compensation for lost opportunities due to inability to use something one was unjustly deprived of). Perhaps Waldron thinks these types of compensation claims are untenable because the choices parties would counterfactually have made are indeterminable (Waldron, 1992a; for criticisms, see, Sanderson, 2011, pp. 157–161).

Conclusion

We think the idea of supersession and the distinctions we have explored can frame and systematically improve our understanding of the significance of past and ongoing injustice. Contributors here who criticize using the idea and language of supersession may reject its use even with our modifications. Conceptions like ‘partial supersession’ may well not change Christie’s analysis, as the Canadian Supreme Court’s decisions that Aboriginal title is subject to ‘justifiable infringement’ could be seen as examples of relying on partial supersession. An important avenue for further exploration is evaluating different public conceptions of supersession based on how they would affect behavior. We think that supersession can be fruitfully applied to structural injustice. Critiques drawn from settler colonial and Indigenous perspectives provide important challenges to dominant temporal frameworks and arguments that colonial injustices have been superseded.

Acknowledgments

We thank Rahul Kumar, Katie Unger, and Athena Waligore for comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work is part of research undertaken in the project ‘Supersession of Historical Injustice and Changed Circumstances,’ funded by the Austrian Science Fund (FWF) under research grant P 30084. Timothy Waligore thanks the Scholarly Research Fund from the Provost’s Office at Pace University for providing funding for release time from teaching.

Notes on contributors

Lukas H. Meyer

Lukas H. Meyer is Professor of Philosophy at Karl-Franzens-Universität Graz, Austria.

Timothy Waligore

Timothy Waligore is Associate Professor of Political Science at Pace University.

Notes

1. Waldron (1992a, 1992b, 2002, 2003, 2004, 2006, 2013); Quist and Veraart (2009). See also the earlier work of Lyons (1977).