Freedom from Past Injustices: A Critical Evaluation of Claims for Inter-Generational Reparations 9780748649648

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Freedom from Past Injustices

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To Nurit, Ran, and Alma

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FREEDOM FROM PAST INJUSTICES

A CRITICAL EVALUATION OF CLAIMS FOR INTERGENERATIONAL REPARATIONS

2 Nahshon Perez

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© Nahshon Perez 2012 Edinburgh University Press Ltd 22 George Square, Edinburgh, EH8 9LF www.euppublishing.com Typeset in 11/13 Sabon by Servis Filmsetting Ltd, Stockport, Cheshire, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 0 7486 4962 4 (hardback) ISBN 978 0 7486 4964 8 (webready PDF) ISBN 978 0 7486 4963 1 (epub) ISBN 978 0 7486 4971 6 (Amazon ebook) The right of Nahshon Perez to be identified as author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.

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Contents

Analytical Table of Contents Acknowledgments Preface Introduction 1 Laying the Groundwork

vii xi xiii 1 8

2 Non-identity and Redressing Historical Injustices

24

3 Against Redress (1): The Individualistic Perspective

40

4 Against Redress (2): Thinking about Collectivities, States, and Nations

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5 Intergenerational Redress and Forward-looking Considerations, and the Remaining Case for Redressing Past Wrongs

99

Conclusion Notes Index

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125 138 181

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Analytical Table of Contents

Acknowledgments Preface

xi xiii

Introduction Framing the debate in individualistic terms; why arguing against redressing historical injustices is important; overview of the book

1

1 Laying the Groundwork A. What are historical injustices? A workable definition. B. Historical injustices, a typology of remedies: monetary compensation, restitution, non-material compensation (apologies, memorials); some observations on compensation in general. C. The focus of the book: material redress. D. Some notes on individual responsibility and the separateness of persons. E. Property rights and the supersession thesis.

8

2 Non-identity and Redressing Historical Injustices A. The non-identity problem. B. Two attempts to justify redress following past wrongs, and to overcome the nonidentity problem: “identity” and “timing.” C. Examining the “identity” and “timing” arguments’ attempts to justify redressing past wrongs versus the non-identity problem and versus some additional arguments. 3 Against Redress (1): The Individualistic Perspective A. Some (necessary) preliminary definitions and distinctions: compensation, restitution, and “setback” compensation. B. The “continuing injustice argument”; a description. C. Under a magnifying glass: examining the “continuing injustice argument”: restitution, compensation; information-related problems.

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freedom from past injustices 4 Against Redress (2): Thinking about Collectivities, States, and Nations A. Collective responsibility and intergenerational redress, examining three “collective responsibility creators”: identification, participation, and benefit. B. Who should pay? Collective responsibility and luck. C. Contracts and promises. D. On Jaspers’ metaphysical guilt. 5 Intergenerational Redress and Forward-looking Considerations; the Remaining Case for Redressing Past Wrongs A. Forward-looking considerations; forward-looking considerations and intergenerational redress: a general evaluation; improving intercommunal relations; deterrence; efficiency. B. The remaining case for redressing past wrongs (the Maria Altmann case as paradigmatic).

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Conclusion 125 The plurality of arguments against redressing historical injustices; how states are born: a comment on memory; the right to a clean slate. Notes Index

138 181

viii

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. . . if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable . . .1 Present possession is plainly a relation betwixt a person and an object; but is not sufficient to counter-ballance the relation of first possession, unless the former be long and uninterrupted: In which case the relation is encreased on the side of the present possession, by the extent of time, and diminished on that of first possession, by the distance . . .2 The dead? But the dead have no rights. They are nothing; and nothing cannot own something.3

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Acknowledgments

In one of my favorite parts of Alice’s Adventures in Wonderland, the duchess and Alice converse, and the duchess says the following: “‘Oh, don’t talk about trouble!’ said the Duchess. ‘I make you a present of everything I’ve said as yet.’ ‘A cheap sort of present!’ thought Alice. ‘I’m glad they don’t give birthday presents like that!’ But she did not venture to say it out loud.”1 I always thought that (disregarding what the Duchess actually said, which was, most of the time, rather silly), Alice missed an important point here: what people say to you is a tremendous gift, guiding you from blind spots and potential mistakes. In writing this book I gained tremendously from colleagues and friends who were kind enough to share with me their remarks, comments, and suggestions with regard to different aspects of the text, some in writing, some in conversation. It is a pleasant opportunity to thank them, in alphabetical order: Dan Avnon, Thom Brooks, Andrew I. Cohen, Avigail Eisenberg, Nir Eisikovits, Alon Harel, Patti Lenard, David Lyons, Jan Narveson, Avia Pasternak, Jeff Spinner Halev, and Christine Straehle. Ideas from this book were presented at several conferences, and I wish to thank the participants in the various panels, the commentators, and the audience for various helpful comments: the “Pearl” lectures in philosophy and public affairs at Suffolk University (Boston, 2011); the Association for Political Theory annual conference (Notre Dame, Indiana, 2011); the Mid-west Political Science Association annual conference (Chicago, 2011); the American Political Science Association annual conference (Washington, DC, 2010); and the Western Political Science annual conference (San Francisco, 2010). Most of the work on this book was done at the beautiful Elie Wiesel Center for Judaic Studies at Boston University. Michael Zank, the director, and Deeana Klepper, the chair of the religion department, made my stay a pleasant experience – for which I’m thankful. xi

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freedom from past injustices The professional team at Edinburgh University Press contributed expertise, goodwill and excellent advice for which I’m grateful. Last, but very far from being least, Alma Gadot-Perez was the first audience for many of the arguments that are presented in this book, and her critical responses were absolutely crucial in the process of writing this book. Parts of Chapter 3 appeared as an article, under the title: “On Compensation and Return: Can the ‘Continuing Injustice Argument’ for Compensating for Historical Injustices Justify Compensating for Historical Injustices, or the Return of Property?,” Journal of Applied Philosophy, 28(2), May 2011, 151–168. I thank the Journal of Applied Philosophy for permission to use those segments here.

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Preface

This book puts forward an unfashionable thesis: that individuals should, in a majority of cases, be able to live their lives without bearing costs related to past wrongs. This is not a popular opinion among most academics working in political theory and numerous adjacent fields, but I believe it should be heard as the arguments leading to this conclusion are strong, clear, and infrequently discussed seriously. Writing a book arguing against intergenerational redress while at the welcoming Elie Wiesel Center at Boston University may be seen as a surprising endeavor. Every day when I enter the building, I see the plaque at the entrance commemorating the tragic fate of Professor Wiesel’s family. How can one, in this environment, argue against intergenerational redress? But as Professor Wiesel indicated in his important November 2010 lecture, descendants of wrongdoers are not wrongdoers, and descendants of victims are not victims, but different people.1 These distinctions, which will be crucial to the argumentation in this book, clarify why it could be written in this environment. This book does not argue for forgetting; its focus lies elsewhere. It focuses specifically on individuals born after a past wrong has ended and all the wrongdoers and victims have passed away. It asks whether these individuals, born after a wrong has ended, can be expected to participate in the cost of intergenerational redress offered to (most likely) descendants of victims of this past wrong. The answer that will be provided in this book, for a majority of cases, will be, no, such individuals should not be expected to bear material costs related to past wrongs. This conclusion follows from two different, yet complementary claims. First, arguments in favor of intergenerational redress are almost all unconvincing, and ,second, individuals born after a wrong has ended have a right to a clean slate. xiii

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freedom from past injustices The assertion that individuals should not be expected to bear material costs related to past wrongs does not support the neglect of poor descendants of deceased victims of past wrongs, but the reason for offering assistance in such cases should be that they are poor, not that they are descendants. As I was reading the many sources that argue otherwise, I noticed that one especially important question receives insufficient attention: “who should pay?” If intergenerational redress for past wrongs is sanctioned, someone has to pay the bill. In cases of intergenerational redress, the potential payers are not wrongdoers as the wrongdoers have all died. Who, then, is required to bear this burden of material redress? And why? And how much? And to whom should such redress be paid if the original victims have all passed away? If “who should pay?” seems like a worthy question, you are welcome to read on.

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Introduction

Framing the debate in individualistic terms; why arguing against redressing historical injustices is important; overview of the book

Framing the Debate in Individualistic Terms; Why Arguing against Redressing Historical Injustices is Important This book is written as a critique of a fashionable opinion: namely, that historical injustices should be redressed. Calls for redressing past wrongs1 are widespread both in the academy and elsewhere. Examples of this general tendency, both from within the academic literature and from a variety of other sources, will be examined in this book. In sharp contradiction to this fashionable opinion, I shall argue that in the vast majority of cases, there are very good reasons to let bygones be bygones. Several different justifications for the “let bygones be bygones” position will be examined in this book. However, the crux of the argument is that, as a rule, individuals born after a wrong has ended should usually not be burdened with the heavy cost of redress in cases in which all the direct wrongdoers and victims have passed away. There will be some exceptions, leaving the possibility of justified attempts for redress intact in some cases, but a careful examination of the arguments both for and against redressing historical injustices will show that the arguments in favor of redress almost always fail to justify their own stated goal. In this introduction I shall first discuss the main assumption of this book – that of the separateness of persons – followed by a brief explanation of the way I define historical injustices, and why I believe that arguing against redressing historical injustices is important. Following this, I will briefly state the methodology of the book as well as offer a brief overview of each chapter. As the goal of this introduction is simply to present the book, I shall leave most of the (numerous) footnotes to the body of the work. 1

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freedom from past injustices The central assumption of this book is the assertion that each individual is a separate person.2 This point may seem trivial (of course, I’m not my father, mother, sister, brother, children, or neighbor!), but it is surprising how quickly, and easily, scholars, journalists, op-ed writers, NGOs, governments, and others overlook this simple point. Once this assertion, that each individual is a separate person (specifically, from other persons), is properly acknowledged, it becomes clear that a majority of the justifications for redressing historical injustices effectively undercut the individuality of separate persons. This, I shall argue, is a major failing. While there are some other strong arguments against redressing historical injustices, the separateness of persons – and its powerful, yet simple, ability to resist many attempts to justify redressing historical injustices – has not, as yet, received a serious consideration. What are historical injustices? Historical injustices, as I shall define them in this book, are cases of past wrongs in which all the original wrongdoers, and all the original victims, have passed away. Note that not all of the people who existed at the time of the wrong need to have died for the event to be considered a historical injustice according to the definition just given, only the original wrongdoers and the original victims. It may be the case that all of the people who lived at the time of the wrong have since died, and in many cases this will be the situation, but it is not a necessary condition for my definition. There are three parts to the definition: the wrongdoer(s), the wrong, and the victim(s). In Chapter 1, I shall analyze each component, but here I want to point to three crucial aspects of this approach to historical injustices. First, the original wrongdoers and original victims have all passed away. Second, the wrong must be significant enough to merit our attention. It is not, let us say, a minor case of John stealing Jane’s wallet in 1725 in London, but a major event that violated any reasonable criterion of liberal rights. Furthermore, it is an event that we know took place, so issues of fact – while never completely beyond disagreement on this or that detail – are not a major obstacle with regard to understanding the main details of the original wrong. Thus, the definition intentionally excludes cases where records are insufficient to establish that there was a specific past wrong to redress. Third, historical injustices raise issues, by definition, that concern people who were not involved in the wrong. This point explains why attempts to justify redress of past injustices are so fascinatingly appealing and controversial. The original victims and wrongdoers have died; whatever rights, duties, and policies a given 2

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introduction scholar would like to justify today, these will be applied not to the original victims and wrongdoers, but to different persons. Why is it important to argue against redressing historical injustices? Why is this book worth the reader’s attention? Two reasons. First, arguing for redressing historical injustices is becoming more and more fashionable. This is not merely an academic concern, as the proliferation of such demands may be seen in Australia,3 Northern Cyprus,4 the United States,5 Israel/Palestine,6 and many other places, which indicates a growing public interest in the subject.7 Some voices that seek to redress historical injustices ignore the separateness between persons implicitly, and sometimes explicitly. This leads me to the second reason why I think (and hope) that this book deserves the reader’s attention: if we take the separateness between persons seriously, attempts to redress historical injustices will raise immediate worries. If the original wrongdoers and the original victims have all since died, any attempt to redress the historical injustice(s) will impose costs on individuals born after the wrong ended.8 This seems counterintuitive to regular notions of redress, or perhaps worse. There may be some reasonable ways to get around this simple yet fundamental point, but these will have to be very persuasive in order to bypass the simple point, which I will not tire to repeat: attempts to redress historical injustice(s) are applied to individuals who were not involved in the original wrong. Ignoring this point may end up burdening, sometimes severely, individuals who were not involved in the wrong. If this strikes the reader as problematic, or even worrisome, I hope the arguments of this book will be worth her or his time. A word about methodology and style. This book is written in what may be called the tradition of analytical political theory. My interest is in arguments which I aim to examine and discuss in this book. I will mention several actual case studies throughout the book – court cases from Australia and Austria, examples from political theory, and Jewish classical sources – to provide illustrations and to point to an otherwise overlooked dimension in the argumentation, but this book concerns arguments, not historical or legal research. The literature on historical injustices is, as yet, not as developed as other subjects within political theory. However, the subject touches upon some neighboring issues, such as rights to private property and collective responsibility, which have attracted the attention of many other scholars. While I have tried to cover the relevant literature, this is not a book about books. It is, rather, an attempt to provide a systematic argumentation about the book’s subject matter. I also 3

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freedom from past injustices wanted to avoid burdening the book with too many notes. I therefore added references only to books and articles that are directly relevant to the arguments developed here which, as the reader will see, is a significant number. A last comment is about style. When writing this book (any book actually) the question of “who the readers will be” arose. My goal has been to make this book accessible for the non-specialist, while maintaining the rigor required for a serious academic work. I therefore assume no prior knowledge and try to introduce the arguments step by step. My goal has been to maintain the rigorous argumentation expected from works of political theory, while also allowing a student – or any interested reader – to read and enjoy, rather than to craft an overly specific book with an audience of a few experts.

Overview of the Book Readers have limited time and diverse interests. I have tried to respect both by writing in a precise, succinct style and by limiting my focus to the specific subject of redressing historical injustices, while avoiding the temptations of discussing the many “neighboring” subjects. The wish, of course, is that the reader will be interested enough in order to read the whole book. However, I am well aware (as a reader myself) that this might not be the case for many readers. The following outline, therefore, has three goals: to illustrate the structure of the book; to explain why it is structured the way that it is; and to assist a busy reader in finding the issues she or he is interested in as quickly as possible. Chapter 1 provides several background explanations and definitions which underline the important gap that this book attempts to fill. In this chapter I offer a definition of historical injustices and, given that there is more than one kind, develop a typology of remedies (not of injustices, which I will explain in the chapter). This chapter justifies the specific focus of this book on material redress, rather than other forms of redress (such as apologies). I then discuss the separateness of persons and individual responsibility, two aspects crucial to the arguments that follow in later chapters. Lastly, as material redress bears immediately on property rights, I discuss property rights and the thesis that past wrongs are in some cases superseded by later events (i.e., the claim that historical injustices may be superseded if circumstances have changed since the wrong). I argue that property rights in and of themselves – while obviously important in any consideration of 4

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introduction historical injustices – cannot provide satisfactory theoretical solutions for the problems that historical wrongs entail. Chapter 2 examines the non-identity problem which presents a challenge for scholars wishing to justify compensating the descendants of deceased victims of past wrongs. If the past wrong is causally connected to the existence of these descendants, then the past wrong did not harm them insofar as without it they would not exist. In this chapter, I critically discuss two attempts to overcome the non-identity phenomenon. The first attempt is the argument from group identity, which states that past wrongs harmed not only the individual members of a group, but also the group’s identity. As the wrong done to the group is maintained via the group’s culture, current group members are still harmed by the past wrong; hence, a justification for compensation. The second attempt is the argument through timing. If (a) the original victims were parents at the time of the wrong and their descendants’ existence is therefore not causally connected to the wrong, and (b) the parents’ ability to bequeath resources to their descendants was harmed by the wrong, this presents a justification for compensation that may avoid the non-identity problem. Can the “identity” and “timing” arguments successfully avoid the non-identity problem? My conclusion is that the “identity” argument fails to overcome the non-identity problem, whereas the “timing” argument offers insightful and interesting solutions. That said, there are reasons to be quite skeptical of the “timing argument” apart from the non-identity problem, which will be examined (as a part of an “individualistic” approach to intergenerational redress) in Chapter 3. Chapter 3 examines the individualistic approach to redressing historical injustices. This means that this chapter focuses on proredress arguments that aim to justify compensation, or restitution, paid to individuals regardless of their communal belonging. Chapter 3 centers on the distinction between compensation and restitution, and why this distinction is crucial for a precise assessment of proredress arguments. This distinction, once it has been presented, grounds an assessment of the individualistic “family” of pro-redress arguments. Some of the main arguments examined following from the compensation/restitution distinction are: the responsibility of the descendants of victims; the duties of the descendants of the wrongdoers; the right to continue one’s life without a constant threat of disturbance; and information-related problems.9 I am unaware of any previous attempts such as this in the literature. Chapter 4 examines the main collective-based arguments for inter5

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freedom from past injustices generational redress. There are a variety of widely different arguments regarding collective responsibility and collective belonging, and painstaking efforts are required to analyze them. As a result, the chapter will be divided into four sections. Section A examines three often repeated ways to argue that collective responsibility exists (when certain conditions are met): “identification,” “participation,” and “benefit.” I shall discuss each argument and assess whether it can justify intergenerational redress. Section B examines the connection between collective responsibility and luck; given that belonging to a collective is often determined via involuntary entry (usually through birth), critics of intergenerational collective responsibility can point to the arbitrariness of ascribing responsibility to such group identities. In this section, I will explore both this critique and potential answers. Section C examines the argument that both states and contracts are intergenerational, and therefore a state that signed a contract at time T1, but failed to meet its obligations under this contract, is obliged to fix this broken contract at time T2 (creating an obligation to be levied on the citizens of this state at time T2), even if the original individuals who signed the contract are long dead. Lastly, section D examines Jaspers’ famous “metaphysical guilt” approach to collective responsibility, and argues that Jaspers’ rightly famous approach does not attempt to justify intergenerational redress. This section criticizes Larry May’s attempt to justify intergenerational redress (by following Jaspers’ approach) on two points: first, May neglects Jaspers’ original meaning; and, second, his argument violates the Rawlsian assumption of the separation between persons. Each section of this chapter is structured in two stages: in the first step, I assess whether the collective-based argument is analytically valid in contemporary cases. If the answer is yes, I take the assessment to step two: whether the collective-based argument succeeds in establishing an intergenerational collective responsibility required for a successful redress argument. My conclusion is fairly skeptical: almost all of the collective-based arguments examined do not succeed (and some do not attempt to) in justifying intergenerational redress. The few exceptions are mainly in the context of restitution rather than compensation. Chapter 5 is divided to two sections: the first section examines forward-looking considerations for and against intergenerational redress; the second section examines a successful and justified case for intergenerational redress. Forward-looking considerations with regard to intergenerational 6

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introduction redress differ from the pro-redress arguments examined insofar as they do not focus on the past wrong, harms to victims, or the obligations of the wrongdoers and their beneficiaries. Rather, they consider such issues as the relations between corrective and distributive justice, relations between communities, resumption of economic activity, and deterrence. I examine such forward-looking considerations and attempt to consider their importance vis-à-vis other considerations (such as were examined in Chapters 3 and 4), and the diverse consequences such considerations have vis-à-vis pro-redress approaches. The second section of Chapter 5 returns to the arguments and counterarguments presented throughout the book, attempting to determine whether there is any remaining “space” for justified compensation and/or restitution claims for historical injustices. In this section I examine the famous Maria Altmann art restitution case as a paradigmatic example of a justified restitution claim. In the Conclusion, I discuss three different points. I begin by describing “the plural case” against redressing past wrongs, that is, the case against redressing historical wrongs is the conclusion of many different arguments – the critiques directed against the various arguments that attempt to justify intergenerational redress. I then move to the second point, which is a comment on memory. I go back to one of the fundamental assumptions of the pro-redress approaches, that past wrongs should be rectified, and, as at this point in the book we have a richness of arguments and cases in front of us, I examine this assumption critically. Lastly, I discuss the fundamental individual right to a clean slate; not being burdened with the costs of rectifying past wrongs, and distinguish it from concepts such as forgiveness and mercy.

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Chapter 1

Laying the Groundwork

A. What are historical injustices? A workable definition. B. Historical injustices, a typology of remedies. C. The focus of this book: material redress. D. Some notes on individual responsibility and the separateness of persons. E. Property rights and the supersession thesis.

1.A What are Historical Injustices? Historical injustices are cases of substantial past wrongs, in which all the original wrongdoers and all the original victims have since passed away. I shall assume that the wrong has ended, and that related debates – regarding, let us say, entitlements of descendants of the deceased victims – take place in a broadly conceived liberal democratic society with no legal discrimination against such descendants. Some notes about this definition: I am discussing only substantial cases of past wrongs, so the definition intentionally excludes the 1 cent the Jane stole from John in 1870 in New York. Cases that will be considered have to involve substantial violations of individual rights, such that will probably involve a large number of people.1 Examples include, but are not limited to, slavery in the United States and aboriginal claims in places like New Zealand and Australia. Note that Holocaust reparations, for example, are not “historical” according to this definition as survivors are still alive (as of 2011). In order for a past event to qualify as a historical injustice, we need enough information. We need to be able to determine who the wrongdoers were, who the victims were, and exactly what wrong was done. We need this relevant information to come from sufficiently reliable sources. Factual issues are worrisome when discussing past wrongs, especially as historical events of the kinds discussed in this book are sometimes controversial and politicized. Problems 8

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laying the groundwork of information will be discussed in following chapters, but, even in this preliminary stage, it is important to note that the reliability of relevant information is crucial for any discussion of past wrongs and remedies. Information-related issues are, therefore, likely to rule out most attempts to correct past injustices that happened many centuries ago. My definition of past wrongs demands that all the relevant wrongdoers and all the relevant victims have since died.2 It is not necessary for this definition (although often this will be the case) that all the people alive in the period in which the wrong took place have passed away, only the relevant persons. By “relevant” persons I mean the actual persons who carried out the wrong, or the immediate victims. This definition is, therefore, strict in nature. I will have more to say about collective responsibility, also conceived of strictly, in Chapter 4. The history of human civilization is pathetically sad. Wars, conflict, cruelty, racism, and anti-Semitism are the norm, not the exception. Pick any random year in the last 250 years, in any populated continent, and you will probably find past wrongs of a substantial nature in significant quantities. How do we choose, without being arbitrary, which of these past wrongs to correct?3 One possible answer is that the past wrongs that should be corrected are those that have identifiable and urgent consequences for the present day. This answer, however, raises further difficulties. First, if the issue is contemporary, it is unclear why it should be classified as a past wrong and redress sought. Second, if only the past wrongs that raise urgent political and social problems today justify corrective action, there is an incentive for maintaining past injustices, or connecting contemporary problems to past wrongs.4 This is a perverse incentive about which I will have more to say in Chapter 5. A second possible answer – to the question how should a decision be made with regard to which past injustices should be redressed? – is that an attempt should be made to redress as many past wrongs as possible. Such an answer problematically assumes that redressing historical injustices is a correct and justified course of action. Since it assumes this point, this answer cannot be presented as an answer to my charge that such redress is not obviously justified. Furthermore, as there are numerous past wrongs, trying to redress many such wrongs will require substantial resources today and run the danger that other, contemporary interests will be neglected. For the purpose of this book, it is sufficient to assume that the 9

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freedom from past injustices opinion that past injustices should be redressed is widespread enough, in order to justify the critical endeavor presented to the reader.

1.B Historical Injustices, A Typology of Remedies Historical injustices follow from what, at a previous point in time, was a contemporary injustice. Injustice means, in a very general way, that we have a standard of justice that was violated by X and that harms Y.5 This basic framework is assumed when a claim is made that there is an injustice or a wrong (I shall use the two interchangeably) that requires redress.6 As time passes, all the victims and wrongdoers die and the injustice becomes a completed past event. In order to create a typology of past injustices, according to this logic, all we need is a list of violations of justice – or wrongs – as in criminal law or in the law of torts. While concepts from the law of torts will be useful in some aspects as we progress, a list of such concepts will not be very useful to us at present. Why? In the case of a wrong that happened, let us say, five minutes ago, the exact nature of the wrong is important, as the policy that will follow will (roughly) be a combination of punishment and compensation of some sort. However, in historical injustices, the issue of punishment is not relevant – as the wrongdoers have all died and there is no one left to punish. The issue, therefore, is the compensation offered to the descendants of the victims as an attempt to redress the injustice (note that all the original victims have died too). A more promising way to develop a typology of past injustices is to think not about the wrong and then about the remedy, but to think about the required type of remedy and then about who should provide this remedy (and these will be payers, not defendants). This approach is very different than the way in which we usually think about contemporary wrongs, where the differences between wrongs are more clearly evident and important. Therefore, our main interest should be the different types of remedies, or redressing measures, rather than the different wrongs (I shall leave the issue of who should be the payers to a later stage of this book). It is useful to differentiate between three types of redress, or remedies: first, monetary compensation; second, restitution; and, third, non-material redress. I shall elaborate on each type individually. Note, however, that these categories are not mutually exclusive, and a given attempt for redressing a past injustice may involve more than one category. 10

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laying the groundwork 1.B.1 Monetary Compensation Past injustices include horrible acts such as slavery, torture, ethnic cleansing, and mass murder. Many times, such acts are accompanied by the stealing of property and/or land. Usually, such acts call for punitive measures. However, in historical injustices, in which the wrongdoers have already died, this is not relevant. Compensation for such acts, however, may be relevant. While it is very difficult to determine the specific fiscal value of any such case, there is certainly a monetary side to these wrongs. This is not an attempt to “put a price” on such wrongs, rather, a much more modest view that material reparations are sometimes requested, and in other cases made, following such wrongs as a practical, non-“metaphysical” issue. It is possible, at least potentially, to assess sums, calculate interest for the time that has passed since the wrong, and reach some quantifiable amount, even if there are different estimations.7 Monetary compensation does not have to be the only remedy required, or requested, it simply indicates that money is at least a part of the remedy. Why is compensation paid? One aim of compensation, and following which compensation is paid, is that the wrongdoer will bear the burden of the loss or damage, and this damage is a useful measure of the value of said compensation (other goals will be offered below).8 Since in historical injustices the wrongdoers and the victims have died, the question of who should bear the cost of monetary compensation, and who is eligible for compensation, arises. In order to motivate this conversation at all, those advocating compensation will argue that there is ongoing damage, done to the descendants of the victims, which is causally connected to the wrong done to their forefathers. Without this assumption, any conversation about compensation will lack the basic requirement of a damage which should be redressed. This raises further questions about what kind of damage this is exactly, but in this early stage I only wish to clarify the type of potential responses to historical injustices that we may encounter, and monetary compensation is certainly one such response. 1.B.2 Restitution Requests for restitution have two typical features: the justification for a restitution claim is the unjust enrichment of person A (or persons, or entity – I shall write person for the sake of simplicity) following some interactions that included, or are connected to, person B. The 11

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freedom from past injustices remedy is the extent of the unjust enrichment of A (which A ought to return to B) – no more.9 The assumption here is that person A was somehow unjustly enriched, and although, typically, no wrong was committed against B by A, A is not entitled to the given enrichment. While A is not responsible for B’s loss, A is nonetheless not entitled to the enrichment. She or he should therefore return to B the extent of this enrichment. For example: Z stole B’s watch, and gave10 it to A, who did not know that the watch was stolen. If B meets A, and says “this is my watch!,” A should return the watch to B. This does not imply that A is responsible for B’s troubles: the hours she or he dedicated to trying to find the watch, the emotional distress (suppose the watch had sentimental value), etc. In some cases, restitution requests are for specific items, such as a painting or a family heirloom. In other cases, it can be for a monetary sum (held in a safe in a bank, for example). Both are cases of restitutions if the request follows the two criteria identified above: the existence of unjust enrichment; and the requested remedy does not exceed the extent of this unjust enrichment. The main difference between compensation and restitution is not, therefore, that one is monetary and the other is not. Rather, it is mainly that restitution is motivated by unjust enrichment of the defendant (or whoever benefited from the unjust enrichment), while compensation follows the extent of the loss or damage suffered by the victim (see the discussion of Nozick’s approach below). 1.B.3 Non-material Compensation In some cases, no material remedy is required. Perhaps too many years have passed since the wrong occurred, and material rectification is deemed inadequate, or perhaps something else is required in addition to material redress. In such cases non-material remedies are required. Two common examples are apologies11 and memorials or monuments.12 Memorials are built, and apologies are made, in order to fulfill several functions, including: to remind the descendants of past wrongdoers (and to other citizens of the state in which such wrongs took place) of the existence of past wrongs; to express recognition of the wrong and express regret; to show respect toward the suffering of the victims of past wrongs; and to improve the relations between the descendants of wrongdoers and the descendants of victims. Such non-material remedies are sometimes dismissed as “easy” or “cheap,” but such acts are sometimes more difficult than 12

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laying the groundwork they seem as they shed unflattering light on the state and may also trigger requests for material compensation. In some cases, there is factual disagreement about the wrong, about its proportions, or even whether it took place, and ongoing political conflicts surround the issue. Apologies are, therefore, not as easy as they sometimes look.13 1.B.4 Some Observations on Compensation in General Following these brief comments on the different kinds of remedies, it may be useful to present a concise definition of compensation as a whole. Not a specific kind of compensation, but what compensation is generally, and what it attempts to achieve. Since compensation is a complex term, it may be defined in different ways. I shall follow, by and large, Nozick’s famous definition: bringing the victim to a level of well-being s/he would have enjoyed had the wrong not occurred.14 The advantage of Nozick’s definition is that it nicely captures a strong moral intuition: that if A wronged B, B will be fully compensated if, following the compensation, his or her well-being is at the level it would have been had the wrong never occurred.15 In order to achieve this goal of bringing the victim to a level of welfare he or she would have enjoyed had the wrong not occurred, there will be cases in which material compensation will be needed, other cases that require restitution, and other cases that require non-material remedies. It is also possible that a combination of the different remedies will be required. This definition of compensation will be important for several arguments and counterarguments that will be developed in later chapters. In order to avoid linguistic confusion, whenever I mean the overall Nozickian compensation, I shall indicate “Nozickian compensation,” or “over-all” compensation. From now on, I shall mainly use the terms just introduced. In cases in which I will discuss a general argument that aims to justify not a specific form of compensation, but some sort of response to past wrongs, I shall use “redress,” “remedies,” or “rectification.”

1.C The Focus of this Book: Material Redress This book is about material redress. I shall say very little about nonmaterial remedies for past injustices. There are several reasons for this focus. The first, is that trying to write about both material and non-material remedies in one book would expand its boundaries 13

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freedom from past injustices too much. A second reason is less technical: I think that material remedies pose a more interesting and, to some extent, urgent subject. If descendants of victims of past wrongs request material redress, this material redress will have to come from some source. In this book I take very seriously the issue of this “source,” which has been neglected in many of the publications on this topic. This source will invariably be the taxpayer, probably born after the wrong was committed, and in any case would have had no part in the historical wrong. The issue of non-material redress, while involving many important subjects – from forgiveness to national guilt, to relations between groups within nations (and between different nations) – does not trigger issues involving the private property of individuals.16 Lastly, and perhaps surprisingly, while non-material redress, and especially apologies, have won the attention of scholars, the subject of material redress following historical injustices has not been so lucky in political theory. While there are articles about this subject,17 there are very few relevant books in the political theory tradition discussing this topic, and the most famous one presents the exact opposite thesis of the one that I shall present in this book.18 Indeed, the majority of articles written on this subject attempt to justify material redress – and most of them do so by employing arguments that will be critically examined in this book.

1.D Some Notes on Individual Responsibility and the Separateness of Persons19 Many of this book’s examinations of historical injustices and issues of rectification fall back on questions about responsibility. Some of the approaches in favor of redressing historical injustices have a particular view of persons and of responsibility, typically – either explicitly20 or implicitly – following Burke’s famous view of persons as belonging to a society which is “a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.”21 In this book, I will view responsibility, following Bernard Williams and H. L. A. Hart, as an attribute appropriate mainly for individuals in the context of a liberal polity. This is a fairly restrictive view which connects responsibility to voluntariness. Before describing this view of responsibility, however, two brief comments are necessary. First, since in cases of historical injustices the wrongdoers have all died, the issues of responsibility that will be discussed in this book 14

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laying the groundwork will have nothing to say with regard to responsibility for the past wrong itself. Second, following this point, the issues of responsibility that arise in this text will apply to later generations, that is, between payers and claimants, not direct defendants and direct victims. This complicates discussions of wrongs and redress, and such discussions will not be resolved solely based on a specific view or definition of responsibility (although such a clear view, to be presented below, is helpful). Rather, the relations between redress and responsibility will be discussed in various ways in the chapters to follow. Having clarified these points, we can return to the Williams–Hart approach to responsibility. Bernard Williams offers a fairly restrictive view in which there is no responsibility without voluntariness. Voluntariness, argues Williams, may be attributed to a person in the following scenario: “A does X voluntarily is equivalent to A does X intentionally in a normal state of mind.”22 Responsibility follows voluntariness, and may be attributed to a person, therefore, only if these two conditions, intention and a normal state of mind exist. Williams therefore creates a powerful connection between voluntariness and responsibility. Now, such a definition may face challenges of various kinds: how do we know if a person intended to do X? What is exactly a “normal” state of mind? And, of course, voluntariness implies that the person may have had the option of choosing something else, which brings us close to problems of determinism and free will. Regardless, the advantage of Williams’ approach is that it continues the liberal view of polity in which any reduction of freedom of persons by the government requires a strong justification. For example, if a person chooses to wrong another person (according either to criminal or tort law), such a justification is found and punitive means (such as a fine or imprisonment) may be justly used by the state. However, if the condition of voluntariness is missing, argues Williams (following Hart23), then such a justification is absent. In other words, if punitive measures are used in cases in which voluntariness is missing, the state diminishes, or even violates, a person’s freedom,24 following reasons or circumstances outside this person’s control, as this person was not free not to choose the action that brought about the punishment (because the action following which this person is punished was not voluntary). This is a serious matter, and while there may be other reasons for punitive measures,25 a liberal state should avoid violating freedom when the voluntariness condition is absent.26 Williams’ definition presents a “pure” definition of what 15

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freedom from past injustices responsibility means or, more specifically, when can we say that person A is responsible for his or her action. It does not directly address responsibility for a certain state of affairs that follows one’s action. Therefore, in order to hold person A to be responsible for (bad state of affairs27) B, voluntariness is a necessary, but not sufficient condition. Two further conditions must apply before we can say that person A is responsible for bad state of affairs B: that person A acted28 in a way that caused, or brought about,29 situation B, and that A’s actions were faulty or, more generally, morally wrong.30 So, in order to indicate that person A is responsible for bad state of affairs B, the following conditions have to be met: person A performed X voluntarily, X caused B, and X was morally wrong or faulty. If, and only if, all three conditions apply, A is responsible for bad state of affairs B. Consequently, a liberal society may impose costs on person A, such as a fine or imprisonment, because A is responsible31 for bad state of affairs B. I shall use the terms “responsibility” or “responsible for” sparingly throughout this work, and only in the manner just defined. Obviously, there may be other reasons, aside from responsibility (as just defined), that are sometimes used to justify imposing costs on persons (although such reasons need to be carefully argued for), such as deterrence, strict liability, and so on. But we should carefully separate such justifications or reasons (regardless of their validity) from arguments about responsibility.32 The view of responsibility as connected to voluntariness is consistent with the Rawlsian view that each person is separate from other persons mentioned above.33 According to a plausible interpretation of the Rawlsian view,34 imposing costs on person X, following a wrong committed by person Z, is illegitimate.35 According to the view of responsibility presented, even if a strong justification can be found that sanctions imposing costs on individual X following what Z has done, and which serves some legitimate social goal – such as deterrence – we could not justify it by claiming that such a policy stems from X’s responsibility. A brief example, of the kind that will be the focus of this book, will help to clarify this last point. According to the separateness between persons view, it would be wrong to impose costs on person X, following a past wrong Y. According to the view of responsibility presented here (that insists on voluntariness), imposing costs on X cannot be justified on the grounds of responsibility for this past wrong. 16

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laying the groundwork The view of responsibility that insists on the voluntariness condition and the separateness between persons principle36 will have, therefore, important consequences vis-à-vis arguments that attempt to justify redressing historical injustices. Note that there may be other arguments that attempt to justify imposing costs on person X in our example, but these will not stem from his or her responsibility. Such arguments will have, in some fashion, to overcome the separateness between persons and the view of responsibility presented. At least one noteworthy consequence of the discussion so far is that there is no such thing as “taking responsibility” for a past wrong. In the case of a past wrong, first, the condition of voluntariness is missing, and, second, the separateness between persons condition does not allow the grouping of dead wrongdoers and living innocent persons. It may be possible to impose costs on the descendants of wrongdoers and uninvolved third parties (we shall discuss arguments for and against this in the following chapters), but the reasons for imposing those costs must not be that such persons are responsible for those past wrongs. Two final comments on the issue of responsibility. First, this view of responsibility is appropriate mainly for individuals, as it is individuals who have the capacity to choose and have intentions, and, therefore, are the most appropriate subjects for the voluntariness criterion crucial to the attribution of responsibility. Some scholars argue that in some cases, however, it is appropriate to attribute responsibility to groups, not via ideas of freedom of association or mere aggregation, but via ideas of collective agency.37 This is a challenging argument (following which I included the “mainly for individuals” rather than “only for individuals” above), especially in its multigenerational version. This book focuses on a fairly narrow aspect of this larger debate regarding the standing of groups, dealing with intergenerational redress, which I shall examine carefully in Chapter 4. Second, in cases in which person A is responsible for bad state of affairs B, a question will arise regarding what constitutes an adequate response from the surrounding society and the legal system. The issue of what constitutes an adequate response in cases of wrongdoing when responsibility is established is always complex, even if we ignore the further complications that present themselves in intergenerational cases, in which the identity of the “would be” payers poses a major difficulty. These issues will accompany us in the following chapters, but at this point a purely analytical point is required: that responsibility and adequate response are two separate issues. Furthermore, no 17

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freedom from past injustices automatic answer, whether compensation, restitution, non-monetary response, etc., is determined even in cases in which responsibility was determined to exist.38 To put it simply, establishing responsibility is the starting point, not the final word, when considering an adequate response to wrongdoing, especially in past wrongs. This distinction will be important for us in later chapters.

1.E Property Rights and the Supersession Thesis An interesting passage in a classical Jewish text, addressing property rights in a way that will assist us in discussing property rights in intergenerational redress contexts, reads as follows:39 a person who steals from his friend, pays to him the value of the theft, and interest, and pays a fine to the state (if there is one); if the victim dies, the wrongdoer pays to the descendants of the victim the value of the theft, and interest, and pays a fine to the state (if there is one); if the wrongdoer dies, the descendants of the wrongdoer (or whoever inherited his property) pay (to the victim) the value of the theft, but not the interest and not the fine owed to the state (if there is one); if both the victim and the wrongdoer die, the descendants of the wrongdoer pay the descendants of the victim the value of the theft but not interest nor the fine to the state (if there is one).40

This ancient text, tells us something interesting (aside from the fact that historical injustice was already being discussed in ancient times!): while the punishment disappears with the death of the wrongdoer, the right to property does not. The Jewish sages, I think, had a point: applying the logic of this text to a historical wrong, in which both the wrongdoer and the victim have since died, the descendants of the wrongdoer should repay the value of the theft to the descendants of the victim, but they should not be required to pay either the fine to the state – which is a quasi-punishment – or the interest. The former is obvious: it is a punishment, and the wrongdoer has died. But why not the interest? Here it may be possible to argue that during the time in which the theft was in the hands of the wrongdoer and/or her or his descendants they benefited from the interest gained from the theft. If this is indeed the case, it should be returned. I would argue, however, that the sages had a point (although I am unsure as to why they reached their conclusion). In cases of historical injustices, it may be difficult to show that such interest exists and can be separated from other property held by the descendants of the wrongdoer. In other words, it may be difficult to show that the descendants of the 18

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laying the groundwork wrongdoer benefit from the past wrong. I shall return to this point in Chapter 3. This classic Jewish text offers a valuable insight: that property rights (of the victim) outlive the lives of both the victim and the wrongdoer. This separates ownership of property from the issue of responsibility. Even if the issue of responsibility, both for the original wrong and in the context of punishment, does not arise (as the wrongdoer is no longer alive), it does not mean that the question of ownership does not arise: the question, therefore, is whether the descendants of the wrongdoers (or the beneficiaries) who currently hold it, should own this property. This difficult question is, of course, the focus of this book, so at this point a (very) concise discussion of property rights is required. A traditional liberal view of property rights can be traced back to Locke. In one of the most famous (and researched) paragraphs in political theory, Locke states: Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.41

This short paragraph has inspired many interpretations,42 but it is sufficient for our needs to simply accept that individuals have an important interest in their property, regardless of the specific interpretation given to Locke’s locution.43 If one’s property rights are violated, a wrong is committed that requires rectification. So far, I have said nothing novel or, I think, controversial. In the case of historical injustices – in which the wrongdoer and the victim have both since died – however, it is not immediately clear how the passing away of the wrongdoer and the victim influences property rights. It seems, at least initially, that it does not. If we agree that person X has an important interest in her or his property, and this interest was violated, then there is a case for redressing this event. If time has passed, and both the wrongdoer and the victim have died, the property does not disappear, rather it has a new owner, usually the descendants or inheritors of this property (the beneficiaries of the wrongdoer). It seems fairly uncontroversial that the immediate and direct descendants (let us say, children) of the victim have stronger claims to whatever was taken from the victim than the descendants 19

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freedom from past injustices of the wrongdoer who currently hold the property. Problems arise, however, as we start to add variables to the example which included simply: one wrongdoer, one victim, full knowledge about the wrong, a reasonable estimation of the value of the wrong, and immediate, identifiable descendants (of both the wrongdoer and the victim). In such a scenario, there seems to be a case for transfer of property from the descendants of the wrongdoer to the descendants of the victim, if we do agree about the initial importance of ownership. Following Honoré’s famous definition, it is the first-generation descendants of the victim who have the greatest interest in this property.44 However, as we shall see in the chapters to follow, this simplified model is, of course, simplified. The claim for rectification based on property rights, which seemed promising, will face substantial difficulties if the value of the wrong is not clear; we encounter difficulties in identifying the descendants of the wrongdoer and/or the victim we are discussing, for example, the grandchildren rather than the children of the wrongdoer; later generations significantly change the original property; or we encounter difficulties in identifying the property that originated in the wrong. In such cases, we will face conflicting demands with regard to ownership.45 Deciding which claims to property, among all the different claimants mentioned above, to honor will be accomplished not simply by saying “property,” but by a complex evaluation of relevant considerations that include, but are not limited to: how stable are property rights?;46 what interests may override property claims?; what reliable information do we have about the current identity of the descendants of the victims and wrongdoers?;47 what are the rights of those currently holding the property obtained by the historical wrong (but had no part in the wrong)? Furthermore, answers to these questions may vary as we examine different kinds of property such as money, art, and land. I doubt whether any “one size fits all” answer is suitable to these different cases. Now, the answer “saying property is not sufficient in order to provide solutions to the complex case of historical injustices” is not itself sufficient – “it depends” will bring about the question “depends on what?” I think, therefore, that it is better to examine the ownership issue in several different contexts, under the different sections below. For example, restitution and compensation will be examined in Chapter 3, the non-identity problem in Chapter 2, and so on. To conclude, I find it impossible to provide any general answer to property disputes that follow historical injustices, rather, property will 20

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laying the groundwork be examined as a part of more specific questions in various chapters below. 1.E.1 Property Rights and the Supersession Thesis One important argument about property rights is that such rights are limited to begin with. This point was famously advocated by Locke, not in the context of historical injustices, but in the context of the original justification for property rights. Locke argues: “for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.” This famous sentence has been variously interpreted. However, for our needs, the most important point is that property rights are limited following the interests of the non-owners (of this specific property).48 This limitation, or “proviso,” is crucial to a proper understanding of the place (and strength) of the claims for redressing past wrongs, as will become apparent below. The supersession thesis, in turn, was advanced by J. Waldron,49 following Locke’s famous proviso. The argument, briefly put, is as follows. Suppose that an injustice occurred sometime in the past. Let us say, a certain piece of land was stolen. Suppose, further, that time passes since the wrong took place. As time passes, the circumstances that existed at the time of the wrong change. For example, the number of people living on this piece of land has grown substantially. The supersession thesis’ point is that, at this point in time, returning this piece of land solely to the descendants of the original owners would be unjust, as this would harm the people living today on this piece of land. An important aspect of the supersession thesis is that property rights are not immune to other considerations. If a certain appropriation and the resulting ownership present a significant setback to the interests of non-owners, there is a justification for limiting such ownership. Note that this principle – that ownership is limited by other considerations – in and of itself, is not connected to time.50 To put it in other words, if person A owns the piece of land B, and persons C, D, and E have no other place to go, the ownership of A is limited by the interests of C, D, and E.51 The novelty of the supersession argument lies in its explanation of how the consequences of a wrong at point in time T1 (when the circumstances did not justify limiting the ownership of a given property 21

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freedom from past injustices such as a piece of land) became, at least partially, just in a later point in time, T2 – as by then the circumstances have changed in a way that would justify limiting the property rights of the owners or their descendants, regardless of the wrong, and regardless of the identity of the owner. For example, consider a scenario in which, at time T1, Sarah owned piece of land B, fertile land, and her neighbors, Dan and Rachel, owned their own fertile land (all of them living on an otherwise desolate island). Suppose Dan stole Sarah’s land. A wrong is committed, but after many years have passed, and Sarah, Dan, and Rachel are long dead, the wrong has never been rectified. Their descendants at time T2 face a natural catastrophe and all land, save the land originally owned by Sarah but now possessed by the descendants of Dan, is no longer fertile. At this point, returning this land solely to the descendants of Sarah will be unjust, as it would adversely affect all the inhabitants of the island (and violate the Lockean proviso). Note that, in this example, the addition of the passage of time as a variable is, therefore, merely a rough (yet absolutely reasonable) way to indicate that a new situation has arisen since the wrong occurred, which justifies limiting the property rights of the original owners and their descendants. The supersession argument is impressive and, in some cases, such as land rights, it provides a valuable explanation for cases like the legitimacy of settler societies such as the United States, Canada, and Australia. The supersession thesis, however, has several important limits. The first limitation is cases, or properties, that simply do not fit the logic of the supersession thesis. For example, works of art. The power of the supersession thesis stems from the intuition that if ownership of some crucial assets, such as land or drinkable water, is not limited in some fashion, crucial interests of non-owners will be harmed. If I own the only source of drinkable water, and there are plenty of thirsty people around me, my ownership should be constrained in some fashion. But how many other types of assets are similar enough to water and land to also justify this conclusion? Food, housing, perhaps a few others. But what vital interest is harmed if one owns a painting?52 The supersession thesis only applies to those goods, or assets, that are important enough to trigger the “if A, B, and C do not have access to this good, a vital interest of theirs will be harmed” logic. This means that such goods that are not sensitive to the super22

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laying the groundwork session thesis will enjoy a stronger intergenerational defense of the original owner’s property claim (see also the Maria Altmann scenario in Chapter 5). The second limitation is that nothing in the supersession argument necessitates that the entire original wrong will be superseded. It is perfectly logical to argue that original owner A (or her descendants) should agree to waive a part of her property (piece of land) to accommodate the needs of B, C, and D. Their needs are (probably) only for a portion of this land, no more. If the original owner’s entire land was stolen from her at an earlier point in time, the descendants of the original owner can still claim that all the land, save those parts that were waived in order to assist B, C, and D, should be returned to them (assuming that the original owner has long passed away). The third, and last, limitation is that the supersession thesis indicates a further aspect of the problem without providing a solution. In other words, while it is true that the property claims of the original owners are limited by the current interests of non-owners, a variety of arrangements are still possible between the original owner (and his or her descendants) and other persons. Now, in cases of historical injustices, the situation will be roughly as follows: the descendants of the original owners (the original victims) will face the claims of the descendants of the original wrongdoers, plus those of uninvolved third parties. The relations, therefore, are not those of a wrongdoer and a victim, but that of a claimant (the descendants of the original victim) and a (potential) payer. What is owed to the descendants of the original victims by those currently residing on this (originally stolen) piece of land, from either the descendants of the original wrongdoers or non-involved third parties is not fully determined by the supersession thesis. The important contribution of the supersession thesis is the basic argument that the claims of the descendants of the original victims are limited by the interests of those currently holding the (originally stolen) property. Thinking about the claims of the descendants of the victims that are not answered by the supersession argument will constitute a major aspect of this book.

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Chapter 2

Non-identity and Redressing Historical Injustices

A. The non-identity problem. B. Two attempts to justify redress following past wrongs, and to overcome the non-identity problem: “identity” and “timing.” C. Examining the “identity” and “timing” arguments’ attempt to justify redressing past wrongs versus the nonidentity problem and versus some additional arguments. The non-identity problem presents an urgent challenge to scholars wishing to justify redressing historical injustices, and is the first hurdle that any pro-intergenerational redress argument will need to bypass. This chapter is dedicated to an examination of this problem. The non-identity problem is as follows: if living is (usually) better than non-living, and if a given historical injustice is causally connected to the existence of the descendants of deceased victims of this historical injustice, how can a living person be wronged by something without which he or she would not exist? Surely the historical injustice improved his or her situation (or at least it did not harm him or her).1 The non-identity argument is thus a thorny objection to compensation following past wrongs – if a pro-redress approach is indeed incoherent, it portraits the pro-redress approach in a less than flattering light. As can be expected, some attempts at solving the non-identity objection to redressing historical injustices have been suggested. Two important ones are the argument from identity and the argument from timing.2 The argument from identity goes roughly as follows: if one’s identity is strongly connected to an intergenerational group that preceded the wrong, and if the past wrong harmed the intergenerational group’s identity and other interests, and this harm to the group’s identity continues to exist throughout the generations, then contemporary, living members of the group may be harmed following a past wrong, as their current, existing group-centered identity3 is harmed. The second attempt to answer the non-identity objection to redressing historical injustices concerns 24

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non-identity and redressing historical injustices timing: if person X was alive at the time of the wrong and already had children, his or her interests suffered a setback, and that person’s ability to pass down resources to his or her descendants was harmed or violated. If we assume that the resources that he or she would have passed on to his or her descendants would have been passed down to further generations of descendants, the result is that the descendants’ entitlements to these resources are not influenced by the non-identity problem, as the existence of the (now deceased) original victims and their descendants is not the result of the past wrong. The timing is therefore crucial here: as the harm was done to an already existing person, the non-identity objection does not arise. In this chapter, I shall argue that the identity argument and the timing-focused approach provide a serious challenge to the nonidentity problem; indeed, these are the only significant attempts, to the best of my knowledge, that offer such a comprehensive challenge to the non-identity problem in the context of intergenerational redress. However, a detailed examination will show that the non-identity problem cannot be defeated that easily, especially with regard to the “identity” argument. However, even if the “identity” and the “timing” attempts to overcome the non-identity objection to redressing historical injustices are successful, there are other reasons (not connected to the “non-identity” problem) to doubt the ability of these two arguments to justify redressing past wrongs. These other reasons include, first, skepticism about the strong group-centered identity-related arguments presented by the “identity” argument (which I’ll divide to several subarguments); and, second, with regard to the “timing” argument, several potential objections will be raised, including the lack of distinction between restitution and compensation claims, remoteness and counterfactual problems, and several information-related problems, all to be discussed in Chapter 3. My conclusion will be that even if the identity and timing arguments succeed in defeating the non-identity objection (see the analysis in section 2.C of this chapter), their success in justifying redressing past wrongs is highly limited at best, following several additional, non“non-identity” counterarguments. The chapter will proceed as follows: section 2.A briefly presents the non-identity problem. Section 2.B presents two recent attempts to overcome (or avoid) the non-identity problem described above. Section 2.C examines whether these two attempts succeed in overcoming the non-identity problem and then presents further critiques of the “identity” argument. 25

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freedom from past injustices

2.A The Non-identity Problem Suppose the following: X (a state or a large number of people) wronged Z (a large number of people). This wrong was substantial: genocide, ethnic cleansing, slavery. Following the wrong, the lives of the surviving victims shifted completely: people lost their loved ones, their homes, and so on. As a result of these massive changes the victims’ children are genetically different to the children they would have had had the wrong never occurred (the timing of conceiving the victim’s children, the choice of partners, their place of living – all changed following the wrong). The wrong, in other words, becomes causally connected to the existence of the descendants of the victims.4 The non-identity argument here adds an assumption to this scenario. The assumption in most cases is that it is better to be alive than not to exist5 or, in other versions, that it does not make sense to compare living and non-living, so at the very least, if one’s existence is causally connected to a past wrong one was not harmed by it.6 In the former case, unless the situation of the descendants of the victims is truly and unquestionably miserable, their situation has improved following the past wrong, as it is a condition for their existence and as it is better to exist than to not exist. In the latter case, there is no meaning in comparing non-existence to existence. Therefore, any attempt by the descendants of victims of past wrongs (not the original victims, as the wrong is not causally connected to their existence) to claim that they are owed compensation will be met by the objection that as their existence is causally connected to the past wrong, the past wrong improved, or at least did not harm, their situation, and it simply does not make any sense to ask to be compensated for an event that improved or did not harm one’s situation.7 The non-identity problem poses a challenge to the belief that past wrongs should be redressed. In this context, two approaches have recently been suggested that attempt to overcome, or avoid, the nonidentity problem: “identity” and “timing.” I believe that there are important reasons to focus on these two attempts to overcome the non-identity problem: first, because these are fairly recent developments in the literature, and it is intriguing to examine whether such recent developments have succeeded in overcoming a major obstacle such as the non-identity problem; second, because both attempts treat the nonidentity problem as a serious intellectual and philosophical problem, with actual political consequences, not to be ignored.8 Both, therefore, merit a close examination, to which I now turn. 26

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non-identity and redressing historical injustices

2.B Two Attempts to Justify Redress following Past Wrongs, and to Overcome the Non-identity Problem: “Identity” and “Timing” Before turning to the attempts to overcome the non-identity problem, two brief preliminary remarks. First, our concern here is with historical injustices. As indicated in Chapter 1 above, I shall take “historical” to mean the following: that the original wrong has ended; that all the original wrongdoers and victims have since died; and that the debate with regard to intergenerational redress today takes place in a broadly conceived liberal democratic society, with no legal discrimination against the members of the group.9 Second, I assume that the historical injustices under consideration were severe wrongs that caused great harm to a large number of people, and that we have sufficient and precise information about these past wrongs. Once this is the scenario, auxiliary issues having to do with the magnitude of the wrongs, or issues of information that may be important in some reallife cases, will not be an obstacle here (but see Chapter 3). 2.B.1 Identity The identity-related attempt to overcome the non-identity problem is formulated as follows: some groups have a common identity that is intergenerational (call them nations or communities; the name and specific variants of the group are relatively unimportant for the needs of this chapter, as long as they meet the criteria that follow). Such intergenerational groups usually share various characteristics, such as a common culture, language, religion, shared history, and shared awareness of belonging to the group in question. These characteristics are typical, though one or more may be missing in some examples.10 One crucial characteristic is, however, that such groups have existed for many years: that is, their existence precedes the past wrong and they remain identifiable through to the present day.11 Belonging to such a group may have formal aspects (citizenship), but in some cases a less formal criterion is sufficient, for example, being identified as belonging to such a group by members and non-members alike. While difficulties of demarcation with regard to group membership always arise, let us assume for the sake of argument that such problems can be dealt with in a more or less satisfactory fashion. Membership in such groups, the argument from identity maintains, is important for the members’ sense of who they 27

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freedom from past injustices are. Such membership goes beyond one’s hobbies or profession, and is a part of one’s deepest sense of who one is. The next step in this argument is that the original wrong done to the members of the group not only harms the individual members as individuals, but also harms their identity as part of a group. The assessment that the wrong done to the original members can be connected to the identity of the group, which is intergenerational, is a crucial step. The identity argument may consequently claim that the original wrong is transformed into wrongs committed against existing group members. Such current harms may include emotional distress, and the feelings of insult and humiliation that current members of the group feel, all following the substantial harms the past wrong inflicted on the (now deceased) group members at an earlier point in time. Such feelings may remain on a fairly abstract, emotional level or they may create actual impediments to integration and success in contemporary society, even if no legal discrimination currently exists against group members.12 Note that in order to motivate such a description, the emotional attachment felt by the current members of the group towards the group’s earlier incarnation should be quite strong. The pro-redress argument from identity goes beyond a mere interest in a past wrong; we are not discussing a person who simply reads books on this past wrong or visits museums, memorials, and so on. The argument from identity goes much further, claiming that the ability of the group’s current members to function in their respective societies is harmed as a result of this identification with the victims of a past wrong. Furthermore, such an identification is not usually a matter of choice; rather, it is simply a part of who they are. This view of the identity of group members may simply be how certain scholars understand identity, but in our context it is also an essential part of how the argument from identity attempts to overcome the non-identity problem. This is so because the nonidentity problem and its effects begin immediately after the wrong and “contaminate” everything that happens after the wrong. This “contamination” effect goes as follows: given that the existence of the descendants of the victims who came into being after the wrong is causally connected to the wrong, it follows that without the wrong they would not exist; the fact that their existence is causally connected to the wrong in turn nullifies any claim to redress for the past wrong. The “identity” response must somehow avoid this “contamination” effect. In the “identity” response, if a justification for 28

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non-identity and redressing historical injustices redressing the past wrong is to be found, it must therefore be located before the wrong took place. However, as this is a historical wrong, all the victims and wrongdoers have passed away, and the current people we are discussing here (let us say, descendants of the original victims) are “contaminated” with the effects of the past wrong, and therefore with the non-identity problem. The solution posed by the identity argument is therefore simple and attractive: so strong is the emotional attachment and identification of the current members of this group with the (now deceased) members of the group who lived during the past wrong that one can almost argue that the wrong was done to the current members themselves. This is how the identity argument attempts to overcome the non-identity problem. The “costs” of the identity argument are two: first, if the original wrong was so substantial, what were the consequences for the group’s identity? Second, the considerable strength of the emotional attachment and identification felt by the current members toward the members of the group that existed at the time of the original wrong entail a view of individuals as being defined by membership in a group. These two points merit close examination, and I shall analyze both carefully in section 2.C below. 2.B.2 Timing Three scholars – Sher,13 Boxill,14 and Cohen15 – attempt to justify redressing past wrongs and, more specifically, to justify compensating the descendants of original victims of past wrongs. They argue that in cases in which the original wrongdoers failed to compensate the original victims, the duty to compensate does not disappear with the original victims’ passing. Rather, they insist, the original wrongdoers now have an obligation to compensate the descendants of the original victims for the continuing injustice of the failure to compensate the original victims, as this failure reduces the welfare level of these victims’ descendants. Why? Because otherwise the victims (i.e., parents) would have “channeled” at least some of their resources (whether those commanded had the injustice never occurred or the compensation) to their children. Call this “channeling” argument the “continuing injustice argument” or CIA.16 To the non-identity objection that persons cannot claim a right to be compensated if their existence is causally linked to the past wrong, the CIA might answer in the following way: if a given victim was already a parent at the time of the original wrong, then her or 29

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freedom from past injustices his child’s existence is not causally connected to the wrong, yet the child’s level of welfare is lower than it might have been as a result of the original wrong and the subsequent failure to compensate. Therefore, the child is entitled to compensation that would bring him or her to a level of welfare he or she would have enjoyed had the original and ensuing wrongs not occurred. In this argument, the nonidentity problem does not arise. There is a complication, however, in cases in which the children of the victims were born after the wrong, that is, during the continuing wrong of the failure to compensate the parent(s). In such a case, the original wrong or the continuing wrong may be causally connected to the birth of the child, thereby raising non-identity problems. If, however, the children of the victims were born before the original wrong, the argument seems impervious to the non-identity problem, as the wrong is not causally connected to the existence of the children, grandchildren, or other descendants of the original victims. This is why “timing” is crucial to this argument. Having presented the “identity” and “timing” attempts to overcome the non-identity problem, we can now examine whether these two attempts can successfully overcome the non-identity problem. We will also investigate whether there are reasons beside the nonidentity problem to reject these two attempts to justify redressing past wrongs.

2.C Examining the “Identity” and “Timing” Arguments’ Attempt to Justify Redressing Past Wrongs This section is divided into two parts. The first will examine the attempts by the “identity” and “timing” arguments to overcome the non-identity problem;17 the second will examine whether the “identity” argument successfully justifies redressing past wrongs visà-vis additional (i.e., non-“non-identity”) challenges. The “timing” argument will be further examined in Chapter 3, as it merits a much more comprehensive analysis (aside from its attempt to overcome the non-identity problem). 2.C.1 Identity, Timing, and the Non-identity Problem 2.C.1.1 The “Identity” Argument Attempt to Overcome the Nonidentity Problem Can the identity argument overcome the non-identity problem? Let us carefully examine this attempt. The identity argument’s attempt to 30

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non-identity and redressing historical injustices overcome the non-identity problem, briefly stated, is that the current identity of contemporary members of a given group is strongly connected to the group; the past wrong done to past members of the group thus triggers an ongoing emotional/psychological harm to the current members of the group (following their group membership).18 The present-day group is essentially unchanged from the pre-wrong era, at least to the extent that past and current members can plausibly be considered to belong to the same group.19 The identity argument claims that as the focus is group identity, and as this group’s identity precedes the wrong, the non-identity problem does not affect the (wronged, group-centered cultural) identity of current members of the group. The challenge is to see whether the identity argument succeeds in shielding itself from the effects of the non-identity problem. The key point here is the identity of the group itself. If the cultural identity of the current group’s members is strongly connected to the group, and the group’s identity is identical (or, let us say, sufficiently similar) to the identity that preceded the wrong, the identity argument scores an important victory. If, however, the group’s identity today is different than it was at the time of the wrong, the “identity argument” fails; it is no longer possible to argue that the harm done today to the group’s members is the result of the harm done to the group members at the time of the wrong, as it is not the same group anymore. Here the identity argument faces a major challenge. First, many scholars doubt such descriptions of group identity, certainly in liberal democratic societies. Such theorists will view such static views of the identity of group members as highly implausible, and will argue that current identities are flexible, cosmopolitan, hybrid (these are some of the terms used), but certainly not defined by group membership.20 Second, the identity argument emphasizes the magnitude of the original wrong. So substantial was the original wrong that it not only harmed group members at the time of the wrong, but continues to harm members in the present day. According to the argument from identity, even the memory of this past wrong is enough to harm current members of the group and create great difficulties for them. The identity argument would find it difficult to downsize the magnitude of the original wrong, as it would then become less plausible to argue that the effects of the wrong are felt to the present day.21 But this emphasis on the magnitude of the original wrong creates a problem for the identity argument from a different direction. Such an important an event must have had certain effects on the cultural 31

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freedom from past injustices identity of the group and on group members at the time of the wrong. Mass movements of people, large number of deaths, territorial changes – these are massive changes that find expression in literature, music, and many other cultural channels. My point is that major past wrongs changed not only the specific genetic identity of the biological descendants, but also the cultural identity of the group. The identity argument’s attempt to overcome the non-identity problem dismisses the fact that the wrong affected the genetic identity of the descendants of the original victims and emphasizes the related (cultural) identity of the current members as the crucial factor. But if the group’s (cultural) identity changed, either because group identities are not stable or following the wrong, the nonidentity problem affects the (cultural) identity of the group. In other words, it is unlikely that such a massive past wrong left the group’s (cultural) identity unchanged. If it indeed changed (as it is plausible to claim), then the non-identity problem arises in the following way: the existing group members’ (cultural) identity differs from the (cultural) identity of the members at the time of the wrong and is causally connected to the wrong. If the wrong had never happened, the (cultural) identity of the current group members would be – well, it is impossible to answer this question. We simply do not know. The current (cultural) identity of the group members stems directly from the wrong, and unless this group’s cultural identity is absolutely miserable, the original wrong that brought about the current cultural identity improved the situation of the group members’ cultural identity; otherwise, it would not exist at all. In an alternate version, the original wrong did not harm the current group’s (cultural) identity, as there is no sense in comparing an existing identity to a nonexistent one. To put this argument in different words, the harm done to the pre-original injustice group members will not be damaging to any social group in which any contemporary member (person) has a stake, and will not therefore affect any contemporary person’s interests, as these are different groups.22 The identity attempt to overcome the non-identity problem therefore fails, and we move on to the next attempt, the “timing” argument. 2.C.1.2 The “Timing” Argument’s Attempt to Overcome the “Non-identity” Problem The second attempt to overcome the non-identity problem focuses on the timing of the wrong vis-à-vis the existence of the descendants of the victims. This attempt poses a substantial challenge to the non32

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non-identity and redressing historical injustices identity problem. Let us briefly repeat the argument from “timing”: a past wrong takes place and victims suffer a major harm. Some of them already have children during the time of the wrong. The children now suffer two harms (the argument goes): the first, the original wrong itself; the second, their parents’ diminished ability to provide resources they would otherwise have been able to provide. This latter setback is the key to the “timing” argument. This is so because the consequences of it continue even once all of the original victims of the original wrong have died, including the aforementioned children. Why? Because the inability of the parents to pass on to their children whatever resources they would have had if the wrong had never occurred influences the welfare level of their children. This, in turn, influences the children’s ability to pass resources on to their children, and so on. As long as neither the historical wrong nor the ongoing injustice of lack of compensation to the descendants has been redressed, the argument about timing may succeed in avoiding the non-identity problem and demonstrate that there are indeed intergenerational bad consequences to the past wrong. There may be reasons to be skeptical about the “timing” argument aside from the non-identity problem, and some will be addressed in Chapter 3, below. Here, however, I would like to focus on the relationship between the timing argument and the non-identity problem. The key to the “timing” attempt to avoid the non-identity problem is the existence of children at the time of the wrong. The inability of the parents to pass on to their children whatever resources they would have given them had the wrong never occurred is not vulnerable to the non-identity problem, as these are persons who existed at the time of the wrong, and as the consequences of the wrong are not limited to persons living at the time of the wrong, but are intergenerational. It seems that the “timing” argument scores several good points against the non-identity problem, and makes a substantial step toward justifying redressing past wrongs. However, at least two points are relevant nonetheless. First, the “timing” argument is limited to children who already existed at the time of the wrong. This is important. The “timing” argument does not apply to persons who were not yet born at the time of the original wrong. This is so because the wrong is a major one, changing a sufficient number of variables in the living conditions of the victims; their descendants born after the wrong are hence different to the alternative descendants who 33

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freedom from past injustices would have been born had the wrong never occurred. The “timing” argument is thus relevant only to the pre-existing children who suffered both from the original wrong and from the diminished capacity of their parents to pass on to them whatever resources they would have received had the wrong never occurred.23 There may be some confusion regarding this point, so perhaps another clarification is in order: it is true that the wrong did not affect the existence and identity of the (now deceased) original victims, but it did affect the existence of all their descendants born after the wrong, as they would not exist had the wrong not occurred. The potential claim by a given descendant that “without the wrong I would have had more resources,” makes no sense if without the wrong the claimant would not have existed. The issue is therefore not the diminished ability of the (now deceased) original victims to pass on resources to their children, but the fact that the entitlements of their descendants (born after the wrong) to compensation are nullified as a result of the non-identity problem – as compensation is the result of the wrong, yet without the wrong the descendants born after the wrong would not have existed – so we do not have a relevant counterfactual.24 The conclusion is that the “timing” argument is limited in its ability to defeat the non-identity problem, as it applies only to a specific population among the descendants of the original victims. In short, children of original victims born after the wrong are affected by the non-identity problem and are hence not eligible to compensation following the past wrong. A second comment presents a more controversial challenge to the “timing” argument’s attempt to overcome the non-identity problem, as follows. Suppose that we have a child born two years before the original wrong; let us call her Sarah. Suppose further that the wrong harms her and her parents; and that the wrong diminishes her parents’ ability to provide her with certain resources; and that the wrong is never redressed. Jumping forward in time a bit, let us imagine that Sarah is now older, with children of her own. Her ability to pass resources on to her children is diminished because of the resources that are “missing” as a result of multiple harms: the original wrong and its material and non-material consequences; the diminished capacity of her parents to provide her with resources; and the continuing wrong of the failure of the wrongdoers to compensate her. Eventually Sarah passes away, and her children likewise suffer the consequences of her diminished capacity, making this an inter34

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non-identity and redressing historical injustices generational wrong from the perspective of the timing argument (but see Chapter 3). My interest here concerns the non-identity problem, as follows. It seems likely that Sarah’s life was influenced by the original wrong done to her and to her parents, even if she was too young to remember it. The diminished capacity of her parents to provide for her surely played an important part in her life as well. Such events and occurrences are important, and they are felt in family life, conversations, complaints, habits, and so on. It is hard to imagine that these would not have a significant influence on her life. If the original wrong had never occurred, she would certainly have grown up to be a very different person, even if her existence is not causally connected to the wrong. Of course, our interest in this chapter is not Sarah herself, as her eligibility for compensation is not disputed; our interest is in her descendants and their eligibility for redress. Following this description (and similar scenarios) proponents of the “non-identity” problem may reasonably argue that the “timing” argument is not impervious to the “non-identity” problem. Sarah’s life has been deeply influenced by the past wrong, and her children’s existence has very likely been influenced as well. The choice of her partner, the timing of her decision to have children, and many other choices, are all connected to the wrong in some fashion. A minimal conclusion is that we can agree that the manner in which the wrong affected her life is a matter of degree. The stronger the influence of the past wrong on Sarah, the more plausible it is that the past wrong is causally connected to her children’s existence. In other possible scenarios, the past wrong remains in the background and Sarah conducts her life without giving it much weight; in this case, her children’s existence is not causally connected to the wrong. The various wrongs she suffered become variables among many other “background” variables that create her identity. We do not need to rule in favor of one “story” between the two just presented about Sarah: whether the past wrong dramatically changed her life, and therefore is causally connected to the existence of her children (raising the non-identity problem); or whether the past wrong remained in the background, merely influencing her life, but without being causally connected to the existence of her children. We can agree, however, on something more modest: that in some cases, the existence of the victims’ children is causally connected to the past wrong, even if the existence of the victim herself/himself precedes the wrong. This further limits the ability of the “timing” 35

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freedom from past injustices argument to avoid the non-identity problem; we therefore exclude from eligibility to redress not only descendants born after the wrong, but also some descendants of victims who were parents at the time of the wrong.25 2.C.1.3 The “Identity” Approach and Past Wrongs, Non-“non-identity” Critiques In this subsection the goal is to reflect on the “identity” attempt to justify redressing past wrongs not through the prism of the nonidentity problem, but from various additional perspectives. After all, the identity argument was not created solely in order to answer the non-identity problem; rather, it was created as an attempt to justify redressing past wrongs. It is thus intriguing to examine it in contexts other than the non-identity problem. Specifically, I would like to focus on one important aspect of the identity position, and that is the strong claim that the “identity attempt” raises with regard to the defining connection between the contemporary members of a given group and the wrong done to the members of this group (if this is indeed the same group) who were alive at the time of the original wrong (as described in section 2.A above). Following this strong claim are two puzzling factors in the “identity” position: first, its empirical likelihood and, second, its philosophical implications. I will examine both, beginning with the empirical likelihood of this strong identity-related connection between contemporary members of this group and the members of the group at the time of the past wrong. This empirical aspect of the “identity” attempt to overcome the non-identity problem makes some observational claims. At least two are noteworthy: first, that the cultural identity26 of the current members of this group is strongly connected to the cultural identity of the group members at the time of the wrong; and, second, that the harm done to the members of the group at the time of the original wrong affects the current members of the group to such an extent that it decreases the likelihood of such members succeeding in their current societies. Even if we grant that groups, and group belonging, are important,27 the assumptions of the “identity” approach may be excessively strong. They are also sensitive to the actual conduct of group members: do such current members keep up with the group’s culture? Are they mixing with non-group members? Are they substantially less likely to succeed today than other members of the society? 36

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non-identity and redressing historical injustices Assuming the answer to the last question is affirmative, can this be explained by their identification with the past wrong or perhaps with more mundane considerations, such as the quality of public schools in location X?28 At the very least, it is plausible to argue that these empirical claims are sensitive to the passage of time, counting from the original wrong. If the background conditions are those of a liberal society, social integration and marriages with non-group members alone will be sufficient to raise reasonable doubts with regard to the empirical assertions of the “identity” approach, as will the greater success of some members of this group in the society (as then the likelihood that other variables, rather than “identity”-related causes being the root cause of the lack of success of some members of this group, will increase). Simply put, the further we are from the wrong, the empirical claims crucial to the success of the “identity” approach will appear decreasingly plausible.29 Let us move on to the philosophical implications of the “identity” approach. The strong identity-related claims of this approach rely on the following three assumptions: the continuation of the group over an extended period of time; the centrality of the group to the members’ identity; and the relative force the past wrong has exerted in the lives of contemporary members (e.g., creating actual hurdles to successful integration). At the heart of these three claims lies a specific view of the “person” that the “identity” approach, it seems, has to adopt. This view of the “person,” as strongly connected to a given community and perhaps even defined by his or her community, has deep roots in European political thought and is advocated by thinkers such as Fichte30 and Herder.31 This is not the place for a systematic examination of these scholars, nor do I mean to use this connotation in a pejorative sense. However, such a view of the “person” is too important to the “identity” view to remain solely in the rather narrow framework of overcoming the non-identity problem and justifying redressing past wrongs.32 At least two noteworthy philosophical implications of the identity’s approach toward the “person” are worrisome. The first is that such a strong collectivist view of personal identity is in tension with the more relaxed33 views of liberal societies with regard to intergroup relationships and integration. It is one thing to advocate redress for past wrongs for the benefit of descendants of deceased victims of past wrongs, many of whom were targeted because they belonged to specific groups; it is a different thing altogether to advocate a version 37

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freedom from past injustices of group identity that (ironically) might make it difficult for current members of such groups to successfully integrate in their respective societies, by emphasizing the continued strength and importance of group membership to the degree that disassociation from one’s group becomes almost impossible. Note that the “identity” approach has to adopt this view of the “person,” otherwise it would weaken its proredress stand; the strength of one’s connection to one’s community lies at the heart of the identity approach’s attempt to justify redress. The second philosophical implication of the identity approach toward the “person,” is that the strong group identification required for a successful “identity”-related redress argument may raise more general questions about groups and persons. If one’s identity is defined by one’s membership, surely it influences other aspects of one’s behavior and beliefs. A careful conclusion might be as follows. In order to justify redressing a past wrong, the “identity” approach overemphasized the importance of group membership. This emphasis may be incompatible, in various ways, with the goal of redressing a past wrong, which is supposed to achieve not only corrective justice, but also fuller integration for the current members in order to achieve a better liberal society. Such identity-related claims, to conclude, are not a light switch, easily turned on and off. Once the image of a “person,” as defined by her or his group membership, lies at the heart of a given political theory, let alone the legal system,34 it cannot easily be withheld from other parts of a more complete political theory and liberal society. It is probably better to move in the other direction: to waive this view of the “person” and the “identity” attempt to justify redress, rather than trying to construct a political theory that follows this view of (redress enabling) personal identity (and see also Chapter 4, where an examination of other, more subtle, group centered approaches are examined).

2.D Conclusion This chapter examined the non-identity problem and two attempts to overcome it or avoid it. The conclusion reached was that the first attempt, “identity,” failed both in its attempt to overcome the non-identity problem and following several additional arguments. The “timing” argument, however, offers a much more challenging pro-redress argument, both following its attempt to avoid the nonidentity problem and due to its individual-based logic, thus avoiding much more complex collective-based argumentation. The timing 38

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non-identity and redressing historical injustices argument (and some additional individual-based pro-redress arguments) therefore merits a systematic examination beyond the nonidentity problem, which will be the focus of Chapter 3.

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Chapter 3

Against Redress (1): The Individualistic Perspective

A. Some (necessary) preliminary definitions and distinctions: compensation, restitution, and “setback” compensation. B. The “continuing injustice argument”; a description. C. Under a magnifying glass: examining the “continuing injustice argument”: restitution; compensation; information-related problems. The goal of this chapter is to examine closely the most recent, and important, attempt to justify redressing past wrongs, and, more specifically, to justify offering monetary compensation to descendants of deceased victims of past wrongs. I started to examine this argument in Chapter 2 above in the context of the non-identity problem, however, this is perhaps the most successful attempt to justify intergenerational redress and it merits a comprehensive examination aside from the analysis offered in the context of the non-identity problem. This individualistic-based argument was suggested by several scholars, and I shall refer to it as the “continuing injustice argument” (CIA). The CIA attempts to avoid some well-known objections to compensation, such as the non-identity problem and counterfactual problems, and it is advocated by some of the most important scholars writing on the subject of past injustices, including B. Boxill and G. Sher. It is therefore intriguing to examine how some of the main figures working on this topic seek to justify such compensation. My aim is not to simply describe the most recent development in the ongoing conversation about redressing historical injustices, but, rather, I shall offer a somewhat skeptical view of the attempts to justify such material redress. Specifically, and directed against the most recent and perhaps compelling justification for such redress, I shall offer a critical analysis of the CIA, and argue that it fails to justify redressing past injustices. Explaining why, however, will require some complex steps. To briefly describe this argument: three scholars – Sher,1 Boxill,2 40

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the individualistic perspective and Cohen3 – have attempted to justify compensating the descendants of an original victim4 of past wrongs. They argue that in cases in which the original wrongdoer failed to compensate the original victim, the duty to compensate does not disappear with the original victim’s passing. Rather, they insist, the original wrongdoer now has an obligation to compensate the descendants of the original victim for the continuing injustice of the failure to compensate the original victim, as this failure reduces the welfare level of the descendants of the original victim. Why? Because the victim (the parent) would have “channeled” (my expression) at least some of the resources (either the resources he or she would have commanded had the injustice never occurred, or the compensation itself) to his or her children. The three scholars claim that their argument avoids nonidentity and informational problems, especially some counterfactual problems. I shall argue that the CIA argument,5 while important in ways that will be discussed below, fails to achieve their goal, which, as I understand it, is to justify the compensation of the descendants of deceased victims of past wrongs. My strategy, while involving some complex steps, is basically straightforward and simple. I shall argue that a rigorous assessment of the different factors, or aspects of the CIA, will demonstrate that the CIA does not achieve its own stated goal. In order to show why, we shall need to carefully examine five main factors: first, the status of the descendants of the original wrongdoer; second, the responsibility of the victim’s descendants; third, the importance of the level of welfare of the victim’s descendants on their eligibility for compensation; fourth, the role played by third parties (not related to the original wrongdoer or his or her descendants) in the situation of the victim’s descendants; and, fifth, several information-related issues. Each one of these factors will be carefully analyzed, with the conclusion that the CIA’s attempt to justify compensation for past wrongs does not succeed. The chapter will be constructed in the following way: section A introduces the following preliminary issues: a brief reminder of my usage of the terms “historical injustice,” “compensation,” and “restitution,” and, as an introduction to the CIA, a succinct description of the major arguments against redressing past wrongs that the CIA attempts to overcome, or avoid. Section B introduces the CIA in detail. Section C introduces the five factors listed above and analyzes them carefully, while noting their importance vis-à-vis the CIA. 41

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freedom from past injustices

3.A Some (Necessary) Preliminary Definitions and Distinctions This section introduces the following necessary preliminaries: a quick reminder regarding the appropriate definitions of historical injustices, compensation, and restitution; and as an introduction to the discussion of the “continuing injustice argument” (section 3.B) some well-known objections to redressing historical injustices that the CIA attempts to avoid. 3.A.1 A Brief Reminder: What are Historical Injustices, Compensation, Restitution, and Setbacks in Welfare, and the Arguments leading to the CIA? In this section I would like to briefly recapitulate some main terms that were introduced in Chapter 1 above. As they will be central to my analysis here, I shall briefly remind the reader of the specific ways in which they are used here. First, historical injustices are major cases of past wrongs, in which all the original wrongdoers, and all the original victims, have since passed away. Second, “compensation” will be used here following Nozick’s famous definition: bringing the victim to a level of well-being that he or she would have enjoyed had the wrong not occurred.6 The advantage of Nozick’s definition is that it nicely captures a strong moral intuition: that if A wronged B, B will be fully compensated if, following the compensation, his or her well-being is at the level that it would have been had the wrong never occurred. Two important aspects in our context of this definition are: first, the exact nature of the wrong is immaterial as long as there is monetary value to the wrong. Wrongs that do not have monetary-related consequence (such as apologies), or that involve non-measurable goods (at least following the perspective of the victim), such as religious artifacts or sacred land, raise a series of complex issues, and are outside my discussion in this chapter. Second, and most important, throughout this chapter and this book, I shall strictly distinguish between: (1) the argument that the descendants7 of the original wrongdoer ought to return to the descendants of the original victim whatever identifiable property8 that was unlawfully taken from the original victim by the original wrongdoer and passed on to the descendants of the original wrong42

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the individualistic perspective doer; and (2) the argument that descendants of the original victim deserve compensation for setbacks in welfare9 (if it is) caused by the ongoing failure to compensate them. Now, compensation following setbacks in the welfare of the descendants of the victim is the main idea of the CIA, as discussed in the introduction to this chapter (and see sections B and C). However, restitution/return-style requests are less familiar and require some preliminary remarks. Requests for return are restitution-type requests. They have two typical features: the justification for a restitution claim is the unjust enrichment of person A following some interactions that included, or are connected to, person B, and the remedy is the extent of the unjust enrichment of A (that A ought to return to B) – no more.10 Arguments about “setback in welfare” compensation, and restitution-style arguments are very different in ways that are important for my analysis below, for the following reasons: the identity of the claimant and that of the payer may be different in both cases; the type of remedy may be different; and the effect of the passage of time may be different in each type of case. It is therefore important to distinguish between these two types of claims. Explaining those issues will be an important part of my analysis in section C below. Now, the Nozickian definition of compensation given above encompasses both restitution/return-style arguments and setbacks in welfare-style arguments, as both (or only one) may be required in order to bring a victim to a level of well-being that she or he would have enjoyed had the wrong not occurred. In order to distinguish between the overall Nozickian compensation and compensation for setbacks in welfare, and to avoid linguistic confusion, whenever I mean the overall Nozickian compensation I shall indicate “overall compensation” or “overall Nozickian compensation,” whereas in other cases “setback compensation” will be used. However, in some cases, when the meaning is more general, as in some sort of policy that aims to correct past injustices, I shall use “redressing,” “correction,” “rectification,” or “remedies,” depending on the context. 3.A.2 Some Famous Objections to Intergenerational Redress Having clarified these basic terms, I would like to present why the CIA is such an important argument. In order to do so, we need to describe some objections to intergenerational redress that the CIA 43

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freedom from past injustices attempts to avoid or overcome (and in some cases, successfully), making it perhaps the most important pro-redress argument. Suppose the following: A wronged B. Assume that we have full information about the identities of A and B, and no reason to doubt that the wrong actually took place. A then fails to compensate B. Let us assume that we have all the relevant information about what constitutes adequate “Nozickian” compensation. Eventually A and B both die. Suppose, too, that A and B are not individuals, but each actually stands for a large number of people. At this point, the event (following the definition given above) becomes a historical injustice and the issue of redress arises, although who are the claimants and who are the payers is as yet unclear. Indeed, many theorists argue that even if the wrongdoers and the victims have died there is something troubling in simply ignoring this injustice, and I think that their intuition is at the very least noteworthy – there is something troubling in simply saying: we may study past events, build memorials, but no material remedies are justified once all the victims and wrongdoers have died.11 However, this intuition merely points that there is a need for further argumentation – so consider the following. If the wrong that was done to B happened, let us say, at least three generations ago (i.e., the children of both A and B are now adults with children of their own), and the event was significant enough, arguments that attempt to justify (overall) compensating the descendants of B have encountered several objections, some of them well known. My goal in this section is to introduce the main arguments against (overall) compensation, then, in section B below, to show how the CIA attempts to avoid at least some of these classic objections, and therefore, or so I believe, it is important to carefully analyze the CIA. The very succinct presentation of these classic objections offered below, therefore, is not intended to offer a new way to answer them, but is required in order that the importance of the CIA will become clearer. (1) Many of the descendants of B (the victim) would not have existed in an alternative world in which the wrong never occurred. Therefore, any attempt to (“overall”) compensate the descendants of B would face the familiar objection: that the descendants of B do not exist in an alternative world in which the wrong done to B never occurred, as discussed in detail in Chapter 2, above. As compensation means (following Nozick’s influential definition as discussed above) bringing the victim to a level of well-being that she or he 44

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the individualistic perspective would have enjoyed had the wrong not occurred,12 it is impossible to compensate the descendants of B. (2) Even if we assume that there is an alternative world in which B (the victim), and the descendants of B exist, and the wrong never occurred (i.e., ignoring the previous argument13), then the numerous possibilities of acts that B and his or her descendants could have chosen is so large, and the events that might have happened in those alternative realities are so numerous, as to create a large number of alternative realities to which we can compare our own reality. This transforms the (“overall Nozickian”) compensation of the descendants of B into an implausible game of guesses, because we do not have a plausible counterfactual.14 (3) As both the original wrongdoers and the victims have passed away, any attempt to rectify a historical injustice, either by “setback” compensation or restitution, will, by definition, involve parties that are not directly connected to the wrong. To put it formally, there is a double decoupling of wrongdoer/payer and victim/claimant.15 This double decoupling raises questions with regard to the potential justifications of both eligibility to “setback” compensation and/or restitution, and, more importantly, the issue of who should bear the costs connected to such policies. (4) Lastly, as the past is full of historical injustices, any attempt to suggest correction of past injustices should explain why some injustices should be corrected, while others should not. This goes back to Robert Penn Warren’s famous statement, quoted once already in this book, but it merits a second airing: the whole notion of untangling the “debts” of history smacks of fantasy. Would the descendants of an Athenian helot of the fifth century bc, assuming that such a relationship could be established, have a claim today on the Greek government? Would the descendant of a mill girl, in Lowell Massachusetts, who died of lint lungs in 1845, have a claim on Washington DC, in 1965?16

These four arguments are not the only arguments that were suggested as a critique of justifications for redressing past injustices, but they are important for our discussion as they are the arguments to which the CIA aims to respond. These are serious and famous arguments, and if indeed the CIA succeeds in avoiding them, or providing an answer to them, and is convincing in and of itself, then the pendulum of the ongoing conversation with regard to correction of past injustices will swing toward a normative justification for correction 45

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freedom from past injustices of past injustices. The CIA is therefore well worth our attention. The following section describes the CIA, and how it attempts to avoid these famous objections.

3.B The “Continuing Injustice Argument” In this section, I aim to present the continuing injustice argument. The next section (section C) will present my critique of this argument. The continuing injustice argument was created in order to avoid the problems identified in the previous section, and to justify redressing historical injustices – to bring the pendulum to the side that justifies redress so to speak. As the background is now properly presented, we can turn to a careful examination of the CIA. Suppose the following: A wronged B,17 we have full information about the identity of A and B, and all the relevant information about the wrong. A fails to compensate B. As time passes, the failure of A to compensate B becomes a continuing injustice (as distinct from redress for the original wrong), that is, the continued failure of A to compensate B. Let us suppose that at the time of the original wrongdoing, B was a parent.18 If the wrong done to B was significant enough, A’s continued failure to compensate B will have a corrosive effect on the welfare of B’s children. As long as A fails to compensate B and his or her children, the injustice is passed on to B’s children, grandchildren, and so on.19 If B dies, the injustice continues. At this point, the injustice is no longer the original wrongdoing, but rather A’s continuing failure to compensate the descendants of B for their lower level of welfare,20 which the CIA claims stems directly from A’s failure to compensate B and then his or her descendants. The CIA may face an objection here that: a wrong done to a parent (B), does not mean that the wrongdoer wronged B’s children. The wrong was done to the parent – how do the children enter the picture? If C, D, and E worked for B (the victim/parent in our example), and following the wrong, B was forced to close his business, do C, D, and E have a valid claim against the wrongdoer too? And their children? It is plausible to argue that there is an issue of remoteness here, as it is easy to imagine by-products of many wrongs (as in the example just given of B’s – the victim – workers and their children).21 A crucial part of the CIA is therefore to claim that children are a special case of third parties, and to claim that the victim (B, the parent in our example) is connected to his or her children such that 46

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the individualistic perspective the injustice is passed from the victim to his or her children. Why? The CIA claims that the victim would plausibly have devoted some of the resources he or she would have owned had the wrong not done to him or her, or if he or she were compensated, to the support of his or her children. To put it in another way, this is a counterfactual, relying on an implicit empirical description of the way parents use their resources in our world – and how they usually use some of them to support their children.22 This supportive argument of the CIA, of the connection between parents and their children, raises some questions, but at this point I merely present the CIA, and I shall go back to this counterfactual in section C below. Note, that the CIA emphasizes the decreased ability of victims to provide a certain level of welfare for their children following the wrong and the failure of the wrongdoers to provide redress. This is a “setback in welfare” compensation-style claim. The CIA, to the best of my understanding, does not explicitly discuss restitution-style claims. However, my goal here is wider than simply an evaluation of the CIA, rather, it is to examine the force of requests made by descendants of deceased victims of past wrongs in an honest fashion, and restitution-style requests are an important aspect of the claims made by descendants of victims of past wrongs. I shall therefore discuss both types of claims in section C below. The CIA introduces a “family line” type of argument:23 by attempting to demonstrate that the descendants of victims are directly influenced by the original wrong and its consequences, it attempts to avoid some of the objections described above (section A). This attempt to avoid those objections merits a short explanation. First, the non-identity problem. The continuing injustice argument may answer to the classical non-identity objection that persons cannot claim a right to be compensated24 if their existence is causally linked to the past wrong in the following way: if victim B was a parent at the time of the original wrong, then the child is not causally connected to the wrong, yet that child’s level of welfare is lower than it might have been, because of the wrong. Therefore, the child is entitled to “overall” compensation, and the non-identity problem does not arise. There is a complication, however, in cases in which the children of the victim were born after the wrong, that is, during the continuing wrong of the failure to compensate the parent. In such a case, the original wrong may be causally connected to the birth of the child, therefore raising non-identity problems. If, however, the children of the victim were born before the original wrong, the CIA 47

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freedom from past injustices is not vulnerable to non-identity problems (but see some further considerations explained in Chapter 2). Second, the counterfactual problem. The counterfactual problem is as follows: as time passes since the original wrong, the hypothetical activities of the descendants of the victims, and political and social events as a whole, may vary greatly in any alternative reality to which the counterfactual points. Any attempt at “overall” compensation therefore will meet the following challenge: which alternative reality is the proper one against which our reality should compare and then correct itself? The CIA may offer the following answer: a counterfactual is indeed required, but it is a fairly simple counterfactual. We need to know what is the overall compensation to which the original victim was entitled, then assume what is the reasonable portion that would have been dedicated to support the children of the parent/ victim, and that’s that. What happens during several generations? Here the CIA may answer in the following way: for each generation, the relevant counterfactual is the generational counterfactual, not the original counterfactual that follows the wrong. The relevant counterfactual is therefore the amount of “overall” compensation to which the relevant generation is entitled, not the “overall” compensation for the original wrong, which is indeed very difficult to calculate (guess?) after several generations. Here, however, the CIA may face information-related problems nonetheless, and I shall return to this point in section C below. Third, the double decoupling of wrongdoer/payer and victim/ claimant. Attempts to justify compensation for historical injustices face the problem that, as the wrongdoers and the victims have died, the policies suggested would be applied to non-victims and nonwrongdoers. This makes this whole endeavor seems rather doubtful – are such policies desirable? The answer the CIA may provide is that there is no decoupling between the victims and the claimants: while the original victims have passed away, the descendants of the original victims are victims as well: as their welfare is reduced following the continuing injustice of lack of compensation. This still leaves the decoupling of the wrongdoer/payer intact, and I will return to this important point in section C below. Fourth, picking and choosing among past injustices. Here, the CIA will probably claim that not all historical injustices should be corrected, rather, under the CIA at least, only those that have identifiable consequences to the present should be corrected. This means, however, that the CIA is not a case of a historical injustice, but that 48

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the individualistic perspective of an ongoing injustice (or at least on going consequences) – I shall go back to this point below. Now that the motivation for the creation of the CIA is (I hope) clear, and the structure of the CIA and its importance have been introduced, we may turn to a careful examination of this argument.

3.C Under a Magnifying Glass: The “Continuing Injustice Argument” Suppose the following: A wronged B,25 and A fails to redress the wrong. B is a parent,26 and his or her parenthood preceded the wrongdoing. The failure of A to “overall” compensate B has reduced B’s ability to ensure a certain level of welfare for his or her children. Then, A and B both die. Let us suppose that A has children (or beneficiaries) too.27 In order to evaluate the claims of B’s descendants to “setback” compensation and/or their eligibility to regain whatever was wrongly taken from B (restitution), we need to analyze the following factors: (1) the claims of A’s descendants to a stable continuation of their life (this point will be divided to several subpoints; see below); (2) the responsibility of the descendants of the victim for their own lives; (3) the descendants of the victim who have reached a certain level of welfare; (4) the interventions of unrelated third parties; and (5) information-related problems relating to points 1–4 above, as well as to the counterfactual of the hypothetical increase in welfare that victim B’s descendants would have enjoyed had the original and/or continued injustice never occurred (or if compensation would have been offered). My conclusion will be that a careful consideration of both points 1–4 and the informational problems will lead to the conclusion that the case for “setback” compensation and restitution under the CIA approach is rather minor. 3.C.1 Return/Restitution: The Claims of the Descendants of the Wrongdoer to a Stable Continuation of Life In the definition of historical injustice used in this book, all the wrongdoers have died. The question of who, therefore, should bear 49

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freedom from past injustices the responsibility for “overall” compensation owed (if it is) to the victims and their descendants arises. Here the distinction between restitution claims and “setback” compensation, introduced above, becomes important. There are two different issues here: whatever property that is the result of the wrong and was passed to the descendants28 of the wrongdoers, so unjustly enriching them; and the different issue of the “setback” in welfare suffered by the descendants of the victims (to be discussed in section 3.C.2 below). In this subsection I am interested in restitution-type claims, that is, in unjust enrichment only, as I think that the two subjects ought to be separated. The reason is that the descendants of the wrongdoers share no responsibility for the setback in welfare of the descendants of the victims – this is the result of the wrong, and the children of the wrongdoers took no part in the wrong. The descendants of the wrongdoers may, however, be unjustly enriched if property that followed the wrong was passed to them. This subsection focuses on this unjust enrichment. So, suppose that we have identified descendants of wrongdoers, let us say, the third generation from the wrong, and we find that they were unjustly enriched as a result of the wrong. Suppose further, that we can identify the descendants of the victims, so a restitution claim has adequate claimants (in real-life cases we may encounter information-related issues here, and see section 3.C.3 below), what should be done in such a case? The answer should be, I think, that those benefiting from the unjust enrichment that followed the wrong should return to the descendants of the victims the extent of the unjust enrichment. This conclusion, however, faces several major challenges, or perhaps limitations, to this conclusion as follows. (1) I will begin with the most difficult scenario: the descendants of the wrongdoers live on a territory that originally belonged to the victims. A restitution claim will take their land from them, and will leave them with no land and with no place to go to. The descendants of the victims would like to have their land back. What should be done? This is not an imaginary case, in the famous Mabo decision29 the judges discussed a similar scenario,30 and concluded that the basic principles of the state are not vulnerable, or subject, to restitution-style claims.31 To use Waldron’s famous formulation, the circumstances have changed, the descendants of the wrongdoers have vital interests connected to their land too, the number of people involved is large, a policy that would return all the relevant land 50

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the individualistic perspective to the descendants of the victims only would harm many existing people, and the injustice is therefore superseded.32 The descendants of the wrongdoers are entitled, therefore, to a reasonable ability to continue their lives, that is, not to be exiled, deported, have all their property confiscated, etc.33 I am not including here reasonable setbacks in welfare that would potentially follow from returning whatever belongs to the descendants of B (the victims) – the fact that the basic wrong of taking the land was superseded does not mean that all the wrong is superseded.34 Note, that the CIA is defeated here not by one of the four arguments introduced in 3.A above, and, indeed, the supersession argument is not one of the arguments that the CIA, to the best of my understanding, attempts to avoid. (2) The second limitation to restitution claims is perhaps obvious, but needs to be indicated: the descendants of the wrongdoer are entitled to the fruits of their own labor, unconnected to the wrong done by A.35 They are responsible only to the extent of their (potential) unjust enrichment, no more, and we should be careful not to confuse this point with any concept of responsibility vis-à-vis the act that was not committed by them.36 (3) Moving to a slightly more controversial limitation on restitution claims: the descendants of the wrongdoer should return to the descendants of the victim whatever property they inherited from the wrongdoer that unjustly enriches them. But they may inherit property that the wrongdoer gained lawfully. Such property was unconnected to the wrong done to the original victim; the wrongdoer has accumulated it, and decided to pass it on to her or his children, and they passed it to their children, etc.37 Such property should not be subject to restitution claims. Why? Suppose the wrongdoer was still alive (and this was not a historical injustice case), and she or he were to, let us say, lose the stolen resources (whether money, property, etc.), and then to gain an equal amount of resources after losing the stolen property, it may be justified to expect him or her to compensate the victim with the latter property. But since the wrongdoer has died, and the descendants are at no fault for the wrong, I do not see how expecting them to return the property justly accumulated (“the latter property” in our example) by their father (or grandfather etc.) following a wrong the descendants did not commit can be justified.38 Running the danger of stating the obvious: if the wrongdoer did not pass to her or his descendants whatever property she or he unlawfully obtained from the original victim, the wrongdoers’ descendants 51

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freedom from past injustices are free of any material obligation toward the descendants of the victim.39 (Note: the descendants of the wrongdoer may feel a certain affinity toward the descendants of the victim, and may act in certain ways following such feelings, but such a scenario is completely different, and best kept separate, to issues of moral responsibility, and even more so legal responsibility.) (4) A final limitation of restitution claims argued by some scholars, and I concur, is that property rights are not stable,40 rather, they fade away over time.41 In other words, the descendants of the original wrongdoer may develop a justified property claim42 to the (originally) unlawfully gained property they have inherited. Their continued usage of such property, the changes they brought to this property, its centrality in their lives, the extra value their work added to this property, the fact that in many cases the original property does not exist anymore, and their natural expectation to be able to continue to use it – all these erode the “property return” claim by descendants of the original victims.43 While it is difficult to estimate the precise time frame required for one property claim to “fade away” and for a new one to gain legitimacy, it cannot be in the hundreds of years, and the key point here is the passing away of the original victims and the original wrongdoers. While there may be a reasonable disagreement with regard to the precise time frame, the fade away logic of property claims is strongly time-sensitive, and after a certain period of time has passed (three generations?), I think it is safe to argue that the original property claim has faded, and a new legitimate claim has developed.44 Ignoring the fade away logic will not only violate the property claims of the current owners, but might create an endless cycle of contradicting claims (as the question of what is a justified “original baseline” will arise) and introduce large-scale instability to any system of private property (I’ll return to this point in Chapter 5).45 Having explained these limitations to restitution claims, whatever property that is “external” or “beyond” these conditions, and is shown to be connected to the wrong done by A to B, should be returned to the descendants of B.46 As we move from children to grandchildren and further generations of descendants, the same conditions and their examination apply, for each generation anew (and note the accompanying information related problems, discussed in section 3.C.3, below). Note, again, that we should draw a sharp distinction between any setbacks in welfare of the descendants of the original victim (to be discussed in section 3.C.2 below) and the responsibility of the 52

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the individualistic perspective descendants of the original wrongdoer. After the wrongdoer dies, his or her descendants do not inherit responsibility for the wrongdoing; they are responsible only for whatever unlawfully gained property the wrongdoer chose to pass on to them. If such property does not exist, or we do not have enough information about it (e.g., if it is impossible to distinguish between legitimately and illegitimately acquired property owned by descendants of the wrongdoer, as discussed in section 3.C.3 below), or the conditions discussed above are not satisfied, the descendants of the wrongdoer are under no duty to return property to the descendants of the original victim. 3.C.2 Compensation: The Descendants of B (the Victims) Who Enjoy a Given Level of Welfare; the Responsibilities of these Descendants; and Unrelated Third Parties The CIA attempts to justify compensating the descendants of deceased victim B for (the now deceased) wrongdoer A’s failure to compensate them and for the ensuing setback in their welfare. As we defined a historical injustice as a past wrong in which all the original victims and wrongdoers have died, we need to ask first: who is entitled to this compensation? But suppose that we can identify the descendants of the victim, and that indeed they suffer from the noted setback in their welfare following the wrong (but see section 3.C.3 for informationrelated issues). A second question is: who should bear the burden of paying this compensation? All the original wrongdoers have died, the children of the wrongdoers do not inherit responsibility for the wrong (only the extent of the unjust enrichment), so who should it be then? The usual answer given is the state. However, this answer is far from trivial, and indeed it won objections from several scholars.47 The main reason behind these objections is that all the original wrongdoers, and the original victims, have died. It means that even if state agencies participated in the wrong, correcting it would mean taking from existing people in order to compensate the descendants of the victims, while the existing people (from which the taking is done) had no part in the past wrong. Can this difficulty be answered? It seems to me that the CIA may answer in the following way: there are cases in which people who took no part in a wrong bear the costs of compensation. For example, current German citizens pay a minuscule part of their taxes to Holocaust survivors. By 2011, it is obvious that most German citizens were born after the Holocaust.48 It seems to me, however, 53

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freedom from past injustices that such cases involve compensation paid to the victims, while in historical injustices cases the compensation is paid to the descendants of victims. Holocaust survivors are eligible, but usually not their descendants. Furthermore, the interest of Holocaust survivors in compensation, and the harm done to them, is much more significant than the interest of current German citizens in not paying this minuscule portion of their taxes. But once the last of the Holocaust survivors passes away, this compensation will stop. Indeed, some of my family members received such compensation (“reparations”), however, they have all passed away in recent years and I, as a descendant, am not eligible for such compensation. Therefore, it is important to note that in historical injustices compensation will be paid to the descendants of the victims, not to the direct victims. This means that even if we accept that the state ought to bear the cost of compensation, the CIA will have to demonstrate that the descendants of the victims are indeed current victims, which is an argument sensitive to time (and see section 3.C.3 below). But even if the descendants are ongoing victims, and even if the cost to each taxpayer (that funds the compensation scheme) is very minor (if it is not minor, it may provide a strong anti-compensation argument), the justification for compensation is much weakened. Why? Because the claim for compensation made by the descendants of the victims is justified following the failure to compensate them for their diminished welfare, which is a minor wrong relative to the original wrong, and therefore the following noteworthy points will arise: the situation will be closer to a double decoupling of claimant/victim and wrongdoer/payer; and (the obvious yet important point) that citizenship in a state is won (or granted) in a non-voluntary way, usually through birth. It seems, therefore, that there is something troubling in forcing a person to pay compensation for an act in which he or she took no part, if that person is made to pay because of his or her membership when such membership is ascribed in a non-voluntary way, while exit from this membership (immigration) is an extremely difficult and complex process.49 If the original victims are still alive, the decoupling problem is set aside, as the interest of the original victims vindicates the decoupling of wrongdoer/payer, but the wrong done to the descendants is a lesser wrong and the decoupling problem will probably arise. The difficulty of the “who should bear the burden of compensation” problem is one reason why I shall argue below that compensation requests of the descendants of the original victims should be sensitive to the welfare situation of these descendants, and 54

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the individualistic perspective not only because it may be difficult to demonstrate that the situation of the descendants of the victims is the result of the ongoing wrong (and see section 3.C.3 below). Having clarified the importance of considering the interests of the citizens who will bear the cost of the setback compensation, we can turn to examining the conditions that should be met if compensation is to be paid, even if the difficulties just discussed are overcome. As argued above, we also need to distinguish sharply between such compensation and the responsibility of the descendants of the wrongdoers discussed in section 3.C.1 above.50 I shall argue that “setback” compensation is justified only if the descendants’ welfare is below a given level. If the descendants of the original victims are situated above that given level of welfare, there is no longer a case for compensating them. That said, their level of welfare has no bearing on their right to property wrongly taken from their forefathers and unlawfully held by descendants of the wrongdoers, if there is such identifiable property, as explained in section 3.C.1. The sensitivity of setback compensation claims to the level of welfare of the claimants stems from the following considerations: the current needs of persons unrelated to the historical injustice gain priority in such a scenario, so if the descendants of the original victims are well off, there are more urgent interests the society as a whole needs to attend to. Note that this is not simply because considerations of distributive justice trump those of corrective justice, but also following the decoupling problem. Asking non-wrongdoers to fund compensation to people who are above a certain level of welfare seems altogether unreasonable.51 Note that claims for restitution are not sensitive to the welfare situation of the claimants: this is so because those unlawfully holding the property that resulted from the wrong have no claim to it, while the descendants of the victims have a claim to it, as discussed in section 3.C.1 above; if such a transfer radically and adversely influences the welfare situation of the descendants of the wrongdoers, the solution will not be to maintain the unjust enrichment, but by some external policy of distributive justice, if there is one. Going back to setback compensation, even if the descendants of victim B are situated below the noted welfare level, there will be a justified case for setback compensating them only if: (a) they have made a reasonable effort to conduct their life in a way that would have raised them above the given welfare level; and (b) their 55

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freedom from past injustices situation, of living below the noted welfare level can be linked either to the continued failure of wrongdoer A to compensate the descendants of B or, after his or her death, the failure of the noted entity (probably the state) to provide compensation. An explanation with regard to these two points is required here: if the victim’s descendants’ existence below a given welfare level stems from an irresponsible way of life52 or from the intervention of a third party(ies) unrelated to the original and/or continued wrongdoing, then there is no longer a case for setback compensation, because the given welfare situation of the descendants of victim B is not the result of the original/continued wrongdoing.53 Furthermore, if we disregard the conduct of the victim’s descendants and the role of third party(ies), the result may be that the citizens of the state that took upon itself to compensate the descendants of the victims, will grant too substantial a power to the descendants of the victims, and/or to third party(ies) on the ability of the members of the said entity to conduct their life in a stable way.54 It is problematic, to say the least, to maintain a situation in which non-wrongdoers are uncertain about their ability to maintain their current holdings, especially if this situation persists for an extended period of time. Having clarified the limits set on “setback” compensation- and restitution-type claims, I now turn to information-related problems. These are crucial for our ability to evaluate both kinds of claims. 3.C.3 Information-related Problems In order to justify the return of property by descendants of wrongdoer A to the descendants of victim B, or to justify compensating B’s descendants, we need to be reasonably certain that we rely on adequate information, especially because of the double decoupling of the claimant/victim wrongdoer/payer discussed above. If we are to demand from non-wrongdoers that they pay compensation, we want to know that the information we rely on is, to a very large extent, reliable. The following are some of the most important points in which a reliable information will be required.55 (1) In the context of restitution-type claims, there will be a need to distinguish between two kinds of property belonging to wrongdoer A’s descendants: that which has its origins in the wrongdoing; and all other property lawfully acquired and held by A’s descendants, for example, that which is the fruit of the descendants’ labor. If we cannot separate the two, the case for returning property from A’s 56

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the individualistic perspective descendants to B’s descendants is much weakened. Furthermore, if we accept that after a reasonable amount of time, A’s descendants may develop a justified claim to the unlawfully gained property (as discussed in section 3.C.1 above) the argument for property return is further weakened, as another layer of information-related uncertainty (who has the justified property claim?) is added to the scenario. (2) In “setback” in welfare-type compensation, we need to note that the victims’ descendants are responsible for their own lives, and for making a reasonable attempt to maintain or improve their level of welfare. Even if they fall to (or below) a level of welfare that theoretically entitles them to compensation, they will not be entitled to this compensation if their welfare level stems from irresponsible behavior. If their irresponsible behavior is partly to blame for their low level of welfare, this part should be discounted from the compensation. If there is not enough information about the descendants’ behavior, this adds another layer of uncertainty to the scenario. (3) In “setback” in welfare-type compensation, the role played by third party(ies) unrelated to the original/continued wrongdoing in causing the low welfare situation of victim B’s descendants needs to be determined. The case for compensation by the descendants of the original wrongdoers (or the state) for the original or continued wrong in a scenario in which third party(ies) are responsible for the lower welfare level is much weakened. It may be the case that the descendants of victim B are owed compensation by new or different wrongdoers. For example, Nazi Germany toward Holocaust victims as wrongdoer number 1; Swiss banks that knowingly kept hidden the existence of “dormant” bank accounts of Holocaust victims many years after the Holocaust would be wrongdoer number 2.56 No internal logic, or historical example, leads us to assume that there will be only one wrongdoer to one set of victims, especially if we consider extended periods of time with numerous involved parties, groups, and states, as will often be the case in historical injustices. This point is important because we wish to identify the “correct” wrongdoers for any given wrong. This adds another important layer of uncertainty to the scenario, as questions about “who owes compensation” will arise. (4) In “setback” in welfare-type compensation, for any point in time following the original failure by wrongdoer A to compensate victim B, and the continuing failure to compensate B’s descendants, a counterfactual of the hypothetical increase in welfare that would have been granted to B’s descendants had the wrong not occurred needs to be created: would the victim really have passed on more 57

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freedom from past injustices resources to her or his children? What would they have done with these resources? As with other counterfactuals, there is an informational problem here. Moreover, there are two different counterfactuals here: one pertaining to the original wrongdoing (which, following the passage of time, becomes increasingly problematic due to an expanding number of alternate realities and non-identity problems); and the second relating to generational factors (“what would the descendants have done with the compensation in each generation?”) that is as unreliable as any other counterfactual. Note also that the generational counterfactual is calculated, at least in part, as a derivative of the original counterfactual, making it highly sensitive to time. To conclude section 3.C.3: for every new generation, the aforementioned information-related issues need to be examined de novo, with the likely outcome that the level of certainty will be reduced with the passage of time. My guess is that by the third generation, informational problems will render the CIA rather dubious. The attempt by the CIA to overcome non-identity and counterfactual problems will, therefore, probably prove inadequate, even if the conditions discussed in sections 3.C.1 and 3.C.2 with regard to property return and setback compensation suggest that setback compensation and/or return are justified.

3.D Conclusion The continuing injustice argument is an important attempt to overcome non-identity and information-related problems. In an attempt to evaluate the CIA, I offered, first, to distinguish between compensation and restitution (return), and, second, to cite the pivotal importance of the passing away of the original victims and the original wrongdoers. Following these two points (and points discussed in section 3.C), the CIA57 encounters two major questions: first, can we justify property transfers from the descendants of the original wrongdoers to descendants of the original victims?; second, can we justify compensating the descendants of the original victims by members of an entity (probably a state) even though the existing members did not commit the wrong? The likely conclusion is that, following the passing of the victims and the wrongdoers (and once there is a third generation, counting from the original wrong), there are important reasons to doubt whether we can justify either property transfers or compensation.58 58

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the individualistic perspective The next chapter examines arguments that attempt to justify intergenerational redress from a collective-based perspective; a very different approach to the individualistic-based approach of the “continuing injustice argument.”

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Chapter 4

Against Redress (2): Thinking about Collectivities, States, and Nations

A. Collective responsibility and intergenerational redress, examining three “collective responsibility creators”: the identification, the participation, and the benefit. B. Who should pay? Collective responsibility and luck. C. Contracts and promises. D. On Jaspers’ metaphysical guilt. This chapter analyzes the claim that redressing past wrongs is justified on the ground of intergenerational collective responsibility. As will become clear throughout the deliberations of this chapter, “collective responsibility” can mean various different things, following the diverse ways in which scholars construct and support such pro-redress arguments. The underlying tone of this chapter is one of skepticism toward arguments for intergenerational collective responsibility. There are two main reasons for this skepticism. The first is that, in order to argue for the existence of intergenerational collective responsibility, one needs to demonstrate the existence of a collective. As the collectives discussed are usually very large groups (for example, citizens of a country), and as such large numbers of people will exhibit a wide plurality of religious beliefs, ethnic origin, ideological approaches, and so on, it is problematic to assume collectivity as an empirically adequate description of such large groups (if “collectivity” indicates something more meaningful than a random aggregation of individuals). As R. Dworkin writes: People of every race, faith and ambition may be born into the same political community, and it is deeply implausible that the characterization of communal life that best fits such a community could be one that assumes that it must choose one faith or set of personal ambitions or ethnic allegiance, or one set of standards of sexual responsibility . . . that characterization not only does not fit the criteria of citizenship; it makes them close to nonsensical.1 60

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thinking about collectivities, states, and nations Second, any argument for collective responsibility must trump, or at the very least avoid in some fashion, both the definition of responsibility introduced in Chapter 12 and the foundational Rawlsian assumption of the separateness between persons (also introduced in Chapter 1). Therefore, holding X responsible for what Z did, given these two concerns, is deeply problematic. Furthermore, in the case of historical injustices, even if some sophisticated version of collective responsibility were to overcome the notions of responsibility and separateness between persons in contemporary cases, it would still not justify intergenerational redress. In other words, advocates of redressing past wrongs because of perceived collective responsibility will have to add auxiliary considerations of intergenerational settings to their arguments regarding collective responsibility – not a trivial mission to accomplish. H. D. Lewis famously wrote that collective responsibility was a “barbarous notion.”3 He (and others) were troubled by the idea of holding X responsible for what Z did. While his language is harsh, this chapter argues that his moral intuition was correct. This chapter will be longer, and perhaps more complex, than the previous chapters, as there are a variety of arguments regarding collective responsibility, and it will require a measure of patience to unpack them. Section 4.A examines three common ways to argue that collective responsibility exists: identification, participation, and benefit (when certain conditions are met). I shall examine such arguments to determine whether they can justify intergenerational redress. Section 4.B examines a scenario in which the consequences of a past wrong are ongoing, yet no living wrongdoer is identifiable. In such cases, the question “who should bear the cost of redress?” obviously must be asked. In this section, I examine some potential answers. Section 4.C considers the argument that, as states and contracts are intergenerational, a state that broke a contract at T1 is under a duty to fix this broken contract at T2, even if the original persons who signed the contract are long dead. Lastly, section 4.D examines Jaspers’ famous “metaphysical guilt” argument, and Larry May’s contemporary development of this argument.

4.A Collective Responsibility and Intergenerational Redress, Examining Three “Collective Responsibility Creators”: the Identification, the Participation, and the Benefit If the concept of collective responsibility is to serve any useful role in political theory, it must be different than individual responsibility 61

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freedom from past injustices or merely aggregated individual responsibility, which is simply the responsibility of several individuals for what each of them did.4 Collective responsibility, if it is not to become a moral scandal,5 also cannot mean a random attribution of responsibility to a John Doe minding his own business on some street corner, independent of the wrongdoing. Collective responsibility should, therefore, roughly indicate that: A, in a voluntary fashion, did the faulty act X, which is causally connected to bad state of affairs B. A is responsible for B, however, C – another person – is connected to A in some fashion that would justify holding her or him responsible for the bad state of affairs too. This connection between A and C is the crux of the concept of collective responsibility: the connection should be strong enough to justify thinking that C is also responsible for the bad state of affairs, but should not be so strong as to collapse into a simple aggregation of individual responsibility.6 As we shall see, there are several different possible conceptions of this connection between A and C. Let us call an attempt to specify this general connection a “collective responsibility creator,” or CRC. Before presenting some possible elaborations of the CRC, let us carefully clarify what the CRC is not. The CRC is not a mere aggregation, a point that necessitates careful consideration. If John from Los Angeles steals a car, and Jack, knowing that the car is stolen, joins him later on a ride to Las Vegas, pays for gas, and enjoys the fun of using a stolen car, Jack is a wrongdoer. In other words, there is no need for an additional concept of collective responsibility, an aggregation of individual responsibility is enough. Naturally, when we consider the adequate response to such an act, further considerations, such as deterrence, accessing sufficient information about the part played by each participant in the wrong, and moral education (i.e., a signal to the society at large) are relevant. Such issues are important when considering the response to the wrongdoing, but the initial trigger for all of these questions is the attribution of wrongdoing to Jack. In fact, only once the individual responsibility of Jack is substantiated do the other considerations of adequate response find a place. It would seem bizarre, for example, if we were to raise these concerns for Joan, who had nothing to do with the car being stolen or misused. The challenge for a “collective responsibility creator” is to indicate how collective responsibility arises independently of individual responsibility or, at the very least, as a special concern when indi62

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thinking about collectivities, states, and nations vidual responsibility is more difficult to justify. Some famous examples, described by several scholars, are a taxpayer uninvolved in the decision making of her or his government, which commits wrongs elsewhere, and an employee in a company7 who does not have any influence on decision makers, while her or his company commits wrongs elsewhere.8 The taxpayer and the employee examples are useful scenarios because they meet certain important conditions: both individuals belong to a well-defined collective, contribute to that collective, yet are not wrongdoers or decision makers. They are, therefore, “ideal types” in the Weberian sense for the problems that “collective responsibility creators” may encounter; furthermore, they also represent a reasonable scenario and thus may prove to be useful, thoughtprovoking examples.9 In both cases, individual responsibility is missing or, at the very least, only detectable in a manner far removed from regular ascriptions of responsibility. The key qualifications – voluntariness, causality, and fault – are either missing completely or are very remote from the actual activities of the taxpayer or the employee. In these cases, the proposed “collective responsibility creator” is the relation between the individual (the taxpayer or the company employee) and the wrongdoers: the political decision makers and/ or the military in the first example; decision makers and other employees in a different location to that of “our” employee in the commercial/business example. What is the added value of such a CRC, and is it powerful enough to justify imposing costs or penalties on the taxpayer or the employee in our example? The commonly used CRCs in the relevant literature are identification, participation, and benefit. I shall examine each one. For each CRC, following a general explanation, an analysis is offered regarding its ability to justify collective responsibility in contemporary cases, followed by its ability to justify collective responsibility in intergenerational redress cases. If the CRC fails in contemporary cases, this further consideration is waived. 4.A.1 Collective Responsibility Creator: Identification The argument from identification goes roughly as follows: A, B, and C commit a wrong. D, who is not involved in the wrongdoing, identifies with A, B, and C – perhaps they share cultural characteristics or perhaps some cultural assumptions about various topics. In most 63

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freedom from past injustices cases, A, B, C, and D all belong to some collective, so the identification is not limited to this small group of four, but is aimed at a much larger number of people. Note that I assume such identification exists. In many cases such identification does not exist or, given a large number of “members,” it is difficult to know if it exists. Mere common citizenship is certainly insufficient as evidence that such identification exists. My point in the text below is, however, that even if such identification exists, it fails to create collective responsibility. Moving on, note that the identification of D is not with the wrongdoing, but with the collective as a whole. As D did not commit this wrong, the variables required for individual responsibility (voluntariness, causality, and fault) are missing, but this identification with the collective to which the wrongdoers belong is claimed by some as a sufficient condition for the creation of collective responsibility. Let us examine some attempts to argue for identification more closely. The main attributes typically associated with identification are shame and pride. It is often repeated that being proud in certain acts of a collective and feeling shame in other acts are strong indications of collective belonging and therefore collective responsibility. The claim is that if one has both pride and shame in what the collective has done (and is doing at present), this identification with the collective connects the individual to a given community in a fashion that creates collective responsibility.10 This view of responsibility as stemming from emotions is unconnected to the conditions usually described in the context of responsibility (voluntariness, causality, fault). Indeed, one version of the identification view indicates that a collective responsibility created via identification cannot justify punishment, since the conditions required for attributing responsibility are missing. At most, the author of this version indicates, collective responsibility created via identification may be the catalyst for a process of soul-searching by the individual who feels pride and/or shame in the acts of the collective.11 This approach may be descriptive, regarding the ways people react when reflecting about their identification with a certain collective, or normative, regarding how people should react when reflecting about their identification. In either case, it is not a fully-fledged CRC, as it does not concern responsibility at all. At most, it might bring some individuals, after reflecting on their identification, to act in some fashion. For example, to donate funds to an institute that does research on past wrongs committed by their collective. However, the identification view cannot support imposing costs on the members 64

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thinking about collectivities, states, and nations of the collective because they are responsible for a given bad state of affairs: the conditions required for responsibility are missing, and the “identification” argument provides no “collective”-based substitute for the usual indicators associated with responsibility. It seems that an identification-based collective responsibility is a misnomer since it does not concern responsibility at all. At most it is an emotional reaction (pride, shame) and an inner reflection of the individual (“what does it say about me, if I’m proud of my collective, if my collective did act X?”). A brief example may help to clarify my point that identification and collective responsibility are two different subject matters and are best kept separate. Suppose we have a soccer enthusiast, who cares deeply about her or his team. This fan, however, lives in a different country to the one in which his favorite team plays. Suppose further, that this person has strong emotions for her or his team, and she or he even identifies with this team. Then, the fans of this team at one game create real trouble: they get drunk, beat up the fans of the rival team, engage in vandalism, etc. “Our” fan, however, did not participate in any of these “activities” as she or he is far away, in a different country – yet the fan is ashamed of the vandalism by the fans of his beloved team. Should we consider such feelings as a sufficient condition for the creation of collective responsibility? It seems to me that the correct answer is an obvious no, this person resides in a different country and had no connection with the acts of vandalism.12 Emotions and identification are, therefore, best kept separate from the subject matter of collective responsibility. It is obvious, therefore, that “identification” is also not a proper CRC in intergenerational cases, and was probably not even considered one by the noted scholars who developed the idea. I therefore move to the second option: “participation.” 4.A.2 Collective Responsibility Creator: Participation The participation argument in collective responsibility cases should not be understood as “participation” in wrongdoing according to common parlance: the situation is more complex as the participation is indirect. The examples indicated above illustrate such indirect participation: a taxpayer13 whose country commits a wrong in another country/part of the world, or an employee14 not immediately associated with other employees who commit a wrong in a different branch and location.15 16 In such cases, we need to differentiate 65

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freedom from past injustices between current wrongs and past wrongs, I will begin by analyzing contemporary cases (in which the wrongdoers and victims are alive), followed by a discussion of intergenerational collective responsibility. Note that, even if we accept that the participation CRC succeeds in contemporary cases, the proper response remains a complex issue: is punishment, contributing to the cost of redress, or “mere” moral responsibility the fitting reaction? Let us begin with the example of the taxpayer. The taxpayer has no direct control of the activities of his or her government, and in most cases, he or she did not become a citizen (or a “subject” in the case of a dictatorship in which the concept of citizenship is not respected) in a voluntary fashion. Rather, he or she became a citizen through birth, that is, through a non-voluntary “entry” process. This means that, inherently, the voluntary aspect of responsibility is missing in all such cases.17 Furthermore, the causality is indirect at best. The act of the taxpayer, to state the obvious, is paying taxes, not the wrong itself. This is an indirect act of support for his or her government’s activities, and the connection between paying taxes and the bad state of affairs is weak at best. Does this approach, therefore, require that we consider paying taxes itself to be morally wrong? If it is wrong, it may serve to create collective responsibility. But at this point in our argument this is a question, not an assumption. If the payment of taxes is done voluntarily, and it directly causes a bad state of affairs, it might be indeed wrong. However, paying taxes is a legal duty, not a voluntary action, and the taxpayer’s connection with the moral wrongs committed by the government is remote and not particularly strong. It is obvious that, in such a case, paying taxes cannot ground individual responsibility – in the normal meaning which includes the variables introduced in Chapter 1 (voluntariness, causality, and fault) – for the wrong. However, the argument here is that the tax-paying individual is blameworthy via collective responsibility, not individual responsibility. Thus, the status of the taxpayer’s individual responsibility for the wrong committed by his or her government could be considered irrelevant. Can the fact of paying taxes create collective responsibility? There are various indicators here, such as whether the individual can avoid participating, the cost of such avoidance, relevant acts this person can do in order to change his or her government’s policies,18 the feasibility and danger of such “policy-changing” acts, and the extent of the moral wrong that the government commits.19 66

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thinking about collectivities, states, and nations For example, if avoiding participation is difficult as entry was involuntary, the cost to a member to avoid participating is high, there are few “policy-changing” acts available, and the moral wrong committed by the government is minor, the mere fact of participation carries very little normative weight.20 If the indicators of responsibility have different values (entry was voluntary, there are many and easily accessible “policy-changing” acts, etc.), the normative power of the “participation” CRC increases. Consequently, native-born subjects to a dictatorship incur very little collective responsibility for the wrongdoing of their government. Native-born citizens of democratic states will incur more collective responsibility, but not much as entry to this collective is non-voluntary and exit is very difficult (emigration), and in some cases, as was shown by Hume, impossible.21 Thus, collective responsibility incurred via the payment of taxes has a limited normative power to hold members of even democratic regimes collectively blameworthy of a wrong. As entry into this collective was involuntary, and as the connection to the wrong is indirect at best, the basic requirements for ascribing responsibility are absent. The focus should be on those individually responsible – the actual wrongdoers, and the blame ascribed to the collective at large should be rather limited. Individual punishment levied on the taxpayer in a post-wrong era is obviously irrelevant. What may be justified is the required participation in redressing the costs of a wrong. The rationale for this is that, if the taxpayer indirectly contributed to her or his government’s ability to commit this wrong, it is appropriate that the taxpayer will contribute to the redress of the wrong (i.e., a relatively minuscule part of her or his taxes) proportionally to the payers’22 contribution to the wrong committed.23 24 To anticipate an objection to this conclusion: some readers might think that as paying taxes is mandatory, it is unfair and perhaps violates the condition of voluntariness so central to our analysis of responsibility. These readers may object to accepting the payment of taxes as a sufficient participatory activity for justifying the creation of collective responsibility. This is a fair objection, and the response to it is twofold: first, we are discussing collective, rather than individual, responsibility created via the “participation” CRC. The point here is the strength of the participation CRC, not the attribution of individual responsibility. In fact, if individual responsibility was present, there would have been no need for the much more complex 67

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freedom from past injustices collective responsibility. If the “participation” CRC is sufficiently powerful to create collective responsibility, it fulfills its purpose even though at least one of the conditions required for individual responsibility (voluntariness) is missing or is weak. Second, it is true that paying taxes in a given state is mandatory. However, “mandatory” does not usually mean that one has no other choice: one can refuse to pay taxes and bear the consequences, typically paying a fine or going to jail. This returns us to the subject matter of disassociation from collective responsibility; the conditions under which one can disassociate oneself; what sanctions would be enacted on such a member given such an attempt; and related questions discussed above. To put it in different words, the ability of the “participation” CRC to create collective responsibility is strongly connected to both the magnitude of the wrong the state committed and the difficulty of avoiding the payment of taxes (as an example of a “disassociation” activity). If the wrong is severe, and it is easy to avoid paying taxes (that is, the expected response by the state is not too harsh), the “participation” CRC is rather strong. In cases in which the wrong committed by the state is minor, yet the punishment of those who attempt to avoid paying taxes is severe, the ability of the “participation” CRC to create collective responsibility is diminished, etc.25 This conclusion, regarding the relative success of the “participation” CRC, may shift to some extent in our second example, that of an employee26 in a company which, in a different branch, commits a wrong. The employee has no control over what is being done in this other location/branch: she or he is not an executive decision maker, hence the voluntariness, causality, and faultiness aspects of responsibility are missing, and individual responsibility is therefore not applicable. Therefore, the collective responsibility creator in this case is “participation” as well. However, unlike the taxpayer example, the employee does have the option of exit, that is, leaving her or his job at this company. The employee has more space in which to maneuver, space which may be divided to two parts: first, the employee (or shareholder) may cease his or her connection to this company in order to avoid further association with the wrong, while the wrong continues (assuming that he or she has no other ways of changing the company’s conduct); and, second, in a post-wrong period, if the employee is unhappy with his or her obligation to participate in the redress which is (let us assume) the response to the wrong, he or she may leave the company. Of course, leaving one’s place of work is seldom as easy as such an example seemingly suggests. For example, 68

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thinking about collectivities, states, and nations leaving one’s place of work in a middle of an economic crisis, or a period of high unemployment, is no small matter. So the possible voluntariness of the participation should not be understood as easy or worry free. It is still, however, easier to leave a place of work than it is to leave one’s country. The added variable of relatively easy exit – compared with the taxpayer scenario – is not, however, very important regarding the proper response to collective responsibility. As with the taxpayer example, there is only the collective responsibility following the participation CRC and no individual responsibility here. The response should, therefore, be similar to that of the taxpayer example. The employee may incur a financial burden as a part of, let us say, a salary reduction following a settlement to compensate the victims of the wrong done by the company. In a different scenario, if she or he decides to leave this company in order to cease association with its wrongdoing,27 the employee may internalize certain costs (the loss of potential earning, for example). These “costs” (direct or indirect), however, seem to be the limit of what collective responsibility can exact in this case. As in the taxpayer example, the focus should be on ascribing responsibility to the wrongdoers. 4.A.2.1 Participation and Intergenerational Redress Having examined some of the core issues of collective responsibility in the context of the participation CRC, I would like to examine specifically intergenerational cases of the participation CRC. Similar to the way in which we described such cases in previous chapters, let us assume that both the wrongdoers and the victims have passed away since the wrong. Can the participation version of collective responsibility justify intergenerational redress in such a scenario? Let us begin with the taxpayer example. Our starting assumption is that the wrong has ended and that contemporary citizens, therefore, took no part in it. Their contemporary activities, such as paying taxes, do not constitute participation in the (now past) wrong in any way. Once the wrong has ended, and the victims and the wrongdoers have all died, it is therefore not clear what place the participation argument occupies. It therefore seems that the participation argument cannot support intergenerational collective responsibility. Three caveats are required for this conclusion. First, if there is an ongoing benefit for the society at large that follows from the wrong, the scenario changes, as discussed in section 4.A.3 below (the “benefit” CRC). Second, in some cases specific persons within 69

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freedom from past injustices the overall population retain property obtained as a direct result of the wrong. This may create a duty of restitution (as discussed in Chapter 3), but the responsibilities stemming from this unjust enrichment apply to those holding this property, not the entire tax-paying population. Lastly, in some cases there may be intergenerational consequences to the wrong, such as lower welfare status for the descendants of the (now deceased) victims (as discussed in Chapter 3). I shall examine this scenario below, in section 4.B, where the driving question will be: “who should bear the cost of redress?” Moving to the scenario of an employee in a company. Let us assume that the wrong has ended and both the wrongdoers and the victims have died. Being employed by this company in a postwrong scenario, therefore, does not include participation in a previously completed wrong. Thus, the participation argument does not create intergenerational collective responsibility. As in the taxpayer example, if there are assets held by the company as a result of the wrong, they should be returned to the lawful owners, as their retention is a case of unjust enrichment. This responsibility for restitution of property, however, is distinct from both the original wrong and from the logic of the participation argument: the issue is not responsibility for the original wrong, but locating and returning this property to its lawful owners, following the considerations described in Chapter 3. Note that if the company is aware that it holds property unlawfully, and hides its existence from the rightful owners, this would be a new wrong, and the participation logic may restart. In such a case, the wrong would not be a historical injustice, but simply a new wrong.28 4.A.3 Collective Responsibility Creator: Benefit An oft-cited collective responsibility creator is benefit.29 If one benefits from a wrong done by one’s well-defined collective (but does not actively participate in the wrong that produced this benefit), several scholars have argued that this person incurs collective responsibility for the wrong. Let us establish some basic aspects of this argument. The person we are discussing is not the direct wrongdoer, and therefore the conditions of voluntariness, causality, and fault are all missing. Similar to the scenarios in the previous two subsections, the idea of collective responsibility is owed completely to the benefit argument. In other words, the argument of benefit seems not to be an argument about responsibility at all. Rather, it is an argument about 70

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thinking about collectivities, states, and nations unjust enrichment. If A wrongs B, and C benefits from A’s actions and B’s losses, C is not responsible for the wrong since C cannot control A’s behavior. Nevertheless, C is not entitled to the benefit, which belongs to the rightful owner (in this case, B). C is therefore obliged to return to B whatever belongs to B. If C understands that the source of the benefit is unjust enrichment, we can seriously examine, at the very least, the possibility that all the conditions that are required for individual responsibility exist. The responsibility will not be for the original wrong, but a new wrong: holding property that one does not rightfully own (assuming that C does not have a justified claim to this property, although such a claim may develop with the passage of time, as discussed in Chapter 3). Note that the duty of C can be divided into two aspects in our example: first, to exercise reasonable caution when receiving this benefit; and, second, if the benefit was accepted already, to return to B (the victim) the value of the unjust enrichment. Neither aspect seems to indicate a collective responsibility, but responsibilities of the specific individuals who enjoy this benefit. If a given person in this collective does not (or has not) receive any such benefit, she or he does not incur any responsibility that follows this benefit, even though she or he is a member of this collective. Therefore, as long as we can identify those who benefited, we do not need the complex notion of collective responsibility. However, in some cases such benefits are not conferred solely on specific individuals, but are “diffused” to the collective as a whole, such as the citizens of a state or an entire company. For example, if the good is a public good, such as land or funds that were reinvested in the collective (either a state or a company), its beneficiaries are the society at large. The presumption is, of course, that property should be returned to its rightful owners and not reside either with the wrongdoers or with third parties that enjoy the benefit that follows from the wrong – especially while the wrongdoers and the victims are still alive. Therefore, in cases in which the benefit is “diffused” among the collective, the benefit argument may indeed create collective responsibility for the members of the benefiting collective. Note, however, that the decisive factor is the unjust enrichment enjoyed by the society as a whole. As reversing this unjust enrichment would require significant governmental involvement in private holdings, a successful restitution request following the argument of a “collective unjust enrichment” ought to meet four further “subfactors”: first, that the original benefit is identifiable and large enough 71

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freedom from past injustices to unjustly enrich the society as a whole (and not merely individuals within this society). Second, that this unjust enrichment is significant enough to justify some sort of material disgorgement. This means that the value to the society as a whole should be substantial enough in order to justify redress, and that in any case the value gained by a given individual within this society is probably very small (a proportional part of her or his unjust enrichment relative to the collective unjust enrichment). This would substantially limit the size of material redress levied on any individual, as the size of the redress corresponds to the unjust enrichment, not to the damage done to the victims, as explained in Chapter 3. Third, that those unjustly deprived (the victims) are identifiable. Lastly, as disturbing the way of life and expectations of many innocent third parties is obviously not a very attractive option, the information required to assess factors 1–3 should be immediately available and highly reliable (and is, therefore, time-sensitive). If these four factors are met, the benefit argument succeeds in creating collective responsibility in contemporary cases in which the wrongdoers and the victims are alive. I now turn to intergenerational cases. 4.A.3.1 Benefit and Intergenerational Collective Responsibility Can the benefit CRC justify intergenerational redress? In intergenerational cases, a benefit argument would be constructed roughly as follows: A wronged B and some material benefit to A results from the wrong, which was never redressed. Time passes, A and B both die, and the original wrong has ended. However, the value of the unjust enrichment still exists, being held today by the beneficiaries of A, call them C. C, at least originally, have no justified claim to the resources passed to them, as they belong to the original victim B. As B has died, his immediate descendants now have a strong claim to this property.30 Here there are two options. The first option is that the beneficiaries of the wrongdoers are individuals who can be clearly identified. In cases where this identification can be made, a policy of returning the property that originated from the wrong and that they hold to the descendants of the victims should be enacted. This scenario was discussed in Chapter 3 in detail, so I can simply add here that such restitution claims are sensitive to time, (following information-related problems and the resultant erosion of claims to private property etc., as discussed in Chapter 3). However, if the unjust enrichment 72

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thinking about collectivities, states, and nations was not eroded following time-related considerations, we have a fairly simple scenario of a justified intergenerational restitution claim. In such a scenario, the important variable is the unjust enrichment – identifying those unjustly enriched is merely a technical issue (although a complex one in reality), and there is no need for the more complex notion of intergenerational collective responsibility. Only those individuals under an obligation to return property are required to act, not any collective. A second option introduces a new dimension to the scenario of unjust enrichment and merits a somewhat complex discussion, as follows. In some cases, the beneficiaries of the wrong are not individuals, but the collective (either the society or a company) at large. The wrongfully obtained resources were “diffused” to the collective rather than to specific individuals. For example, if the (original) wrong was the stealing of land, on which there are at present cities, villages, industrial areas, etc., the benefit is enjoyed by the collective as a whole, rather than by specific individuals. If there is an ongoing collective benefit to the society at large, then the passing away of the original wrongdoers and victims does not erode the benefit argument. Now, if there is a continuing collective benefit, is there a collective responsibility to return the value of this benefit? In other words, is intergenerational benefit a legitimate intergenerational CRC? Let us first clarify what the benefit argument is not: it is not a case in which a specific person – let us say, the son of a person who took part in a past wrong (and has since died) – holds property that was stolen as a part of the wrong. This particular person may be obliged to return this property to the descendant of the victim in a classical restitution logic. This, however, is only relevant in some very specific cases, and is not our focus here. In this section I am interested in cases in which the beneficiaries are the current members of the society as a whole, as the benefit was thoroughly “diffused” to the society at large. Some examples of arguments relating to diffused, wrongfully obtained goods are attempts to justify offering redress to African Americans in the United States,31 and offering material redress to indigenous people in Australia (often following territorial claims).32 A blunt formulation of this view, published in an Australian newspaper, argued that as Australians live on stolen land (all of 73

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freedom from past injustices the land in Australia), all living Australians have a duty to pay material redress.33 This kind of argument will be my focus in this section. Before I dive into a discussion of the structure of the benefit argument in and of itself, it is important to note that the four “subfactors” discussed above in contemporary cases apply even more forcefully in intergenerational cases: the original benefit should be identifiable and large enough to unjustly enrich the society as a whole (and not mere individuals within this society); this unjust enrichment is significant enough to justify some sort of material disgorgement; that those unjustly deprived (the victims) are identifiable; and the level of immediate and reliable information required to determine factors 1–3 must be rather high (and, therefore, the restitution request is time-sensitive). Further conditions that are especially pertinent to intergenerational cases, which such benefit arguments will need to overcome, are the instability of property rights and the supersession thesis – as discussed in Chapters 1 and 3 – and whether the identity of the claimants remains static (as unlikely as this scenario is) and, therefore, not vulnerable to the non-identity problem – as discussed in Chapter 2. In most cases, the aggregation of these points will probably nullify such restitution-style requests, or at least make such successful requests highly unlikely. However, there is a theoretical interest in the “benefit” argument in and of itself, to which I now turn. The “benefit” argument has a similar structure to the well-known political theory argument from “fair play.” In both the “benefit from a past wrong” and the “fair play” arguments, the crucial point is that receiving benefits may justify attributing duties to the beneficiary, even if the receiving side did not express an explicit wish to receive such benefits. Let us assume for the sake of the argument that along with the benefit argument of collective responsibility, past wrongs actually bestow benefits on present people: does that justify holding existing people under any particular duty (most probably to return the value of the “diffused” unjust enrichment), even though they were completely passive in the process of receiving this benefit? In order to answer this question, we need to carefully examine the fair play argument before returning to the past injustices case. This is an indirect route, but the additional exercise is worth the labor. Note that the goal of this exercise is to examine the principle of the benefit argument itself, not to determine the cost that may be levied on the individual citizen if the argument is successful. 74

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thinking about collectivities, states, and nations 4.A.3.2 Examining the Benefit/Fair Play Argument, as Applied to Intergenerational Redress34 The benefit argument relies on the fair play argument, which is well known in political theory. This argument is, roughly, as follows: to justify the authority of the state and obedience to the law, liberals have relied on the principle of consent. However, as it is obvious that a large majority of citizens in any state have never consented to being citizens, nor have they understood any conduct as implying such consent, an additional argument was needed that could justify obeying the laws of the state without invoking the notion of individual consent. H. L. A. Hart,35 and following him (in a more fully developed version) John Rawls, suggested the “fair play” principle. As Rawls writes: “the legal system is constructed as a system of social cooperation to which we become bound because: first, the scheme is just . . . and, second, we have accepted, and intend to continue to accept, its benefits.”36 Now, this principle has won a fair amount of attention, but in anticipation of the discussion below concerning intergenerational cases, the insights of two scholars are particularly valuable. R. Nozick argued that this principle leads to objectionable results, as individual liberty may be violated if the mere bestowing of benefits justifies obligating37 the beneficiary to do X (paying a sum of money, performing some service, etc.) without her or his consent. Nozick suggests the additional criterion that the benefit bestowed shall be greater than the cost to the beneficiary. Nozick, to the best of my understanding, considered this added protective criterion as a minimally required defense of the beneficiary right to non-interference. In this way, the beneficiary fulfills his or her part and bears the cost of participation as a form of “social cooperation.”38 However, Nozick – correctly – is not pleased by even this additional criterion as it does not address the basic problem of imposing a duty in the first place.39 A second insight important for our discussion regarding intergenerational benefits was offered by John Simmons.40 Simmons rejects the fair play principle, but in doing so helps to clarify it. Simmons attempts to defend the fair play principle from the Nozickian critique by introducing an element of consent, but – as consent is inadequate as an explanation of most citizens’ relations to their government – without collapsing fair play into simply an argument of individual consent. Simmons’ analysis depends on a distinction between “to accept” and “to receive.” “To receive,” describes a case in which a person is completely passive, and yet benefits from the cooperative 75

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freedom from past injustices scheme (note that we are still discussing the benefit argument, I will return below to the subject matter of historical wrongs). Such a person, argues Simmons, should not be required to bear the cost of producing the benefit.41 “To accept,” according to Simmons, means one of two options: one tries (and succeeds) to get a benefit, or one takes the benefit willingly and knowingly.42 Simmons does not think that a significant number of citizens consider their citizenship in any way which is similar to these two versions of “accept,” and therefore rejects the fair play principle.43 It is an open question whether the fair play principle, in Simmons’ “accept” version, does not collapse into a version of individual consent, but it is immaterial to our subject matter. If the fair play argument fails, and I think, following Nozick and Simmons that it does, then there is no need to examine its application in the more complex scenario of intergenerational redress. If the fair play argument depends on citizens’ understanding of their relations to the government as involving an attempt to get a benefit, or as taking a benefit willingly and knowingly, the principle is inadequate and it is a mistake (or even wrong) to impose duties following the bestowal of a benefit on a passive individual. If we rule out the idea that citizens understand their relations to the government as an active attempt to receive benefits, we are left only with the bare argument that enjoying a benefit in and of itself obligates the beneficiary to do X. Nozick responded to the “bare” benefit argument with a series of famous examples intended to demonstrate how this argument fails to convince. For example: if I stand below your window and throw books into your room that (probably) you would enjoy, can I then consider you obliged to do something in return (and should the government consider enforcing such obligations)?44 In other words, Nozick’s and Simmons’ objections to the benefit argument are convincing (and this is one reason for which Rawls himself limited the application of the fair play argument to very few people in any given state), and we can apply this conclusion to cases of intergenerational redress. In intergenerational cases, by definition, the citizens are only passive recipients of the benefits derived from past wrongs (if there are any), and their status as citizens does not express a willingness to receive any such benefits. Thus, the benefit argument (implicitly relying on “fair play”) cannot justify intergenerational redress, especially when we consider “diffused” benefits. The following scenario illustrates this: person X drives her car to work every day using a 76

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thinking about collectivities, states, and nations road which was originally built, many years ago, by forced labor. Does she incur duties following her usage of the road? She probably has no information about the origins of this road, so her behavior signals no intention to benefit from past wrongs. Further, the benefit is diffused and remote from the original wrong. It is unlikely, therefore, that the benefit argument is strong enough to trump all of the relevant considerations. Note that, even if the fair play argument holds, it would still not justify redressing past wrongs – for which many other steps will be required, such as the four additional “factors” discussed above.45 But, if the fair play argument fails, we can ignore those additional required steps: even if current generations benefit from past wrongs, this fact does not justify redress if the current beneficiaries were completely passive in the process, and the benefit itself is both diffused and indirect.46 This seems to sufficiently end the discussion of the “benefit” argument, but one more point – and two famous attempts to revive the fair play position, and therefore the benefit argument – should be examined in order to complete our consideration of the benefit argument. Both Nozick and Simmons indicate that the ability to avoid the benefit and the cost associated with a scheme of social cooperation is fundamental.47 The importance of this ability to avoid the cost and the benefit stems from the view of a society as an open space. An “open space” is one in which individuals may join, and leave, not as an entity into which involuntarily entry automatically bestows both benefits and costs.48 Even if we do not go as far as adopting this particular vision, the “open space” view does emphasize how fundamental the ability to avoid the obligation and the cost is, usually by stressing the passive reception of the benefit (explained above). Note that even a realistic option of exit (such as emigration, as a way to avoid receiving the benefit and not incurring an obligation to share the cost) is an inadequate way to circumvent the voluntariness objection. There is something morally problematic with disrupting a peaceful life with two options: pay up or leave. Leaving one’s home is a drastic move, and a liberal society should have better alternatives and ways to answer the problem of passivity and the acceptance of benefits. In any case, emigration, even if a practical option (unlikely), exposes a given individual to a similar “fair play/ benefit” situation in a different location, so changing locations solves nothing. 77

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freedom from past injustices Two noteworthy attempts to salvage the fair play argument have been offered in the relevant literature, and a brief mention of them is required. Although these attempts were created in a different context, they may be used in the intergenerational redress scenario. The first one, offered by R. Arneson,49 was that some benefits are unavoidable, such as public goods. If they are unavoidable, the criterion of voluntariness, that is, the recipient of the benefits did not ask to receive them – emphasized above – is an inadequate criterion for creating an obligation, and therefore obligating beneficiaries to bear the costs of producing public goods is justified. But Arneson’s argument simply confuses the justification for the fair play argument with a description of a given situation. It might indeed be the case that there are unavoidable benefits such as public goods.50 Nevertheless, such a state of affairs (which is mainly descriptive in nature) still cannot justify obligating beneficiaries to bear the cost of producing those benefits. Arneson, in other words, derives “ought” from “is.” But the objection raised above, that obligating passive recipients to bear costs is wrong as it would violate the recipients’ liberty, remains unchanged. To put it in another way: the fact that receiving a benefit is unavoidable does not change the fact that these benefits were not requested by the citizens of the state. The consequences of this “back and forth” argumentation for the issue of historic injustice are clear: even if benefiting from past wrongs is unavoidable,51 this does not mean that an individual is under any duty to bear the cost of redress due to his or her passive reception of a benefit. As in cases of historical injustices, being a passive recipient of “diffused benefits” is, by definition, the status of later generations, the “unavoidable benefit” argument fails to justify obligating such later generations to bear the cost of intergenerational redress for past wrongs. Thus, Arneson’s argument does not change our conclusion regarding the justifiable creation of duties to redress past wrongs in cases in which the benefit is diffused and indirect. A second attempt to justify the fair play argument centers on the size and importance of the benefit. G. Christie argues that, if the benefit provided to the beneficiaries is significant enough, it is justified to impose the cost of producing the benefit on those benefiting from it, regardless of their lack of voluntariness or ability to avoid the advantage.52 This may be called a “butter” argument after the interesting conversation between the Mad Hatter and the March Hare. The Hatter is upset that his watch does not work properly, 78

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thinking about collectivities, states, and nations and says to the Hare: “‘I told you butter wouldn’t suit the works!’ he added looking angrily at the March Hare. ‘It was the best butter,’ the March Hare meekly replied.’ ‘Yes, but some crumbs must have got in as well,’ the Hatter grumbled: ‘you shouldn’t have put it in with the bread-knife.’ The March Hare took the watch and looked at it gloomily: then he dipped it into his cup of tea, and looked at it again: but he could think of nothing better to say than his first remark, ‘It was the best butter, you know.’”53 Obviously, butter, of whatever quality, with or without the crumbs, should not be put in watches. Thus, simply put, the quality and the quantity of the butter are irrelevant. Returning to the attempt to salvage the fair play argument: Christie does not argue against the basic point that imposing duties, and then costs, on individuals who did not wish to receive such benefits and were (probably) unable to avoid these benefits and the costs is problematic. He merely describes a situation in which these benefits are large. But that is as irrelevant as the quantity of the best butter – it is the consent and the ability to avoid, not the quantity and the nature of the benefit that is important.54 Perhaps a concluding comment to this subsection is in order. If indeed we have reached the conclusion, following Nozick and Simmons, that the fair play argument fails, it might yet be too quick to claim that it obviously fails in intergenerational collective cases as well. In fact, it might be argued that our subject matter differs from the usual point that the fair play argument seeks to make, that is, a justification for the state’s authority. Rather, the concern of this study is redressing past injustices. Should such past wrongs be left without redress because the fair play argument, which was created to achieve a very different goal, fails? Here it is important to remember a point which was presented at the beginning of this subsection: we are not discussing cases in which particular persons’ claims to specific property have been proven to originate in a past wrong and therefore are probably illegitimate (such cases were discussed in Chapter 3). Rather, the fair play argument, as it is used in cases of historical injustices, aims to justify holding all the citizens of a given state to be beneficiaries of a past wrong, and therefore under a duty of redress regardless of their particular connection to the past wrong (remember, all the original wrongdoers have passed away) and the diffusion of the benefit.55 In such a case, the argument from fair play/ benefit is the argument that is doing the work here (“we all benefit, therefore we are all obligated to bear the costs”), not any particular 79

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freedom from past injustices benefit enjoyed by a specific individual. If, therefore, the fair play argument fails, so does this particular justification for redressing past wrongs.56 To conclude this section: we have examined whether three frequently repeated collective responsibility creators – identification, participation and benefit – can justify intergenerational collective responsibility, which would in turn justify intergenerational redress. We have reached the conclusion that all such attempts are not convincing. While specific persons who enjoy an unjust enrichment are under a duty to offer restitution to the descendants of deceased victims of past wrongs (under the caveats examined in this section above), the body of citizens as a whole should not usually be burdened with the cost of rectifying past wrongs. Special attention was given to the “benefit” argument in order to establish that receiving a benefit, in and of itself, cannot ground obligations. The rejection of intergenerational collective responsibility may bring about the question: where does this conclusion leave the descendants of the deceased victims of past wrongs? This is a troublesome question, as if there are ongoing consequences to the past wrong, yet intergenerational collective responsibility is rejected, the descendants may end up empty-handed, an obviously problematic scenario. We therefore move to the next pro-redress argument grounded in collectives: cases in which there are ongoing consequences to the past wrong, but no identifiable wrongdoers.

4.B Who Should Pay? Collective Responsibility and Luck If, indeed, the conclusion of the previous section is correct – that arguments attempting to justify intergenerational redress via collective responsibility fail – a question arises regarding cases in which there are ongoing consequences to a historical wrong, yet no one bears responsibility for such consequences, and therefore there is no one who will bear the burden of redress. If this is a plausible scenario, it is a challenge to the conclusions of the previous section, and needs to be addressed. This section examines what should be done in exactly this type of scenario: a wrong was committed by A (a well-defined collective, although, obviously, not all the members of this collective participated) against B (a large number of people). The wrong was not redressed before all the members of A and B passed away. In this scenario, the descendants of A have either not gained 80

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thinking about collectivities, states, and nations any benefits from the wrong57 or there is a genuine disagreement regarding the benefit, such as: who has the valid property claim, the descendants of the original victims or the current owners (see the real-life example below). The descendants of the original victims, however, still suffer from the results of the wrong. They may suffer a lack of resources that their parents, grandparents, etc., would have passed to them – similar to the scenario discussed in Chapter 3 – or they may claim that they have a right to restitution following what they perceive as a valid claim to property that belonged to their forefathers. Now, if they are entitled to material redress, who should bear the cost of it? Let us assume that no existing people bear responsibility for this wrong, as the conditions for attributing responsibility are missing. Suppose further, that other attempts to justify such redress via, for example, intergenerational collective responsibility fail as well. A pro-redress argument might examine the failure of all those attempts and argue the following: the anti-redress “camp” has won. No obligation to redress exists. However, this is a bitter victory, as the results of the past wrong remain in the form of at least two phenomena: first, the reduced current welfare of the descendants of the original victims; and, second, without redress the profits and assets which resulted from the wrong remain in contested possession – especially in cases of “diffused” benefits, which are impossible to trace, or in cases in which it is unclear who has the strongest claim to the property at hand, resulting, many times, in a pro-status quo decision that the current owners have the strongest claim to this property. If these are, indeed, the consequences of the anti-redress argument’s success, then it is a rather unfortunate philosophical “victory” with unhappy real-life consequences. This scenario is not unique to cases of historical injustices, it is a familiar scenario in tort law (as will be discussed below). While I am not aware of any direct attempt to apply this line of argumentation to historical injustices, it promises intriguing insight into the issue of historical injustices. If the failure of arguments in favor of redressing historical injustices is a problematic conclusion in cases in which there are ongoing consequences to the past wrongs, how should we proceed? It seems that our examination of this scenario should be split according to the two undesirable phenomena formulated as consequences of the failure of the pro-redress arguments. The first, has to do with the current welfare situation of the descendants of the original victims; 81

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freedom from past injustices the second, with the problematic retention of the benefits where they currently reside. I will examine the former first. 4.B.1 The Current Welfare of the Descendants of the Original Victims The argument here is that, even if there is no justification for redressing past wrongs, someone owes something to the victims – even if they are indirect victims. Let us distinguish between several different potential cases. (1) The descendants of the direct victims are substantially below the average social economic well-being in their society. (2) Calls for redress indicating less precise victims, often members of entire communities rather than strictly identified descendants as eligible for compensation. Such calls typically demand that the society at large participates in funding the redress, usually through taxes rather than voluntary contributions. I think that the first kind of case is very different from the second. If strictly identifiable descendants of the victims of past wrongs are below the average welfare of a given society, they may have a justified claim for assistance – although not necessarily redress. Such scenarios focus on individuals and, as examined in Chapter 3, valid cases of such individual-based claims are sensitive to the passage of time once the original wrongdoers and victims have died. For various reasons (information, counterfactuals, etc.), the ability of this argument to support intergenerational redress is limited, yet valid. In most cases, a welfare state should provide the most adequate solution, rather than intergenerational redress. The second scenario is much more familiar and has been raised often: the members of a particular community – national, ethnic, or any other group – are not faring well in a given country, as evidenced by the usual welfare indicators (education, income, etc.), and they argue that the cause is a past wrong. While the direct victims of this wrong have died, there is a connection (the argument goes), between the past wrong and the current situation of the members of this community. Some often repeated connections to current situations include a less than equal starting point from that enjoyed by other members of the society, which can be traced back to the past wrong,58 and, in some cases, a mental association with the oppressed members of this community at the time of the wrong which functions as a mental barrier.59 If, as the argument goes (and as probably some members of this community claim), the arguments for redressing past 82

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thinking about collectivities, states, and nations injustices fail, the community members will be left in their current state, an unfortunate outcome. This argument, I think, is rather weak as the community members are not strictly identifiable descendants of deceased victims of past wrongs, which raises familiar demarcation problems. Objections regarding the non-identity problem as applied to cultural groups will necessarily arise (as examined in Chapter 2). Furthermore, with the passage of time it becomes increasingly difficult to demonstrate the connection between a past wrong to the welfare of an entire community. As the evidence for a causal connection is weak, the justification for imposing costs on contemporary citizens in order to fund compensation will be weak as well.60 These problems will worsen as time passes, and I therefore move to consider the feasibility of mental association creating an intergenerational connection. The argument from a mental association may or may not be a reliable description of community identity. In any case, it is hardly a strong justification for redress, since it is either too remote from the actual61 past wrong or because it cannot justify obligating existing people (who are non-wrongdoers) to participate in funding redress. Further, it certainly will be vulnerable to the non-identity objections discussed in Chapter 2. It may be the case that the solution to such a situation lies with considerations of distributive justice, and not redressing past injustices. 4.B.2 If there is no Redress, Whatever Assets or Profits Resulting from the Wrong Remain where they Currently Reside Here a real-life example might help to shed light on the complexity of this specific concern. In the Linda and David Orams case,62 a British couple bought land from a Turkish Cypriot and then built a villa in the northern part of Cyprus. The original owner, a Greek Cypriot (Meletis Apostolides) who fled the area in 1974 (following the Turkish invasion), sued the Orams and, after long and complex litigation in Cyprus and in England, won the case (including the return of his land, a court order for the Orams to demolish the villa, and various damages and expenses) at the European Court of Justice.63 If the case would have been decided in the Orams’ favor, the Greek Cypriot would have been denied his claim to his property, while the Orams – and whoever sold the property to them (a third party) – would retain the property and the value of the sale. This case has 83

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freedom from past injustices additional consequences for the legitimacy of the Turkish republic of Northern Cyprus as a whole, for further land-related businesses in Northern Cyprus, and similar scenarios in other disputed locations.64 The Orams’ case is not the only case in which property claims in Northern Cyprus were examined by courts. In Demopoulos and others v. Turkey,65 the rights of Greek Cypriots to take action to recover their property in Northern Cyprus were examined and the court rejected the petition of the Greek Cypriots. I choose the Orams case exactly because the court sided with the Greek Cypriot, and therefore the passage of time might prove to be a relevant variable, as follows. Now, obviously, the Orams case is not a historical injustice as defined in Chapter 1, since the direct victim (Meletis Apostolides) of the past wrong (the Turkish occupation that resulted in forced expulsion from his land) is still alive. Let us change the scenario a bit, therefore, and ask whether the court decision should have been different if the petition were made after both the Orams and Meletis Apostolides died. In the re-imagined case, it is the grandchildren of both parties that are arguing against each other. Who has the stronger interest in this property in such a case? This is a complex question which, perhaps, belongs in the conclusion of this book. In this subsection, I am primarily interested in a narrower perspective, as follows: if the decision favors the interest of the (hypothetical) grandchildren of the Orams over the interests of the (hypothetical) grandchildren of Meletis Apostolides to this land, the ownership will remain where it currently resides (i.e., under the ownership of the descendants of the Orams); and perhaps such a preservation of the status quo would be unjust. While the “current” inhabitants have no relation whatsoever to the wrong, the original fashion in which the land became available for the (hypothetical) grandchildren of the Orams followed a past wrong: the Turkish invasion and the expulsion of the original inhabitants. To avoid confusion, let us grant, as was indicated at the beginning of this section, that all other pro-redress arguments have failed in order to isolate the “value remains where it currently resides” argument. (Naturally, it may be the case that, in order to evaluate cases such as that of the Orams, more than one argument will be required. Nevertheless, for the sake of clarity, let us accept this assumption here.) If the other pro-redress arguments, such as the instability of property rights or ‘benefit’, have failed or are unhelpful, the case for restitution rests only on the notion that, perhaps, the current inhabitants do not deserve this property. However, the current inhabitants 84

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thinking about collectivities, states, and nations took no part in the wrong and have, after all, paid for this land (as the “original” Orams did). The case for redress focuses on the original obtaining of this property, and that is a weak argument that may even violate the rights of the current inhabitants.66 In order to justify such a focus on the origins of the property, and the ability of such “origins” argument to trump the current inhabitants’ interest in this property, we shall have to assume that property rights are stable and that changes made to the property have not changed it beyond recognition, and that the entire set of considerations examined in Chapter 3 do not apply – with the result that the descendants of the original inhabitants will have the stronger claim – but how likely are such assumptions? As was shown in Chapter 3 – not very likely. We also need to consider that the current inhabitants are not wrongdoers (who, let us remember, were the invading Turks who caused the displacement in the first place), and have a right not to live in constant fear of legal intrusions into their lives and property.67 Holmes’ famous words might be relevant here: “The general principle of our law is that loss from accident must lie where it falls.”68 The situation of the hypothetical grandchildren of Meletis Apostolides is indeed that of an accident: they suffer from a bad situation that is not the fault of any living person. This is an accident, therefore, a misfortune. Holmes’ claim poses further questions for our inquiry. If indeed the interest of the current (hypothetical) grandchildren of the Orams to own this property is stronger than those of the (hypothetical) grandchildren of Meletis Apostolides, then the situation of the Apostolides family, while not the fault of any living person, may be regarded as a misfortune. This raises the question, therefore, of what should be done with misfortunes (“accidents” in Holmes terms). That is, what should be done in cases in which X suffers a loss that cannot be attributed to the act of another living person? Here there are different opinions. Many libertarians argue, like Holmes, that misfortunes lie where they reside. As no one violated the rights of the original victim’s descendants, it would be unjust to impose costs on non-involved third parties; the misfortune must lie where it currently resides.69 Some left liberals argue, alternately, that misfortunes lie not with the person suffering the misfortune, but – at least in cases of severe misfortune – with the society at large.70 This view explains why cases such as those of the Orams belong in the “collective responsibility” chapter – if the requirements for a just solution to this case lie with the collective as a whole, this is a case 85

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freedom from past injustices of intergenerational collective responsibility. Note that, even if one were to adopt the left liberal solution, the specific property under consideration will remain with the current inhabitants; whatever the redress granted to the hypothetical grandchildren of Meletis Apostolides, it will be funded by the society as a whole, not solely by the current inhabitants, and therefore does not mean restitution of the disputed property or that such redress is, strictly speaking, a case of corrective justice at all. Indeed, even if one were to adopt the left liberal perspective that costs resulting from misfortunes should be borne by the society at large, this cost-sharing is warranted as distributive justice, not as redress or corrective justice. A moment’s reflection will reveal why this is so: the society at large is not responsible for the original wrong (this is obvious), the beneficiaries (the grandchildren of the now deceased Orams) cannot be said to have done wrong, and have a justified claim to the disputed property. Therefore, the situation of the grandchildren of Apostolides is best described as a case of a misfortune, as it is not the result of a wrong committed by any living person. If one were to adopt the left liberal perspective, the solution would therefore be for the society at large to grant assistance in such cases, rather than allow the continued suffering of those affected by such misfortunate. Thus, this is a policy of (re)distribution, rather than compensation or restitution.71 Before concluding this section, two interconnected remarks are appropriate. First, from the perspective of the hypothetical grandchildren of Meletis Apostolides, the conclusion reached may seem overly formalistic. They lost their claim to this property and, as no living person is to blame for their situation, their case is defined as a misfortune from the perspective of the society, similar to other misfortunes. If assistance were to be granted to them, it would follow the logic of distributive justice, not corrective justice. While their perspective does not change this conclusion, it may, in some cases, provide a different kind of reason for offering assistance in such cases; at least following prudential, forward-looking considerations (and see Chapter 5 for a detailed discussion). Second, some may argue that the hypothetical grandchildren of Meletis Apostolides are not entitled to any assistance: if they do not have a strong claim to the disputed property, and their loss is merely a misfortune, why should the society at large bear the cost of assistance, be it for distributive or corrective justice considerations?72 While such views have merit, they underestimate the loss, its impor86

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thinking about collectivities, states, and nations tance, and perhaps the emotional pain involved in this case. Perhaps an overly formalistic view here is unhelpful, as the emotions of the losing side in the struggle over ownership should not be ignored. This is a problem with the libertarian position. Worries about stability and forward-looking reasons may, in some cases, justify some form of redress here, a topic to be examined in Chapter 5. This ends our discussion of a scenario in which there are ongoing results to past wrongs but no identifiable wrongdoers. I will now consider a different collective-based attempt to justify intergenerational redress: contracts and promises. The argument from contracts and promises is very different to the arguments for collective responsibility examined so far: it is purely collectivist – much more than the three “collective responsibility creators” examined above, and it was used in a famous attempt to justify redressing past wrongs. It therefore merits an examination, to which I now turn.

4.C Contracts and Promises This section examines the argument that redressing past wrongs is justified following the importance of promises made in the past by one’s government. Before we proceed to examine the details of this argument, two preliminary points are important. First, the argument from “promises” is limited to those cases in which the government made such a promise or a contract at an earlier point in time. It is thus limited to some cases of past wrongs only. Second, the argument from promises entails a strong collectivist approach, as the persons living at the time of the promise and current people will have to be connected in some fashion, usually through the assumption that they belong to the same collective. The unit of analysis, so to speak, is the collective.73 As we shall see below, this is not a trivial assumption to make. Having clarified these two preliminary points, I now turn to the actual examination of the “promises” argument. Some scholars argue that if state A signs a contract with state – or well-defined group – B, and violates it afterwards, there is an obligation to correct this violation.74 The analogy is that national actions should resemble the required conduct between two individuals: if individual A promises something to person B, and breaks her or his promise, she or he should bear responsibility for redressing whatever damage was caused to B following this failure. This obligation holds even more if person A never intended to fulfill her or his promise, having merely misled person B to believe that the promise was made honestly (as the 87

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freedom from past injustices wrong of “misleading” is added to the wrong of a broken promise). Contracts, in this view, are merely one subcategory of promises.75 Why are promises so important that moral reproach to those who fail to fulfill their promises is justified, even to the point of justifying, in some cases, a legal sanction? Two reasons are often suggested in various, though sufficiently similar, versions. The first reason concerns forward-looking concerns: it would be very difficult to live in a society in which promises were never kept; our ability to pursue long-term projects would be greatly diminished in such a society. Therefore, the social institution of making promises is sufficiently valuable to justify both the moral reproach that follows a promisegiver failing to behave according to his or her promise, and, in some cases, further legal sanction.76 The second reason is that there is something intrinsically valuable in the process in which A makes a promise to B. This value is evident even if, in a case in which the promise is broken, no tangible damage occurred to B. Something in the broken promise itself creates a damage to B that justifies moral reproach, and perhaps even legal sanction against A. This damage, while intangible, noticeably affects the well-being of the promisee, B in our example. This harm has been defined in different ways by different scholars, including two prominent opinions: first, the psychological feeling connected to the “attitude of expectancy”77 that B developed or, a second version, “the value of assurance” which is given to promisees,78 and is perhaps a right that they have independent of the material loss suffered as a result of a broken promise. It is an open question if these two “intrinsic” promise arguments are distinct, as both of these arguments share the principle that breaking a promise harms the promisee, even if no material damage was done, and regardless of the social value of promises as a whole to the society. In both explanations of the importance of promises above (forward-looking reasons and the intrinsic importance of promises), if the promise was made in normal conditions, and the promisor has no relevant excuse for breaking the promise, the promisee may attribute responsibility for the violation and damage to the promisor. In other words, if the promisor broke his or her promise, he or she needs to bear the costs resulting from this failure (including intangible costs resulting from breaking the “assurance” state of mind of the promisee). So far, so good. Let us assume that the arguments just presented successfully justify a moral reproach, even, in some cases, 88

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thinking about collectivities, states, and nations legal sanction, in cases of broken promises between two individuals.79 However, it is not an easy mission to transfer this logic to, first, collectivities, and, second, to intergenerational collectivities. J. Thompson argues that, following the logic presented above concerning individuals, if a state signs a contract, it is under a duty to meet its obligations in this contract. Further, if it did not meet its obligation in this contract, it is under a duty, following the two approaches discussed above, to meet the conditions of the promise and to offer reparations of some sort if appropriate.80 Is it possible to move from individuals to states in considerations of promises? I have my doubts.81 There are several problems here. The first has been noted by David Miller82 while arguing, against Thompson, that the argument regarding promises (adopted by Thompson) attempts to justify keeping promises. But Thompson is making a different argument altogether: namely, that promises are so important as to justify obligating persons who made no promise to bear the burden of redressing broken promises made by other people. Miller, I think, is right to point to this structure of Thompson’s argument. Thompson may, however, answer in the following ways, although these are fairly unattractive options. Thompson may argue that although the promisors have all died, and therefore the persons bearing the cost of the obligation are different people (than the promisors) as they were born after the wrong, they all belong to the same group and, therefore, are all similar enough. Different generations of a polity, according to Thompson’s argument, are – like happy families in Tolstoy’s famous novel – all alike. A British citizen who was born to Pakistani immigrants in London in 1990, and a British politician who made promises to indigenous people in New Zealand in 1840 are as similar as two drops of water. In such a fashion, Thompson may respond to Miller’s critique by arguing that it does not apply to her argument: the promisors and the “fixers” are not sufficiently different as individual people as they are members of the same collective. However, this collectivist view is, frankly speaking, very difficult to accept, following several reasons: first and foremost, it violates the Rawlsian dictum of separateness between persons; second, it does not allow the freedom to disassociate from acts not conducted by the current generation of persons – even if such persons are not wrongdoers – regardless of their approaches toward past wrongs; finally, it assumes that the victims are identifiable as well, regardless of non-identity problems (discussed in Chapter 2). 89

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freedom from past injustices Now, even if one were to accept this collectivist view as reasonable, it was obviously absent from the original arguments described above regarding the normative importance of promises. Let us return to the two justifications for the moral importance of promises and add this collectivist assumption in order to reconsider the results. The first argument for the importance of promises was that they are valuable as a social institution, as it is almost impossible to make long-term plans without them. However, introducing the collectivist qualification will surely diminish the ability of promises to ground long-term plans. If a British citizen born in London to Pakistani immigrants in 1990 is expected to bear the burden of redressing the broken promise made to indigenous people in 1840, the funds will come out of his or her taxes (if we imagine a special “mending past promises tax”). This will diminish his or her future options as his or her ability to use resources for a goal, such as attending higher education, will be diminished.83 This point may be generalized, of course: expecting a person born after a wrong occurred to internalize the cost of redressing a promise that she or he did not make will limit that person’s options either by taking a portion of his or her private property which might have been used to further some other goal, or by limiting his or her choices in some other way.84 Furthermore, the actual collectivist logic that the contemporary citizens are one and the same with the British politician of 1840 diminishes the trustworthiness of the institution of promises, further harming the institution that is supposed to be defended by this line of thinking. Note that this current citizen clearly does not understand his or her identity as similar (and certainly not identical) to the original promisor, indicating a further problem of the collectivist approach. Does the second justification for the importance of promises – the “value of assurance” of the promise – fare any better? The collectivist aspect complicates this approach so significantly that it might contradict the “value of assurance” justification itself. In the original formulation, the promisor and the promisee together create this “value of assurance,” whereas in the intergenerational collectivist case, this special connection between the promisor and the promisee is absent. All the original promisors and the promisees have died (according to the premise of a historical wrong, as defined in Chapter 1). The (perhaps) relevant persons living today made no such promises to each other. That special connection between them is missing. In order to revive the argument, we need to re-create this missing con90

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thinking about collectivities, states, and nations nection, but this time externally, without the active involvement85 of the promisor or the promisee. This “external” involvement imposes a situation in which the (replacement for the original) promisor will take upon her- or himself the cost of redress, and the replacement to the original promisee takes upon her- or himself the identity of the wronged side. These substitutions seem to be in direct opposition to the logic of the “value of assurance.” The value of assurance stems from the voluntary agreement between two partners. The external perspective, which introduces the new quasi-order “fix contract!” to two large aggregations of individuals, even though all the individual members took no part in the original promise/contract, does not express a mutual agreement. As a result, this naturally does not create the feeling of assurance. If anything, it calls attention to a lack of assurance, as a promise is now imposed on two aggregations of individuals who made no such agreement and, in some cases, feel very little or no relation to the past agreement. It is unlikely that a feeling of assurance will arise from situations in which agreements and promises are externally imposed on individuals in such a fashion.86 Therefore, the “value of assurance” argument for the importance of promises fails to justify intergenerational redress once the “collective” variable is added to it. Can the intergenerational promise argument be saved in a different manner? Perhaps it may be argued that promises are so important as to justify an obligation to correct broken promises, and that this obligation actually should be applied to persons different to those who made the original promise. This is a promising path, as it does not require the controversial collectivist assumption that the original promisors and current persons are one and the same.87 Let us examine this idea carefully. Are there cases in which a given promise is so important as to expect other persons to assist in keeping it, even though they are unrelated to the act of making the promise? If, for example, my brother made a promise to marry a woman and then, on the night of the wedding, decides not to show up, I may feel that it would be right to assist with the expenses of the cancelled wedding. But such an example differs from a general duty to correct broken promises. In the wedding example, my relation to the promisor is clear (he is my brother after all), the identity of the promisee is clear (the would be, but eventually not, wife), and – perhaps most importantly – I decided to help in covering the expenses of the cancelled wedding independently of the dictates of the legal system. 91

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freedom from past injustices (Note that the correction here is dissimilar to the content of the promise – the redress is monetary, not the wedding itself.) If an argument were made that stressed a general obligation to correct other person’s broken promises in historical injustices scenarios, it would lack all three of the basic components it would require: the identity of the “fixers” and their relation to the original promisors is unclear; the identity of the promisees is unclear as well (following the considerations examined in Chapter 2); and, lastly, the decision to “fix” the broken promise would not be freely made by the “fixers,” but rather by the legal system, which will also have to decide the identities of the “fixers” and promisees. Such a scenario is fairly radical and may even violate important liberties of the “fixers,” who may consider their legal duty to “fix” the broken promise as arbitrary and unjustified.88 To summarize, the “promise” argument for redressing past wrongs in intergenerational “collective” cases fails in the “forward-looking” version, the “intrinsic value” version, and the “promise as so important as to justify correction by the non-promisors” version.89 90 Before moving to the next section, however, one last comment: some readers might wonder what is the relation between the argumentation concerning promises and contracts following past wrongs, and the general commitments states take upon themselves, some of them intergenerational? States do take upon themselves intergenerational commitments quite often – how can this fact be reconcilable with the argumentation presented so far? There are two major ways to answer this fair objection. First, the commitments states take upon themselves may be justified in a way that takes as the relevant agent the state itself, not the citizens of the state. This will increase the stability of such commitments, but will create a puzzling phenomenon – if the consent of the individuals within the state does not justify the normative strength of the commitment, what is the source of this commitment? It seems that there is a complete disconnection between the state and its citizens. This is a classic “billiard ball” view of the state, and it is very far from the individualistic premises of the current work. I doubt if the “billiard ball” approach is satisfactory, as it ignores the entire liberal tradition of a legitimate government – established following the consent of the demos;91 furthermore, it would make it difficult for the citizens of the state to disassociate themselves from commitments; and, lastly, the “billiard ball” view seems to be in tension with the normative importance of the “reliance interest” (explained above) intrinsic to the non-consequentialist justification for promises, as the 92

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thinking about collectivities, states, and nations “billiard ball” view creates a substantial gap between any notion of consent and the state’s commitments. The conclusion of these three considerations is that the “promises and contracts” view cannot rely on a “billiard ball” view to advance its approach. A second, and more plausible, explanation for the commitments of the state might follow the current and forward-looking interests of the current citizens. This version found its classical expression by Hume: “Hence I learn to do a service to another, without bearing him any real kindness; because I foresee that he will return my service, in expectation of another kind, and in order to maintain the same correspondence of good offices with me or with others.”92 This is a classic expression of a forward-looking justification for meeting one’s commitments, and, in the context of intergenerational commitments, the commitments made by previous generations. This requires, however, an evaluation of forward-looking considerations in the context of redressing past wrongs, the subject matter of Chapter 5. At this point, it is sufficient to infer that it is possible to explain intergenerational commitments of a state,93 but that such explanations do not necessarily apply to the context of redressing past wrongs. The conclusion is that the “promises and contracts” view cannot rely on the factual description of intergenerational commitments in order to advance its view, with a possible exception that stems from forward-looking considerations, to be examined in Chapter 5. This concludes our examination of the “contracts and promises” approach, and I now move on to discuss Jaspers’ metaphysical guilt. This concept has been recently re-worked to support intergenerational redress without the problematic attribution of moral or legal responsibility to those financing the redress, and thus deserves consideration.

4.D On Jaspers’ Metaphysical Guilt This last section of the chapter examines one of the most famous arguments regarding collective responsibility: Jaspers’ celebrated idea of metaphysical guilt. Jaspers’ ideas regarding metaphysical guilt are an important part of his famous short essay on the notion of German guilt,94 written in the immediate aftermath of the Second World War, in which he questioned the boundaries of the collective responsibility of German citizens regarding the atrocities of the war and the Holocaust. No discussion regarding collective responsibility is complete without at least a brief examination of this essay. Jaspers’ 93

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freedom from past injustices short book has been the subject of much scholarship, so my goal here is not to offer a new interpretation, but to examine the relevance of his ideas – specifically that of metaphysical guilt – to the subject matter of this book: intergenerational material redress. The conclusion of this section will be that metaphysical guilt should be separated from any notion of intergenerational material redress. I will not argue against metaphysical guilt as an independent concept, but I will try to show that it has no relation to intergenerational material redress. Karl Jaspers, in his short essay, suggested distinguishing between four concepts of guilt: criminal guilt, political guilt, moral guilt, and metaphysical guilt.95 Jaspers briefly summarizes the four concepts as follows: criminal guilt is appropriate in cases of proven violations of clear laws, and the relevant realm of examining this guilt is the court. Political guilt is connected to the actions of statesmen and citizens, who, as citizens, bear responsibility for the consequences of the acts of the state in which they live. The relevant realm of examination for this guilt is the opinion of other states and, particularly in cases of defeat, the victors. Moral guilt is connected to one’s responsibility for one’s own acts, including those done while following of orders of various kinds. The relevant realm of examination for this guilt is one’s own conscience and one’s close family and friends. Lastly, metaphysical guilt is connected to one’s status as a human being, which connects her or him to all other human beings. This connection makes him or her “co-responsible for every wrong and every injustice in the world, especially for crimes committed in his presence or with his knowledge.”96 The relevant judgment of this guilt is with God alone. Note that Jaspers here emphasizes “human being” (rather than a citizen or a member of a specific community), and “God,” as the judge, a notion which is intentionally far removed from individuals judging each other. In this section, I am interested only in Jaspers’ notion of metaphysical guilt. While his fourfold conception of guilt is intriguing, and calls for further interpretation (and for some clarification), it has already been widely discussed by other scholars,97 and those other categories overlap, to some extent, with other categories examined elsewhere in this book. It is therefore his notion of metaphysical guilt which has particularly important implications for some proredress (collective-related) arguments. Consequently, it is important, or so I believe, to examine and reject these potential “post-Jaspers” reworked pro-redress arguments. Jaspers’ idea of metaphysical guilt is not about personal respon94

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thinking about collectivities, states, and nations sibility, and does not concern itself with whether one could have avoided a certain act, mental situation, or intent, and certainly does not comment on causality. It is, in this sense, somewhat strange. What is the origin of guilt, if all the familiar sources are rejected? Jaspers’ metaphysical guilt might have roots in various sources: religious (as we can infer from the reference to God); broad notions of fellowship between humans as a whole – perhaps even as an antidote to Nazi Germany’s repulsive version of radical nationalism. If these are the sources of Jaspers’ thought, then they are private, both as Jaspers’ innermost beliefs and as separate from moral and legal responsibility. Such metaphysical guilt simply does not concern the legal system, nor moral judgment: it belongs in a different sphere. As such, metaphysical guilt might be quickly dismissed as irrelevant for an examination of the case for and against material redress for historical injustices; as redress for historical wrongs involves those exact notions that metaphysical guilt does not: individual moral and legal responsibility. However, there may be further motivation, or reasoning, for considering metaphysical guilt. After the different concepts of guilt are introduced, Jaspers adds a brief comment to his concept of metaphysical guilt: “The metaphysical guilt results in a transformation of human self-consciousness before god . . . this self-transformation by inner activity may lead to a new source of active life . . .”98 This “new source of active life” presents a new, public aspect in the (so far) private metaphysical guilt. If metaphysical guilt can lead to a change in one’s behavior, there is a strong motivation to create this kind of guilt. Why? From a strictly private issue, a strong motivational tool for potentially different, and perhaps better, behavior can be developed. While Jaspers himself did not pursue this line of thought in his short essay, others did. Specifically, Larry May, in his important book on the topic of sharing responsibility, recognized this motivational aspect of metaphysical guilt. As he writes: Those individuals who can, but choose not to, distance themselves from groups that are contributing to harm are metaphysically guilty and also morally responsible for, in the sense of being morally tainted by, the harms caused by their fellow group members or institutions . . . from a moral perspective, it is vitally important that people continue to feel motivated to shape and reshape their communities . . .99

May, here, is using Jaspers’ concept, but with significant changes. First, what is, in Jaspers’ version, humanity as a whole, becomes, in 95

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freedom from past injustices May’s version, the members of one’s community.100 Second, May introduces a connection between metaphysical and moral guilt. This is possible, May argues, because being born to a specific community bears moral consequences.101 Even if a person is not personally responsible for harmful acts committed by her or his community, and even if she or he could not change them,102 this person may still be morally tainted.103 As May writes: “it is necessary to think about the relationship between responsibilities and communities. By feeling motivated to avoid the taint of community associated harm, people will see their moral responsibilities as calling for involvement in what their fellow community members are doing.”104 I think that this shows that May distances himself from Jaspers’ original usage of the term. It would be of interest, therefore, to determine if his transformation of Jaspers’ idea retains the potential of the idea or changes it beyond recognition. May is correct to observe that making people feel guilty is a powerful behavioral tool, especially if people surrounding them treat them in a manner that makes it clear that they are indeed guilty. If we assume that persons are averse to imposed feelings of guilt, and certainly do not like being treated as guilty, then they will try to distance themselves from such a situation. In the context of intergenerational redress, therefore, it is correct to observe that attributing guilt to persons may be the first step toward a successful redress request, as it is plausible that persons will be more willing to consent to a redress scheme if participating in a redress scheme can ease the feeling of guilt, as is reflected by the reaction of others toward them.105 I do not doubt May’s empirical observation, but I do doubt that it is a tactic that can be justified. Let us review the argument, starting with Jaspers’ and moving to May’s version: (1) a person is metaphysically guilty as a person, merely as a human, following his or her connection to other human beings (Jaspers); (2) a person is metaphysically guilty following his or her birth to a specific community (May); (3) even if he or she could not change the acts of this community (May); and (4) following from this, he or she will be motivated to act in a just fashion (May and perhaps Jaspers). It is obvious that May is using the term “metaphysical guilt” in a different sense than Jaspers and that, frankly speaking, there is something objectionable in his usage of this term. Since with metaphysical guilt (in May’s meaning) there is no issue of individual responsibility, nor any option to change the relevant com96

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thinking about collectivities, states, and nations munity’s behavior (or to exit it, as membership is usually ascribed in a non-voluntary fashion), questions arise about the ascription of guilt. Being born to a specific community is an arbitrary fact, thus the external ascription of metaphysical guilt in order to motivate acts such as redress following past wrongs seems unfair. This is an unattractive argument as it means a person cannot avoid guilt, and yet he or she is guilty nonetheless. This is very far from the concept of responsibility, introduced in Chapter 1, in which voluntariness was a central aspect. Even the three CRCs discussed above in this chapter (identification, participation, and benefit) are missing. The only relevant variable here is being born within a given community, which is the only ground for holding a person responsible in May’s approach. Metaphysical guilt, therefore, is better left for the privacy of one’s soul, as in Jaspers’ original usage of this concept. It is certainly not an argument that may be used as a justification for intergenerational redress.

4.E Concluding Remarks This chapter was somewhat lengthier than previous chapters because attempts to justify intergenerational redress through collective responsibility vary greatly, and it took time and patience to unpack these ideas. It seems that once the idea of plurality of religious beliefs, ethnic identities, ideological conceptions, etc. within large groups is adopted as a starting point (as is indicated by the quote from Dworkin at the beginning of the chapter), the idea of collective responsibility suffers a substantial setback. In fact, a skeptical view of the idea of “collective” follows naturally from the internal plurality of such large groups. Another important setback to the idea of collective responsibility was revealed through our analysis of the three CRCs, and especially the often repeated argument of “benefit,” by distinguishing between benefit directly granted to a specific individual, and indirect and diffused benefits granted to a collective. This weakens the already suspect “benefit” argument. We concluded that the benefit argument cannot, in the vast majority of cases, justify intergenerational redress. Our examination of the variety of other attempts to justify intergenerational redress, following ideas of collective responsibility, resulted in similar skepticism. Ideas of collective responsibility do not sit comfortably with ideas of individual responsibility and individual liberty. It is, therefore, fitting 97

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freedom from past injustices that they will find very little support when an examination begins with individualistic premises. The next chapter examines two main issues: forward-looking considerations for and against redress, which differ significantly from the arguments considered so far; and the examination of a specifically important case of a justified redress claim.

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Chapter 5

Intergenerational Redress and Forward-looking Considerations, and the Remaining Case for Redressing Past Wrongs

A. Forward-looking considerations; forward-looking considerations and intergenerational redress: a general evaluation; improving intercommunal relations; deterrence; efficiency. B. The remaining case for redressing past wrongs (the Maria Altmann case as paradigmatic). This chapter aims to cover two subject matters: forward-looking considerations regarding intergenerational redress for past wrongs; and, following the various arguments critiquing intergenerational redress examined in previous chapters and the first part of the current chapter, an analysis of a justified case of a claim for intergenerational redress. Forward-looking considerations with regard to intergenerational redress differ from the pro-redress arguments examined so far, as they do not focus on the past wrong, harms to victims, or the obligations of the wrongdoers and their beneficiaries. Rather, they consider such issues as relations between communities, resumption of economic activity, and deterrence. Such arguments shift the focus of the debate from the wrongdoers and the victims to the society at large, and as such merit distinct attention. As we shall see, some such considerations support material redress, and some do not. The second part of the chapter examines a justified (and successful) claim for redress: the Maria Altmann case. This example illustrates the way in which the critique of intergenerational redress claims presented in this book is not dogmatic or overly strict. This section provides the details of an intergenerational claim for redress that meets the precise conditions, identified in the previous parts of this book, required for such a claim to be successful.

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freedom from past injustices

5.A Forward-looking Considerations 5.A.1 Forward-looking Considerations and Intergenerational Redress: A General Evaluation Forward-looking considerations for (or against) redressing past wrongs constitute a family of arguments that is very different from those examined so far in this book. So far, this book has focused on arguments regarding the wrongdoers (or their beneficiaries), and the victims (or their descendants). The basic conviction of these arguments was that if A wronged B, A owes something to B. The problem of historical wrongs and rectification is that any clear connection between A and B has been severed, as all the original A’s and B’s who lived at the time of the wrong have died. In previous chapters we examined different attempts to overcome this double decoupling (i.e., that the payer is not the wrongdoer and the claimant is not the victim) by, for example, claims that property rights survive the death of the original victims, group-centered arguments, and so on. All such attempts recognized, in some fashion, the centrality of the wrongdoer–victim connection (in the sense that the wrongdoer owes something specifically to the victim1), and attempted to overcome the severance of this important connection. In the forward-looking “family” of arguments, the focus shifts from the wrongdoers and the victims to the society at large. Such arguments, while concerned with and responding to a past wrong,2 are indifferent to the most basic building block of our examination. Beginning with the first chapter, this work has emphasized the perspective that the fact of the passing away of the original wrongdoers and victims poses a serious impediment to any attempt to justify intergenerational redress. Forward-looking considerations aim to overcome this obstacle by emphasizing very different considerations. The general argument of this “family” of considerations is roughly as follows: as long as the past wrong creates ongoing consequences – poor relations between communities within one state, the perceived failure of deterrence for future cases, or impediments to economic activities – then some policies that address the wrong are justified as a way of dealing with such ongoing problems. Such policies may be for or against redress, depending on the specific problems that follow from the past wrong and the particular circumstances of a given society. The questions at the center of our discussions so far – individual and collective responsibility, the stability of property 100

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forward-looking considerations rights, and so on – are irrelevant to forward-looking considerations. Instead, the focus is the future well-being of the society at large, rather than the particular rights and entitlements of any individual. As we shall see below, such considerations are not necessarily pro-redress as, for example, they may favor economic efficiency over redress. The reason for this ambiguity is as follows: if the future success and wellbeing of the society is the important variable (see below regarding different ways to approach such “success”), redress is a secondary policy, contingent on the specific conditions within a given society. As such, forward-looking considerations can support, or object to, redressing past wrongs, as the past wrong and the redress are simply not the focus of such approaches. There are several distinct arguments within the “forward-looking” family. Some advocate various redress policies in order to achieve better, trusting relations3 between groups within a given society or between two nation-states.4 Others make a case for reasons related to deterrence, arguing that the heavy cost of redress paid by X following case A will deter the would be (future) wrongdoer Z in similar case B. Some scholars use forward-looking arguments as a part of more comprehensive justifications of redress,5 while others insist that the only plausible justification for redress is a forward-looking argument, usually seeking the improvement in relations between different communities.6 Lastly, there are a variety of arguments, usually opposed to redress, relating to the economic consequences (or “efficiency”) of intergenerational redress, especially in the context of restitution of land – to be examined in detail below. Since these forward-looking arguments can support or object to redress, perhaps the best way to characterize forward-looking considerations is as indeterminate arguments. As such considerations focus on future goals, their approach to redress depends on the way such redress (or lack of) will be conductive to maximizing the specific forward-looking interest being sought. It is to be expected, therefore, that both pro-redress and anti-redress conclusions can be derived from this one family of arguments. Moving forward, several theorists, in examining the relations between backward- and forward-looking considerations in the context of intergenerational redress, have raised the concern that reparations might adversely affect less well-off members of the society.7 In such a situation, distributive considerations, such as Rawls’ difference principle,8 will be violated by the enactment of reparations. Such a forward-looking consideration will necessarily 101

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freedom from past injustices be a strong anti-reparative consideration when those conditions are met. This raises an interesting general point: claims for the redress of past injustices, in and of themselves isolated from redistributive repercussions, cannot justify redressing past injustices. Here I would like to refine this argument. Existing persons’ claim to (setback) compensation9 following past injustices may be sensitive to distributive consequences following two different considerations. First, in order to avoid forcing the less well-off to fund setback compensation paid to the better-off.10 Second, because the strength of the claims of the descendants of victims of past wrongs to receive compensation (not restitution, see below) is strongly connected (and is sensitive to) to the decoupling problem discussed above (that it is non-wrongdoers who will bear the burden of such compensation). It is unreasonable to maintain that less well-off non-wrongdoers will have to fund compensation to better-off descendants of victims (as was discussed in Chapter 3). If, however, this is a case of restitution, the scenario is different. Holding the property or resource obtained as a result of past wrongs is unjustified as it belongs to someone else. If restitution is justified, this property should be returned to its rightful owners regardless of the economic situation of either the claimant or the person currently holding this property. It may be that the “side” that is under a duty to restore property X is indeed in a worse situation than that of the rightful owner, and that the restitution will further worsen his or her situation. But the solution is not to grant the claim to a property unjustly attained to the poorer side currently holding this property. Rather, a solution must stem from a different source that meets the guidelines of the preferred (according to the reader’s tastes), specific theory of distributive justice which applies in such a scenario. It is noteworthy that, unlike the compensation scenario, there is no “decoupling” here between wrongdoer and payer – the specific person who holds property which does not belong to him or her is the person obliged to return it;11 citizens who are not wrongdoers are not forced to pay setback compensation, and this is a significant difference between the compensation and restitution scenarios. A further clarification is perhaps required regarding a case in which a less well-off person is obligated to restore property to a person who is better-off. If the act of restitution adversely influences the economic situation of the “side” making the restitution, she or he may be entitled to assistance by the state following the redistributive theory adopted by this state. However, this situation is separate 102

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forward-looking considerations from the entitlement of the claimant to her or his property unjustly held by the other “side.” The point is that an argument regarding intergenerational redress is neither the end of theorizing, nor an “expansionist” argument that ought to include considerations of distributive justice too12 – if the argumentation offered regarding intergenerational redress makes innovative progress in the field of redressing past wrongs, that will be quite enough. Moving forward, it is important to note that some forwardlooking arguments regarding redress are empirical arguments, and therefore hard to evaluate. In an important sense, these are empirical and sociological, rather than philosophical, arguments. It may be the case that, if state A will offer material redress to either state B or members of group Z, the relations between the members of these two states or groups will improve. Or, to point to a different concern, that refusing restitution will be conductive to the quick resumption of economic activities and creating successful market activity, jobs, etc., which would benefit citizens of state A. These are, therefore, predictive-empirical arguments to be approached via empirical, rather than philosophical, assessments. For example, several scholars suggest that various kinds of reparations will damage future social relations as well as other, important interests, especially economic stability.13 The rationale behind such diverse forward-looking arguments includes the fear that offering reparations to group A, but not group B, will create hostility and jealousy, and that members of the group burdened with financing the reparations will resent what they might view as an unjust imposition (following the decoupling between wrongdoers and payers, discussed in Chapter 3). Further opposed-to-redress arguments will be concerned with efficiency and economic problems brought about by claims seeking redress for past wrongs (especially in restitution-style cases). Such restitution-style cases, the argument goes, might impede economic development, as disputes over ownership might keep property outside of the economic system, and may bring about extended legal disputes that are costly (to be discussed in section 5.A.3 below). We can add here that there is no reason to think that there is one correct prediction: it is plausible that, in some cases, reparations will be conductive to improve societal welfare, while in other cases they will not, depending on the specific conditions that exist in a particular society. Evaluating such contradictory assessments is obviously an important social and political goal. But this has very little to do with the 103

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freedom from past injustices justifiability of redressing historical injustices as discussed in previous chapters. The forward-looking arguments for and against redressing historical injustices are similar to “regular” considerations in other areas and policies in international relations or political life, and are mainly prudential and pragmatic considerations. My major contention is that, while they carry some weight when trying to decide on a policy of redress, these forward-looking arguments are less important than the arguments considered previously, which focused on the rights of victims, their descendants, the obligations of wrongdoers and their beneficiaries, and non-wrongdoers’ interest not to bear the burden of repairing a wrong they did not commit. The forwardlooking considerations are best described as second-order considerations, which apply only once the first-order considerations have been decided (meaning that forward-looking considerations help to determine the measure of redress, the proper economic policies, etc.) or when the first-order considerations prove inconclusive. Here’s why. In Chapter 1, while introducing the basic concepts used in this book, an emphasis was put on the relations between the wrongdoer and the victim, and the debt that the wrongdoer owns to the victim.14 The basic assumption was that it is specifically the wrongdoer that is supposed to repair the damage done to the victim, and it is specifically the victim that is entitled to receive this redress. This basic intuition served as the basis for the considerations of the subsequent chapters. Forward-looking arguments sever this specific link by considering very different potential responses to the fact of wrongdoing and the claims of the victims. It is no longer the special debt that the wrongdoer owes to the victim which serves as a foundational concern; rather, it is what would be preferable to the society at large. As such approaches focus on the society at large, policies that would seem worrisome when emphasizing the interests of victims and duties of wrongdoers pass without much concern. For example, if policy makers conclude that a justified restitution claim would impede an economically important project, than restitution claims will be cast aside. Conversely, if a case of intergenerational redress following the receipt of diffused and indirect goods is deemed useful to future relations between groups, such a redress policy will move forward even if no redress is justified (as no wrongdoing is committed by benefiting from such indirect and diffused goods: see Chapter 4). Such views and policies are foreign to the approach developed in the previous chapters, where the focus was individual rights and 104

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forward-looking considerations interests. Furthermore, such aggregative approaches are in danger of violating two important principles. First, the idea that only the wrongdoer should bear the burden of redress ceases to be a major concern and may thus be wrongly ignored. That is, if spreading the cost among the members of the society at large advances a forward-looking consideration, it might be chosen regardless of considerations of corrective justice and the principle of the separateness between persons. Second, the identification of the claimant as a victim (a major problem in intergenerational redress, as the direct victims have passed away, see Chapters 2 and 3) loses its importance as well: it is the forward-looking consideration that counts, not the special position victims are entitled to following the harms that were inflicted on them. If forward-looking considerations ignore the special debt that wrongdoers owe to their victims, potentially violating the principle of the separateness between persons, how problematic is this disregard? Enough to maintain that, at the very least, these should be secondorder considerations. It would be a gross violation of the rights of victims to argue that a harm should go unpunished and uncompensated following some such forward-looking considerations; and to point to a different scenario, it would be disturbing (to put it mildly) to argue that intergenerational material redress should be enacted, and financed by individuals born after a wrong has ended, following such forward-looking considerations alone. In some libertarian theories, such forward-looking considerations will be ruled out immediately for violating individual rights, particularly taking property from non-wrongdoers in order to compensate victims who suffered from the wrongs committed by others.15 Even if we stop short of adopting the libertarian valuation of property rights, there is something disturbing in the easy fashion in which forwardlooking considerations aggregate wrongdoers and non-wrongdoers, victims and non-victims. At best, these considerations, as claimed above, are secondary to more substantive arguments strictly connected to the rights of victims to compensation, and the obvious interests of non-wrongdoers not to be punished for something they did not do. It seems that such arguments should be helpful only in thinking about measures to be taken once the first-order considerations are decided; cases in which first-order considerations are indecisive or perhaps in some super-extreme cases following utilitarian calculations. If, for example, it can be demonstrated convincingly that a tiny increase in taxes used to pay material redress to the members of 105

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freedom from past injustices group A will contribute substantially to some forward-looking goal (let us say, intergroup relations), then it probably should be allowed, but only if such beneficial consequences can be demonstrated with great confidence – not a trivial matter to demonstrate.16 Having provided an analysis of the position of forward-looking considerations within the larger framework which examines the case of intergenerational redress, we can now turn to an analysis of forward-looking considerations in and of themselves. Note that, in order to better analyze the forward-looking considerations, we assume that other considerations for intergenerational redress have failed or are at least irrelevant. Thus, only the forward-looking consideration needs to be examined. I will begin with the forward-looking consideration of redress as a means to improve intercommunal relations, then briefly examine the subject matter of deterrence, and lastly provide a detailed examination of the often repeated (and antiredress) consideration of economic efficiency. 5.A.2 Improving Intercommunal Relations If the aim of intergenerational material redress is to encourage better relations between two communities, it is important to consider the responses of the would-be payers, as redress would cater to the interests of the recipients. The would-be payers, who are non-wrongdoers, can respond with indifference, anger, or resentment, all of which may adversely influence the relations between the two communities. Given that no other justification for redress exists, this may simply create cynicism toward the legal and political system. This is an expected aspect of such redress policies; however, a more complex objection is to be expected as well, as follows. Forward-looking arguments are in danger of becoming counterproductive to the exact aim following which they were created. If future consequences, such as the hope of creating peaceful relations between communities, are the decisive consideration following which policies of material redress are enacted, the would-be payers and claimants (not wrongdoers and victims) have a powerful incentive to formulate their rhetoric and claims in a manner that would be supportive of their perceived interests. Such interests are obviously the wish of claimants to receive material redress (in most cases17), and the wish of the payers not to bear the burden of such redress. It is obvious that the greater the threat (to occur in a scenario in which such perceived interests of each side are not fulfilled) of either side 106

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forward-looking considerations in the reparations debate is, the greater the likelihood that forwardlooking considerations will become a factor aiming to reduce the likelihood of the materialization of such threats. Under such a scenario, there will be an even stronger incentive to present the wouldbe response of either side in a case of a loss to one’s interests, as a severe backlash. This is so because the wish to achieve a peaceful co-existence (the end-goal) will create an incentive in which future, potential disturbances (the “backlash”) to such peaceful co-existence are a dominant tactical option for both sides. This is a clear-cut case in which the structure of incentives is unhelpful (to put it mildly), and surely not a conducive method of reaching a decision in the complex subject matter of intergenerational redress. A plausible result is that both sides will radicalize their positions, initially in a tactical manner (to achieve better results in the negotiations), but such radicalization is not easily reversible. So, for example, if the end goal of paying reparations is to create better relations between two given communities, and the interest of claimants is to receive reparations and that of payers is not to bear the cost of redress, then each community will threaten a backlash in a case of a decision to pay (the payers), or not to pay (the claimants). Such radicalized threats will probably bring about the breaking off of negotiations and further hostilities between communities. Stated briefly, emphasizing forward-looking considerations, as a decisive factor when attempting to decide on material redress for past wrongs, as an attempt to achieve better relations between communities is not likely to achieve the goal of peaceful cohabitation between communities, as the structure of incentives will bring about a radicalization of positions, threats, and demands which will undermine negotiations.18 Moving to a different, but related consideration: if the requirement for addressing and redressing past injustices is a current (bad) situation of the descendants of victims of past wrongs (broadly defined to include members of a community connected to a past wrong in some fashion, but see Chapter 2), this may create a counterproductive incentive structure, in which maintaining the bad situation of such descendants becomes a valuable interest for some. This sounds like a strange scenario (don’t people usually want to improve their situation?), however, political leadership and, in some cases, third parties, may use the bad situation of such descendants as a political card in order to achieve political goals, while cynically using the vulnerable situation of such group’s members. Such 107

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freedom from past injustices counterproductive incentives may create a situation in which the would-be payers will be under a duty to redress, or to actively pay the descendants of the original victims until they reach a certain welfare level (however it is measured) or that relations between states/communities improve. Unconnected with personal responsibility, and not temporally limited, this seems like an unjustified burden to be put on persons born after a wrong has ended (i.e., the would-be payers). To conclude, there are important reasons to approach forwardlooking considerations for redress used in order to improve relations between communities skeptically. First, as all other forward-looking considerations, their overall importance is secondary to considerations that focus on the rights of victims, the obligations of wrongdoers, and the interests of non-wrongdoers asked to bear the burden of material redress. Second, such forward-looking considerations provide a problematic structure of incentives. Individuals will adjust their behavior following such forward-looking considerations and incentives, and this point should win more attention in the overall conversation with regard to intergenerational redress for past wrongs. 5.A.3 Deterrence Moving to a different kind of forward-looking considerations: deterrence. Deterrence is sometimes mentioned as an important way in which redressing past injustices may be justified.19 The idea is that if A wronged B, punishing A is justified not only following some version of retribution (probably), but also as a signal which would deter potential future wrongdoers. Can this deterrence logic be applied to cases of intergenerational redress following past wrongs? It seems implausible, and perhaps even objectionable. Critics of deterrence theories of punishment in contemporary cases (in which the wrongdoer is alive), point to a lack of empirical evidence to support the assumption that punishment actually deters would-be perpetrators.20 Further, the infliction of severe sanctions on wrongdoers to deter others makes wrongdoers into a means rather than an end in themselves.21 Deterrence, therefore, violates the rights of the wrongdoers by disconnecting punishment from the “value” of the wrong committed (following considerations of retribution, just desert, fairness, or any other given theory of punishment).22 Perhaps most importantly, in the case of historical injustices the wrongdoers are all dead and any redressing of past injustices will be funded by non-wrongdoers. Deterrence, therefore, is separated from 108

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forward-looking considerations what it should be in a liberal polity – a by-product of punishment23 – and presented as a justification in itself. Therefore, it justifies holding innocent people responsible for redressing a past wrong in which they took no part in the attempt to deter future perpetrators of a hypothetical wrong. Such a policy should not be allowed in a liberal polity. As any other conclusion would violate our core assumption of the separateness between persons, further argumentation is unnecessary. However, some may not be convinced by the argument presented and insist that, if reparations for past wrongs are enacted, it would change the behavior of potential future wrongdoers, and that is the important variable. In such a case, we can consider the following argument. If indeed deterrence (in the form of material redress) is to be enacted, this may create a problematic backlash. One of the justifications of a legal system is to make sure that citizens follow rules, stability follows, markets function, and so on.24 But if the rules are seen as unfair, or even unjust, as in the case of forcing citizens to redress past injustices solely as a means of deterrence, the rule may become the target of public scorn. This could lead to a cynical view of the legal system itself. So, rather than contributing to the stability of the society and the following of laws, this approach might create a critical and rejectionist attitude toward the legal system as a whole. What, therefore, will follow from an insistence on deterrence is a lack of respect toward the law, contradicting the purpose of deterrence. 5.A.4 Efficiency Several commentators have expressed worries that attempting to redress past wrongs will create problems for economic and market activities. The basic concern of such commentators is fairly straightforward: if there are disagreements over the ownership of a specific property, potential owners will be locked in an extended dispute over this property. As a result, investments in this property are unlikely, as the owners and potential investors will refrain from investing resources until the issue of ownership is settled. The property itself will likely remain undeveloped or unused (depending on the nature of the property: land, money, etc.). On a large enough scale, such a phenomenon will impede the economic development of the society as a whole.25 Several scholars have suggested solutions for such scenarios, and 109

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freedom from past injustices countries moving away from dictatorships to democratic regimes provide case studies of establishing certainty (i.e., clear guidelines for establishing ownership) with regard to ownership following past wrongs.26 The goal of this subsection is to examine the solutions adopted by some of these states and scholars, but to do so under the rather strict conditions defined in Chapter 1, three of which are especially crucial. First, I am interested only in cases in which all the wrongdoers and victims have passed away. Transitions from non-democratic to democratic regimes, therefore, are not obvious examples for the discussion of efficiency, as the continued existence of wrongdoers and victims introduces rather different considerations (see Chapter 3). Second, considerations of efficiency and economic success are important, but they are not trump arguments. Far from it: this book, as established in Chapter 1 and explained above in this chapter, has emphasized the importance of the separateness between persons. If the separateness between persons is our starting point, then aggregative considerations, such as economic efficiency that may be achieved by neglecting the interests of the few, are obviously not trump arguments regarding the proper approach to uncertain ownership following past wrongs. The same skepticism that dominated the examination of collective responsibility in Chapter 4 should be applied to approaches that emphasize aggregated economic success and efficient markets, while potentially neglecting the rights of descendants of deceased victims of past wrongs.27 Lastly, regardless of the view just expressed (that efficiency considerations should win a limited place in our deliberations), in the “real” world such considerations enjoy tremendous prestige and influence, both by several academic scholars (see below) and decision makers.28 I shall therefore examine “efficiency arguments” in great detail. Once we take into account these three factors, especially the limited contribution of efficiency considerations regarding the proper response to claims for intergenerational redress, how should we evaluate the place of “efficiency” while considering claims for intergenerational redress? Efficiency is often defined via the idea of Pareto efficiency or Pareto optimality: that is, given an initial allocation of goods among a set of individuals, a situation in which a different allocation makes at least one individual better off without making any other individual worse off is called a Pareto improvement. An allocation is defined 110

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forward-looking considerations as “Pareto efficient” or “Pareto optimal” when no further Pareto improvements can be made.29 However, I shall avoid relying on the idea of Pareto efficiency (although it will be mentioned below). Whereas Pareto efficiency begins with a certain allocation and considers the consequences of further transfers, in our subject matter the initial ownership is under dispute as it may be the result of past wrongs. Especially in cases with uncertain ownership following past wrongs, Pareto efficiency seems inadequate since it would entail accepting the existing ownership. This seems inadequate, as the legitimacy of the existing ownership is what we are trying to assess. A different measurement is, therefore, required. Therefore, efficiency will be approached as the quickest, and least costly, method for returning30 property to market usability.31 32 While somewhat unusual, I think this is the most fitting way to understand efficiency in our subject matter. First, efficiency approaches, in the context of ownership disputes following past wrongs, are best characterized by the concern that disputed property is outside the economic system. Therefore, what such scholars are looking for is a way to resolve disputes regarding property that will be simple and brief. It seems adequate, therefore, to treat efficiency here in a fashion which suits this concern. Second, this is the way in which the most prominent scholar who wrote about this topic from an efficiency perspective (Richard Epstein, see the detailed discussion below) treated the subject, and it is interesting to examine the way he treated this subject. In order to examine the issue of efficiency more closely, we shall focus our attention on one specific version of the efficiency argument, as developed by the influential libertarian legal theorist, Richard Epstein. I shall first present his approach, and then examine and evaluate it. Epstein’s approach differs in many ways from the approach of this book, and presenting his approach is merely a way of examining the “efficiency” approach and should not be understood as an endorsement of his ideas. Richard Epstein33 emphasizes efficiency,34 rather than the strict protection of individual property rights (in the case of descendants of the deceased victims of past wrongs, “property rights” should be understood here as encompassing both rights to setback compensation and restitution, see Chapter 3). Epstein begins his discussion with a scenario in which current holdings of property are, to a significant extent, the result of past violations of property and other rights.35 His main concern, however, is the ongoing functionality of 111

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freedom from past injustices economic systems36 with limited governmental intervention.37 He indicates that the results of large-scale uncertainty in current holdings, and the complex and lengthy legal struggles that will likely follow, will substantially undermine modern-day market activity. If a given piece of land, Epstein argues, is claimed by A, B, and C, with no clear, simple, and relatively affordable way to determine the rightful owner, potential investors in this piece of land will avoid doing so. Given a sufficiently large scale, this translates into real harm to all those involved, especially for those either living on this land or those dependent on the economic activities which occur on it. The larger the scale of uncertainty regarding property rights, the larger the damage to economic activity, investments, jobs and so on. Epstein recommends establishing a simple rule based on a statute of limitations (hereafter, SL) on claims to property. This means a de facto end to any restitution-style claims, and probably also to any setback compensation claims.38 Now, if there have been no disturbances in the chain of legitimate ownership, Epstein’s view will largely follow the classic libertarian view exemplified by Robert Nozick: that any distribution of property is just if it is the result of justice in acquisition and justice in transfer, as opposed to any “patterned” approach to ownership of property or resources.39 Epstein argues, however, that if there has been a disturbance in the chain of holdings, full ownership should be granted to the current holders, rather than enacting a policy of rectification (after the passage of a certain period of time).40 How much time should pass41 before this SL policy is enacted, thereby justifying the granting of ownership to the current holder of the property? While Epstein does not offer a specific number of years (indeed, no general theory can offer something this specific), he does offer three rules of thumb for how to approach the issue of timing. These guiding rules actually serve as criteria by which the SL approach can be examined and judged. The first rule of thumb is that the administrative costs associated with the SL approach should be lower than those associated with any other rule attempting to solve the problem of ownership in post-past wrongs scenarios.42 The second rule of thumb is that liberty deprivations associated with the SL approach should be lower than those associated with, or resulting from, any comparable rule.43 The third rule of thumb is that the simple SL rule should create incentives (with regard to future behaviors in the context of disturbances in property rights) which are less perverse than any other combination of rules.44 112

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forward-looking considerations It is clear, after examining these rules of thumb (or evaluative criteria) for the simple SL rule, that Epstein is not a pure consequentialist given his considerations of individual liberty.45 That said, his view certainly differs from the strict deontologist views that insist that in cases of past violations of rights as a whole, and property rights at present,46 individual rights should be the decisive factor. Epstein considers large-scale systems of law and applies these rules to large numbers of cases and people. He thus aspires to create a system in which the aggregated loss of liberty is minimal.47 He thinks, in other words, less as a philosopher and more as a lawyer. We can now turn to a more systematic examination of Epstein’s simple, strict policy of statutes of limitations.48 I shall start with an examination of Epstein’s approach as a whole and then move to examine his view given his own premises specifically, starting with SL-related rules one and two (reducing costs and liberty deprivation), followed by an examination of the third rule (perverse incentives). Epstein derives his view of the interest of descendants of deceased victims of past wrongs to restitution or setback compensation from his view of property rights, which is conventional. That is, the protection granted to property rights does not stem from any intrinsic importance of justice in acquisition and transfer (à la Nozick), rather it is measured by his simple statutes of limitations rule, which in turn is decided upon following the three rules of thumb and the wish to minimize governmental intervention. For Epstein, his SL rule is best suited to advance efficiency and is probably also preferable following his mistrust of the government (especially considering the government’s probable inability to produce a policy of rectification, as such a policy would be more complex than his simple SL rule). Such conventionalism in the protection of property rights is certainly odd and somewhat insufficient: most property owners will feel uncomfortable with such a contingent (i.e., dependent on efficiency) defense of their property, including descendants of deceased victims of past wrongs. At the very least, it reduces the importance of the individual’s interest in her or his rights to compensation, restitution, and property (central to our analysis since they were introduced in Chapter 1 above), and it neglects the symbolic aspect of redress.49 50 Examining Epstein’s approach from within his own premises, it seems reasonable to argue that a simple rule of SL will be easier and less costly to implement than a policy of sorting out competing claims to a given property. This seems especially apparent once a 113

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freedom from past injustices given number of years have passed, documents have been lost, original wrongdoers and victims have died, and so on. This is perhaps a good place to remind ourselves of one of Dickens’ most famous quotes from Bleak House: Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.51

One does not have to agree with Epstein to see the wisdom in Dickens’ famous observation. Furthermore, such an SL rule will have a lower percentage of mistakes associated with its application: all that it is required, after all, is a tally of the days that have passed since a current owner became the holder of this property.52 The results of this simple SL rule with regard to the deprivation of liberty, however, are less clear. According to Epstein, the simple SL rule, if applied on an aggregated scale, will create fewer forced transfers of property from current holders to other holders. Here Scanlon’s observation that “efficiency is only as important as the goal that is efficiently being promoted”53 comes to mind. Is the resumption of economic activity (presumably the goal to be promoted in an efficient manner according to Epstein), sufficiently important as to justify ignoring deprivations of liberty? What happens if the attempt to resume economic activity conflicts with other values and goals? Epstein assumes that the SL rule meets his “less liberty deprivation” criterion at the time it is applied (i.e., less forced transfers of property will follow). But even if we grant this assumption, this is 114

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forward-looking considerations a rather crude method of protecting the interests of descendants of deceased victims of past wrongs and of current owners. There will be cases, potentially a great many, in which the former (rightful?) owner will loss her or his property simply because they find themselves on the wrong “side” of Epstein’s rule of statutes of limitations. Is this a problem for Epstein? If the aggregated result is that such cases are less frequent following his simple SL rule method, the answer is no (but it will be a problem for those who take interests to property seriously, usually following historical entitlements. There is no need to adopt a strict Nozickian view of the importance of property rights to appreciate this point). This is because Epstein distinguishes between governmental interference in private property at the time of the application of the SL rule, on the one hand, and the creation of perverse incentives (to be discussed below), on the other hand. Epstein, to put it simply, prefers to minimize governmental intervention in any given point in time. However, it is possible (and empirically plausible) to offer a scenario that would be problematic for Epstein, given his premises. In this scenario, the aggregated result of his simple rule of SL would be efficient in reducing economic costs, but not liberty deprivations. For example, if the SL rule is set for five years from the moment at which any current owner gained possession of the property (regardless of the method of acquiring ownership), it would reduce the aggregated liberty of all original owners who lost their property over five years ago (via violations of their property rights), and it would obviously weaken their legal defense over property rights and encourage unlawful acquisition of any such property. On the other hand, this five-year SL rule would reduce costs associated with sorting out property claims. Note, that Epstein can reply that liberty deprivation is defined by his SL rule, and therefore a five-year SL rule, by definition, does not deprive liberty. This way of defining liberty is hyperlegalistic, and is open to the obvious critique that liberty (understood as lack of external constraints) surely has content not directly derived from the legal system. By contrast, an SL rule set at fifty years would increase the aggregated liberty of the original owners by strengthening protection on their property rights, but it would also increase costs associated with sorting out conflicting property claims. The point here is not about the specific timeframe or the specific consequences of it, rather it is that Epstein’s two rules of thumb (to reduce costs and to reduce deprivations of liberty) may support different rulings on claims advanced by descendants of deceased victims of past wrongs. 115

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freedom from past injustices Let us now examine Epstein’s third rule of thumb: reducing perverse incentives. Epstein aspires to minimize the creation of perverse incentives regarding future liberty deprivations and increased costs, especially in comparison with the liberty deprivations and costs that would result from alternative rectification rules. This forwardlooking rule of thumb proves to be the Achilles’ heel of Epstein’s approach. Any rule that provides an absolute advantage to the current owner may provide a perverse incentive insofar as it signals to other agents that, simply put, wrongdoing is a beneficial activity. This conclusion may provoke (or even encourage) further disturbances in rights and in ownership, in turn bringing about violations of liberty and huge costs in both preventing and punishing future wrongdoers. Uncertainty in holdings caused by insufficient protection of property rights is as damaging to market functionality (which is Epstein’s major concern) as overzealous protection of ancient property claims. To Epstein’s credit, he identifies this potential critique and provides two responses. First, he emphasizes the prevention of current and future violations of rights, including property rights, immediately as they occur.54 Second, he indicates that no rule that attempts to solve such past violations will be able to avoid costs in either personal liberty or financial terms. The question becomes which system will incur fewer costs, as no system will be cost-free.55 Epstein can certainly argue that the deontological insistence on strict protection of the right to private property – if applied to a large number of people lacking certainty regarding the validity of any claim to a given property (following past wrongdoing) – may create more mistakes in allocating property rights to individuals than his simple “statutes of limitations” rule, and will certainly be more expensive. Fine, but the problem lies elsewhere. Epstein’s simple rule of statutes of limitations, in and of itself, does not answer the core question of which system will actually reduce the costs of future cases – not just financial costs, but those pertaining to liberty as well. It seems that there is a connection between, on the one hand, ending conflicts over property among various parties today and, on the other hand, provoking (or even encouraging) future disturbances in the chain of legitimate holdings. Even Epstein’s strongest argument– that his “simple SL rule” system is easy to implement – may not stand up to his own test if it produces excessive future cases of such disturbances. Note, also, that such future disturbances can move in different 116

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forward-looking considerations directions regarding costs and liberty deprivations, respectively. For example, given an SL of five years, the stealing of property may increase, yet the aggregated cost will be rather small given that many relatively short-term cases will not be addressed in the courts. There is no reason, logical or otherwise, to think that consequences of the simple SL rule (costs and liberty deprivation) will move in tandem. Perhaps a better way to think about Epstein’s approach, even according to his own criteria, is to regard it as a conjecture that ought to be refuted or supported (or perhaps refined) rather than as a demonstrably preferable system. To summarize the discussion of Epstein’s efficiency-related proposal, we can observe three main points. First, considerations of efficiency are important, regardless of the critiques raised against Epstein’s approach. This may sound trivial, but enabling (or resuming) economic activities by quickly deciding on ownership is obviously an important point, and should not be seen simply as an excuse for keeping property in the hands of the descendants, or beneficiaries, of the wrongdoers. An extended period of indeterminacy regarding legitimate ownership will harm society at large. That is fairly obvious, so the general point of Epstein analysis is, I think, well taken. No wonder that Nelson Mandela, as early as 1991, three years before the Apartheid regime collapsed, felt the need to anticipate (and prevent) potential economic anxieties regarding the future economic policies of the African National Congress, and therefore assured an audience of investors in Pittsburgh, that: the private sector must and will play the central and decisive rule in the struggle to achieve many of (the transformation) objectives . . . let me assure you that the ANC is not an enemy of private enterprise . . . we are aware that the investor will not invest unless he or she is assured of the security of their investment . . . The rates of economic growth we seek cannot be achieved without important inflows of foreign capital. We are determined to create the necessary climate which the foreign investor will find attractive (my italics).56

Second, having given efficiency arguments their due place, we must note that considerations of efficiency do not amount to trump arguments. Efficiency considerations are fundamentally aggregative and sit uncomfortably with the strict individualistic concerns of past violations of rights, including property rights, introduced in Chapter 1, and especially the principle of separateness between persons. These potential tensions between considerations of efficiency and considerations of the individual interest to property, via compensation 117

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freedom from past injustices or restitution, are especially relevant following our examination of Epstein’s idea of the simple SL rule. Epstein’s rule, in many cases, will amount to reduced protection of the claim to ownership, especially those of the descendants of deceased victims of past wrongs, in favor of the resumption of economic activity. This is an inadequate normative solution to such a complex scenario such as redress following past wrongs. Epstein’s approach, and the emphasis on efficiency as a whole, seems especially out of context when considering past wrongs of the magnitude examined in this book. At most, such efficiencyrelated suggestions should be enacted only after examining the more fundamental rights of both the descendants of deceased victims of past wrongs and the non-wrongdoers that may be burdened with the costs of material redress. Now, to anticipate (and to concede to) an objection, some may argue that granting efficiency considerations a secondary position may bring about, in cases in which there is large-scale uncertainly in property rights, a reduction in economic activity that will bring about harmful consequences for the society at large, descendants of the victims of past wrongs included. The reason is that such a reduced level of economic activity will bring about a situation in which the “pool” of resources from which such descendants will receive resources will be smaller. In such extreme cases, efficiency considerations should probably be given a higher “position” in deliberations concerning intergenerational redress. Note, however, that such a scenario is not a principled consideration, rather it limits the application or execution of more fundamental considerations following pragmatic constraints. Lastly, it may be, and this is a crucial point, that our examination of the case for intergenerational redress will conclude that no such redress is justified, and efficiency theorists will probably be pleased with the result. But the argumentation leading to such a conclusion, following the considerations of Chapters 2–4, differs greatly from efficiency considerations. The argument developed here focuses on the strength, or lack thereof, of the descendants of deceased victims of past wrongs claims to material redress, and the interests of the non-wrongdoing members of certain states today to not bear the burden of redress. These arguments have little to do with efficiencystyle claims. Furthermore, if we conclude, following the considerations of Chapters 2–4, that redressing past wrongs is not justified, this conclusion applies to the subject matter of corrective justice, not 118

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forward-looking considerations distributive justice. Descendants of deceased victims of past wrongs may still be entitled to the distributive mechanisms of the welfare state (according to the preferred theory of redistribution adopted by the reader). However, this is not so in the efficiency approach, which aims to encompass, in the case of past wrongs and material redress, both corrective and distributive justice: in Epstein’s version, once the SL rule points to the rightful owner of property X, this is the end of the matter, especially given the general characteristics of the “efficiency” approach, such as mistrust of the government, strong protection of property rights (which is somewhat ironic here!), and laissez faire approach to markets.57 This concludes our examination of the efficiency approach, and forward-looking considerations as a whole. I move forward to the next section of this chapter: a justified case of redress following past wrongs. As we shall see, this case does not follow any forwardlooking consideration.

5.B The Remaining Case for Redressing Past Wrongs: the Maria Altmann Case as Paradigmatic While this book argues against intergenerational redress, in some cases there is justification for such a policy. In this section, I would like to point to the conditions that will give rise to a justified redress claim. This will help to clarify that this book does not present an allencompassing objection to intergenerational redress, certainly not a dogmatic objection, but aims to clarify the conditions under which such redress is justified. Pointing to such conditions, and describing at least one real-life example, is therefore an important part of the structure of this book. An ideal type, in the Weberian sense,58 of a justified intergenerational redress claim will be a case in which a descendant/relative of a victim of a past wrong brings forward a claim to X; this person is not vulnerable to the non-identity problem; the information regarding the wrong is clear; the asset requested is well identified; no changes to the asset or changes in circumstances have eroded the claimant’s request; and the new owner cannot persuasively demonstrate a case for legitimate ownership. These are relatively strict conditions, but an actual case study, which is, however, not so exceptional as to be unique, can demonstrate that such conditions are not impossible to meet. This is the situation in the Maria Altmann art restitution and bank account case. 119

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freedom from past injustices Note, that by choosing a case of an individual (to be detailed below), we demonstrate one of the arguments of this work, that claims for intergenerational redress are better analyzed via the conditions and considerations examined throughout this work, and therefore a “collective” example is inadequate, as it is less plausible that all the members of a given collective, however it is defined, will meet such conditions. The Altmann case famously involved stolen Gustav Klimt paintings and Swiss bank accounts, both seized during the Nazi era. It ended with the restitution of five paintings to Maria Altmann (1916– 2011), the niece of the original owners, Ferdinand Bloch-Bauer and his wife Adele Bloch-Bauer, and the restitution of the presumed contents of the accounts in the Swiss bank. The case involved courts both in Austria and the United States, issues of international law, and retroactive legal questions.59 Our interest here, however, is not the technical legal details, but the central facts of the case as follows. Maria Altmann was born Maria Victoria Bloch, in Vienna. Her uncle, Ferdinand Bloch-Bauer and her aunt, Adele Bloch-Bauer, were wealthy Jewish patrons of the arts, and Adele served as the model for some of Klimt’s best-known paintings, including two of those eventually recovered by her niece. Adele died in 1925, but before her death she requested that the paintings should eventually be given to the Austrian art gallery. Ferdinand, following the Anschluss, fled to Switzerland and the paintings, along with other valuable art works, were confiscated by the Nazis. A parallel issue was that Ferdinand attempted to create a trust with a Swiss bank in order to protect a sugar company he partly owned (as the Nazi regime was about to confiscate the company). The Swiss bank accepted the suggested mutual trust, but moved ownership of the company to the Nazis almost immediately, adding, in an internal memorandum, that the bank had: “important interests in Germany, and should avoid friction and unpleasantness whenever possible.”60 Ferdinand died in Switzerland in 1945. In his will, he explicitly bequeathed all his belongings to his niece Maria Altmann. Given the way Austria had treated him, there is no wonder that he did not follow Adele’s request.61 It is also doubtful that Adele would have kept her wish, were she to have seen how the Austrians treated her husband and the Jewish community. Furthermore, the directors of the Viennese art gallery were aware of the shaky ownership status of the paintings, but kept this information to themselves.62 Attempts to recover the paintings immediately after the war were 120

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forward-looking considerations not successful. However, in 1998, an Austrian researcher questioned the Austrian ownership of the paintings. Following the discovery of the facts above, Maria Altmann began years of fruitless negotiations and efforts to litigate in the Austrian court system. Eventually, a 2004 ruling in her favor by the United States Supreme Court opened the door to an Austrian arbitration process. The arbitration panel of three Austrian judges in turn ruled, in 2006, that the art must be returned to Altmann and other family heirs. After the paintings were returned, they were sold to private collectors, although some of them were presented in public venues, such as the Neue Galerie in New York and, for a while, at the Los Angeles County Museum of Art. Through an additional law suit against the Swiss bank, Altmann was able to receive some of the misappropriated funds as well, while the court decision contained a reproach of the behavior of said Swiss bank. As one commentator on the case wrote, in a somewhat dry tone: “one final thought may be in order. Reading of the uncontested and probably uncontestable behavior of the unnamed Swiss bank in the facts of this case, one can only say that it appears to have been blatantly illegal and utterly reprehensible at the time.”63 Maria Altmann died on February 7, 2011, shortly before her 95th birthday, having won both legal and moral battles. What shall we make of this case, and how do the arguments of this book, now well developed, apply to the details of this case? Let us carefully examine the details of the case in comparison with the variables that were examined in previous chapters, one by one. First, Maria was born in 1916, before the wrong (the theft of the family’s property in the greater context of the Nazi Holocaust) took place, and therefore the non-identity problem does not apply. Note that while Maria Altmann is a victim herself of the Nazi era, the subject matter here is her entitlement to the property left to her by her uncle (against the claims of the Austrian art gallery), not the separate subject matter of reparations for wrongs done to her.64 Second, the supersession thesis, presented in Chapter 1, does not apply. A brief review will show why. To summarize quickly the supersession thesis (and see Chapter 1 for a more detailed discussion): the supersession thesis follows Locke’s famous proviso that claims to ownership on property are limited following the needs of non-owners. If appropriation or ownership adversely influences the situation of non-owners, there is a justification for limiting ownership. This Lockean argument is relevant to intergenerational redress in the following way: suppose 121

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freedom from past injustices that at time T1, A steals property from B. No compensation is paid, and A holds said property. At the time of the wrong, the Lockean proviso does not apply, as the original ownership did not adversely influence the situation of non-owners. The theft, while obviously illegitimate, from the narrow perspective of the Lockean proviso, does not violate the Lockean proviso as the movement of the property to A does not change the status of the ownership on this property as ownership which does not adversely influence non-owners C, D, and E. However, after T1, changes occurred which made this type of property scarce (most likely), in a way that continued ownership by any one person would violate the Lockean proviso. Therefore, returning ownership solely to the victim (B) at point T2 (post the relevant change) is unjustified, as at that point the property constitutes an absolutely required good for non-owners C, D, and E, and even the wrongdoer A and her or his descendants. The importance of the supersession thesis, therefore, is its ability to explain how property or a good acquired in illegitimate fashion at time T1 may become legitimately owned, at least partially at time T2. The supersession thesis, however, is irrelevant to the Altmann case. The supersession thesis can be applicable only to certain kinds of goods to which the internal logic of the thesis is suitable. For example, land or drinkable water. Limited access to such goods might indeed adversely affect non-owners, and therefore will violate the Lockean proviso, and therefore the restitution of these goods to the victim and/ or his or her descendants will be limited. However, in the Altmann case, the nature of the goods is different: pictures and a bank account. Neither are necessary for the well-being of the current unlawful owners or other individuals, and therefore the supersession thesis does not apply. The kinds of goods involved in the Altmann case are foreign to the internal logic of the supersession thesis. Therefore, the Swiss bank and the Austrian art gallery cannot claim that, due to shifting circumstances between 1938 and 2006, keeping the ownership in the hands of the bank and the gallery is justified. Third, there is precise documented information about the original ownership, the wrong, the relation of the claimant to the original owner, and the location of the goods at the time of the claim. The wish of Ferdinand to pass the pictures to Maria Altmann in his will is clear, and the request of Adele pales when compared with the formal will of Ferdinand, especially given the nauseating way the paintings were confiscated by the Nazis. Fourth, no changes were made to the goods in a way that would 122

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forward-looking considerations justify the erosion of the past ownership of the goods and legitimate a new claim to ownership. Such erosion is usually the result of, for example, land that was barren at the time of the wrong being transformed into an agricultural land or the addition of a house, etc. In such cases, an argument can be made that the new owner has invested labor, time, and energy in the property, and that this creates a new and legitimate claim by the (original) wrongdoer or her or his descendants to the originally stolen property. However, no such changes were made to the pictures, and the “erosion” claim is therefore irrelevant to the Altmann case. Fifth, there is a clear addressee for the restitution claim:65 the Swiss bank and the Austrian art gallery. This is, therefore, a classic case of restitution, not of setback compensation. The two institutions were not requested to compensate Maria Altmann for her sufferings, or those of her uncle and aunt, but to return property to which they had no justified claim. The measure is their unjust enrichment, not the damage done to Altmann. We do not, therefore, have to examine the difficult issue of “who should compensate” and the double decoupling problem, which was examined in Chapter 3. We may also comment that, in the case of the Swiss bank, it may be the case that a new wrong was committed. If the Swiss bank knew about the existence of the account, yet kept it hidden while knowledge of its legitimate owner was available to the bank, this is no longer (only) unjust enrichment, but closer to simple thievery. Indeed, many such cases were documented and Swiss banks were forced to settle and to return the estimated value of such dormant accounts to their rightful owners in the late 1990s and early 2000s.66 Lastly, if there is an argument that should be seriously considered as a justification for leaving the pictures where they resided prior to the restitution, that is, at the Austrian art gallery, it is that the pictures were publicly displayed there. After the restitution, the pictures were presented at the Los Angeles County Museum of Art for a short period, following which they were sold to private investors and art collectors. One of the pictures is on public display in New York, at the Neue Galerie. Others, however, are held by private art collectors (at least at the point in time in which this chapter is written, in 2011). Now, it seems rather obvious that the public display of such works of art is of value to the public. However, this value should be evaluated vis-à-vis the rights to private property of Maria Altmann. In order to violate her property rights, a strong argument must be suggested. The interest of the public to see those pictures in real life (rather than 123

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freedom from past injustices copies or via Internet websites) is certainly not such an argument. Governments, to state the obvious, do not usually confiscate art works from private collectors in order to make them available to the public. Furthermore, considering the circumstances of the event, it is disingenuous to argue that the interest of the public should be served via the continued holding of the pictures by an Austrian museum that received them following the treatment of Jews by Nazi Germany. To summarize, the Maria Altmann case is a clear example in which restitution is justified. This, and similar cases (such as the Swiss banks case mentioned above), demonstrate that the arguments presented in previous chapters are not anti-intergenerational redress; rather, they provide specifications of when such cases may be justified. Naturally, not all cases are clear-cut, falling either within the contours of a justified restitution case or outside of it, and a careful consideration of circumstances and the details of cases will be required. However, the Altmann case does suggest that the conditions indicated in the various deliberations of this book are neither dogmatic nor too strict, and that such cases may be found.

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Conclusion

The plurality of arguments against redressing historical injustices; how states are born: a comment on memory; the right to a clean slate.

The Plurality of Arguments against Redressing Historical Injustices In thinking through the results of my argument as a whole, it may be fruitful to recall Isaiah Berlin’s famous short essay, which contrasted the hedgehog to the fox: the fox knows many things, but the hedgehog knows one big thing.1 Thinking about the various arguments that were raised against the idea of intergenerational redress in this book, it seems that the objections resemble the fox’s knowledge. There is no one grand idea that serves as a trump argument against intergenerational redress. Rather, there are various considerations and arguments, employed in various different contexts, which counter a variety of very different attempts to justify intergenerational redress. Claims for restitution, for example, in order to be justified require considerations of the reliability of information regarding property claims; whether property rights are stable or sensitive to the passage of time; the identity connecting original wrongdoers and victims to the current beneficiaries of the wrongdoers and the descendants of the victims; whether the property is subject to the supersession thesis; whether this is a communal claim to redress; the similarity or dissimilarity of the current community and the victims’ community at the time of the wrong (as discussed in Chapter 2), and various other arguments. One important implication of this study, well served by this kind of a critical approach, is that the rejection of claims for intergenerational redress should be patiently developed through a variety of arguments, rather than by advancing one impressive, triumphant 125

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freedom from past injustices argument. As such, each different obstacle to redress represents a distinct, important interest (e.g., the interests of non-wrongdoers today not to be lumped together with dead wrongdoers). This presents an important challenge for those considering claims for redress, as this “methodology” implies that such claims must pass a long list of objections in order to be successful. One central objection is avoiding burdening non-wrongdoers with the cost of redressing a wrong they did not commit. This list of objections is long enough to make a persuasive intergenerational redress claim unlikely. In a way, this “fox” structure of argumentation follows from the “negative” or “critical” nature of the book, as well as the somewhat eclectic fashion in which claims for intergenerational redress are presented by different scholars. This “fox” (rather than “hedgehog”) structure of the critique of claims for intergenerational redress has several interesting implications. One obvious consequence is that the argumentation of this book applies beyond just one subfield of political theory. For example, in discussing the restitution claim of the Maria Altmann case in Chapter 5, the discussion included questions of property rights (who has the strongest claim to this property, Maria Altmann or the Austrian gallery?); unjust enrichment (as discussed in Chapter 1, was the gallery unjust enriched?); the irrelevance of the non-identity problem (Chapter 2, as Maria Altmann was born before the wrong); and several other subfields. Some scholars (especially of the legal profession) might object that this treatment of a case runs the risk of eclecticism. The advantage of this approach, however, is that a fuller picture of the ways to evaluate claims for intergenerational redress is created. The subject matter – the wish to create a fuller picture of the controversy surrounding intergenerational claims for redress – causes, and in a way, leads to this structure. What is lost in super-specification within each such field is arguably gained by the unified treatment of the subject matter of intergenerational redress. Thus, while the risk of eclecticism is significant, it is worth running nevertheless. An additional benefit of the “fox” structure is its use in conveying the numerous hurdles that a successful redress claim would have to pass in order to be successful. For example, an intergenerational “setback compensation claim” (see Chapter 3) will have to successfully answer diverse objections, from the double decoupling problem (that the payers are not wrongdoers and that the claimants are not the victims), information-related problems, the questionable stabil126

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conclusion ity of property rights, the supersession thesis, and several others. The obvious conclusion is that a significant majority of claims for intergenerational redress will fail, as very few can meet all these hurdles. This insight would not have been possible if only one subfield of political theory (let us say, property rights or the nonidentity problem) was considered. This insight is, however, a natural outcome of the “fox” structure. A connected advantage of the “fox” structure is that a wide variety of pro-redress arguments, rather than only one line of argumentation, had to be considered. So, even if a reader disagrees with the general thesis of this book, she or he may still find value in the specific points raised within the wide spectrum of arguments discussed. Additionally, this approach does not commit itself to one methodology or set of assumptions, rather it can be compatible with different approaches in political theory. There is no obvious political category that includes arguments as diverse as groups’ cultures changing over time (as was argued in the context of the non-identity problem in Chapter 2); that forward-looking considerations for redress create a counterproductive structure of incentives (Chapter 5); or the supersession thesis (Chapter 1). The result is that (hopefully) scholars of different schools and with different interests within political theory will view the objections to intergenerational redress as noteworthy, even if they support one set of pro-redress arguments. Their view may already entail a rejection of several arguments I have examined here, but they (hopefully) will be able to profit from considering the objections offered to their preferred set of views. Lastly, while the “fox” methodology indeed crosses several theoretical schools, it is not “free floating.” The various attempts to justify intergenerational redress lead, indeed, to diverse critiques. However, several fundamental considerations were introduced in Chapter 1, which, at least at the level of my intentions, sufficiently connect all the myriad considerations and deliberations of this book. The most important of these points has been the Rawlsian principle of the separateness between persons. It is a fundamental point of this book that lumping together wrongdoers and non-wrongdoers is to be rejected (this also answers the very different question regarding the motivation for writing this book in the first place, see “The Right to a Clean Slate” section of this conclusion below). Many disparate aspects of the argumentation that followed in later chapters are a natural continuation of the “separateness between persons” principle. For example, the skeptical starting point to our discussion of 127

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freedom from past injustices collective-based approaches to redress in Chapter 4 – that the mere assumption of the existence of “collectivity” ignores the plurality of ethnicities, values, religious beliefs, and world views held by the members of large countries – is simply a further application of Rawls’ separateness principle.2 My point is that the diversity of objections to intergenerational redress treated in this work share a common conviction and core reasoning. That is, there is a bit of a hedgehog hiding behind the fox.

How States are Born: A Comment on Memory Having commented on the method, a second comment, on the beginning of states, as an additional concluding reflection, is appropriate. This section has two aims: to offer a brief view of what some theorists have argued with regard to historical memory; and to raise a skeptical note regarding the structure of the idea of reparations for past wrongs. Almost all countries have a violent past, either in the process of establishment (quite often), or in some other occasion. How states should relate to, or understand, their past is not a trivial issue. One famous approach to this issue is that of Renan, who argued that: Forgetting, I would even go so far as to say historical error, is a crucial factor in the creation of a nation, which is why progress in historical studies often constitutes a danger to a nationality. Indeed, historical enquiry brings to light deeds of violence which took place at the origin of all political formations, even of those whose consequences have been altogether beneficial. Unity is always created through brutality.3

While Renan merely argued for forgetting the past, Hume went as far as to suggest that the past is, frankly, not that important. Following his “principle of the moment,” he was less interested in the way states were established than in how they presently function and treat their citizens. While Hume proposed his “principle of the moment” as a part of his critique of the social contract tradition, the principle’s general approach – what is done today is more important than past events – is certainly thought-provoking (perhaps even “applicable”) in the context of our subject matter.4 A completely different approach to the past was offered by Plato and Rousseau, who both wanted to glorify the past and use it as a source of inspiration.5 These authors represent a tradition of history as what may be called a role model. In this tradition, Burke famously 128

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conclusion wrote that “to make us love our country, our country ought to be lovely.”6 This statement can be interpreted in two distinct ways: either as a severe moral critique of one’s country (as in, if the country does not follow a just path its citizens will stop loving it); or, more nefariously, as a hint that the country, via education, public holidays, etc., should present itself in such a way as to encourage the “correct” devotion from its citizens. Burke probably was inclined toward the latter reading.7 The common idea shared by these various approaches is that the past may be a source of inspiration and admiration or, if it is troubling (and the author is more concerned with historical truths), that it should be forgotten. The idea that the past is both bad (or worse) and that it needs to be rectified is something of a novelty.8 A recent article, usefully examining many more such theorists arguing for forgetting the past, questions what the authors name “the memory assumption,” that is, that the past must be dealt with.9 Indeed, there is something interesting about the historical development displayed here: from the insistence, shared by many political theorists, that the past must be a source of inspiration, loyalty, and strength (Plato, Rousseau), to a more careful attempt to forget the past (Renan), and, finally, to the current fashionable turn emphasizing the need to note and rectify past wrongs. Obviously this new turn to regard the past as entailing negative events and demanding rectification has its merits: the past is full of injustices which require the rejection of blind admiration of past leaders or past practices. Such a blind admiration for past leaders and customs in order to create a loyal citizenry surely contradicts the individualistic premises of this book. Any individual’s thinking about the past, in other words, should not be subject to governmental limitations, this much is obvious and presumably undisputed.10 The widespread tendency of various political theorists, from various historical periods and geographical locations, to either emphasize the beauty of one’s country’s past or to suggest forgetting the past of one’s country, demonstrates that the past is a source of serious concern in political theory. This is, in part, due to the widespread implicit suspicion that the past is problematic, that is, it contains injustices for many different nations and countries. We can assume that this is why such a variety of writers dedicated such close attention to the topic. What is relevant to this study is not the Rousseau-style wish to portray a glorious past in order to create loyalty to the nation, which would contradict the individualistic 129

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freedom from past injustices premises of this book. Neither should this consideration lead to some repulsive command issued by a central government to manufacture false history books. Rather, the relevant conclusion is that past wrongs are widespread. If past wrongs are widespread among countries, we should expect to see a widespread interest in any and all of these past wrongs. This, however, is not the case. The literature on past wrongs grants more attention to certain case studies than to others. This is true across geographical locations, and with regard to the temporal baseline chosen. Often, there is an unexplained baseline of time from which wrongs are considered, and from which rectification claims should presumably follow; the identity of the individuals or group to which redress is owed is often determined according to this insufficiently explained temporal baseline. For example, if we accept 1911 as a baseline of legitimate ownership (I write this chapter in 2011, and one hundred years is as a good of a choice as any other), all wrongs preceding this date are effectively neglected, and the owners in 1911 are legitimate owners – regardless of the way in which they obtained their property. Therefore, if a past wrong was done to the owners of 1911 at any subsequent point, they are eligible for material redress which the descendants of the wrongdoers, according to some, are required to pay. But the owners in 1910, from which the 1911 owners stole this property, are not eligible for redress. This is a strange, arbitrary way to establish the identity of victims and wrongdoers from all possible past wrongs, even among wrongs upon which we have adequate historical information.11 Such assumptions regarding a temporal baseline, the wrongdoers, and the victims requires some justification (even before we start our examination of what to do about such past wrongs today). Such “temporal” assumptions should not be accepted without a critical examination, and it seems that two points should be made here. First, demonstrating a compelling analytical argument regarding which past wrongs deserve attention across temporal and geographical possibilities is exceedingly difficult.12 As such decisions (the temporal baseline, geographical location, etc.) determine the identity of wrongdoers and victims, and, in the present, the payers and claimants, they are crucial and need to be justified. Second, the fact that past wrongs are widespread obviously does not justify such past wrongs. Nor does it mean that rectification is not required. It does mean that the choice to focus on some case studies rather than others 130

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conclusion requires an explanation which cannot be arbitrary, both with regard to the geographical choice and the temporal cut-off point. It also means that special critical attention should be directed toward such decisions, as in some cases the reason for focusing on one given case and one given temporal point (and, therefore, those who will bear the cost of rectification) stems from some contemporary problem, rather than the past wrong itself. If the reason for choosing a particular case, temporal cut-off point, or the identity of the would-be recipients of rectification is indeed contemporary (and, indeed, rectification is often used as a solution to current problems), the rationale will resemble forward-looking justifications for redress. In such a scenario, the objections raised in Chapter 5 against forward-looking approaches to redress – counterproductive incentives, the relations between corrective and distributive justice, and so on – should be considered. As a reminder, the conclusion of Chapter 5 was that in most cases, forward-looking justifications for intergenerational redress cannot justify redress. To summarize this point, greater critical attention should be directed toward the choice of which past wrongs, geographical locations, and historical cut-off points occupy our attention than has typically been offered.

The Right to a Clean Slate One of the core assumptions of this book is that persons are separate from each other. Following this, any view which lumped together wrongdoers with non-wrongdoers was rejected, both at the level of punishment and, aside from very few exceptions, at the level of material rectification as well. In these concluding remarks, it is important to ask: if intergenerational redress cannot be justified in almost all cases, what does follow for individuals born after a wrong has ended and the wrongdoers and victims have all passed away? In other words, what is “the right to a clean slate”? In the relevant literature, a clean slate is usually explained in two different ways: first, as a type of “mercy,” eloquently explained in the following: “to generalize, one man shows mercy to another when he waives his right over that person and thus releases him from his obligation, cancels the debt.”13 A clean slate in this sense, therefore, is an issue of private law, and is relevant primarily between a plaintiff and a defendant. This approach focuses on material aspects: the defendant owes something to the plaintiff; the plaintiff waives her or his 131

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freedom from past injustices right to this thing for some reason; and the material slate is therefore clean between these two individuals. An alternative approach to “the right to a clean slate” focusing on feelings rather than property, is that of forgiveness. A recent author described this approach as one in which: “the forgiver does not change her belief in the culpable wrongdoing, but overcomes hostile feelings in the sense that she ceases to feel towards the wrongdoer as she would have if she allowed the offence to count in her feelings towards the wrongdoer as a person.”14 In this case, the forgiver does not change her judgment toward the wrongdoing, but for some reason overcomes her hostile feelings toward the wrongdoer (and so creates a distinction between the act of wrongdoing and the wrongdoer), and ceases to feel what she would ordinarily have felt toward the wrongdoer – probably anger, resentment, etc. Following such a choice, the slate is cleaned between the forgiver and the wrongdoer, at least at the emotional level for the forgiver (though not necessarily for the wrongdoer). Unlike “mercy,” however, forgiveness is limited to the domain of feelings. It may be that the forgiver indeed overcame her hostile feelings, but a court may still enact a punishment on the wrongdoer. We may ask why someone would choose the path of “mercy,” “forgiveness,” or both of these options. For both “mercy” and “forgiveness,” a variety of reasons are offered as possible explanations for this “cleaning the slate” option: repentance by the wrongdoer; atonement; the payment of reparations (in the forgiveness case); generosity; and the wish of the forgiver to distance him- or herself from anger, resentment, and victimhood – all are possible reasons to choose either path and for wiping the slate clean.15 With both mercy and forgiveness, it seems that regardless of our view of the justifiability of either, there is at least a degree of good will on the part of the forgiving or merciful person. Certainly, it is not something that is owed to the wrongdoer or the defendant: one can hope to be given such a clean slate, but certainly cannot demand it. Thus, by briefly examining both “mercy” and “forgiveness,” and the path they suggest toward a clean slate, it is obvious that they are not relevant to our subject matter. Our subject matter begins with the separateness between persons and the double decoupling problem. Because the wrongdoers and the original victims have died, wherever our deliberations lead, they will never become deliberations between wrongdoers and victims. Therefore, the entire discussion regarding 132

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conclusion mercy and forgiveness is irrelevant – where there are no wrongdoers, there is no forgiveness and mercy. We need a different path to follow if we are to understand the “right to a clean slate.” A right to a clean slate means, in our context, that individuals born after a wrong has ended and both the wrongdoers and victims have died, should neither be required to bear the material cost of rectifying this wrong (excluding special scenarios of restitution, as examined in Chapter 3), nor identified in any other way with dead wrongdoers. Furthermore, this clean slate should include negative reactive feelings that may be directed toward such non-wrongdoers. Such negative reactive feelings are usually directed toward individuals perceived to have communal ties to the wrongdoers or, in some cases, to wrongdoers’ descendants. Such associations of feelings, especially, but not only, if formalized legally or socially, clearly violate the “separateness between persons” condition and logic, and might encourage an unjustified stigma directed toward descendants or members of a given community. The right to a clean slate is not an idea regarding the entitlements of individuals born after a wrong has ended, nor does it correspond to any specific distributive justice scheme. Rather, it is simply the logical continuation of the critical aspects of this book. If there is no plausible justification for intergenerational claims for redress, no way to successfully meet the various objections raised in previous chapters, what is left is the right of individuals born after a wrong has ended to this clean slate. Several comments are required here. The right to a clean slate, formally articulated following Hohfeld’s terminology, is identical to privileges (or liberties) in the Hohfeldian classification. Privileges or liberties, in Hohfeld’s terminology, mean: “A has a privilege (liberty) to φ if and only if A has no duty not to φ.”16 For our subject matter, individuals born after a wrong has ended have no duty not do whatever φ is to them: to put it simply, they are at liberty to continue their life undisturbed by claims for material redress that may be directed against them by other persons or institutions. This conclusion is the rule and, aside from some exceptions such as restitution cases (see Chapter 5), it applies widely. To this formal conclusion we may add another comment, the equivalent of an obiter dictum in legal discourse, which is nonetheless relevant. While the “liberty” or “privilege” “incident,” in Hohfeld’s classification, is formally sufficient in order to clarify the nature of 133

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freedom from past injustices the right to a clean slate, another “incident” from Hohfeld might be mentioned, especially as we are arguing against a large-scale fashionable trend. The incident is that of “immunities,” as follows: “B has an immunity if and only if A lacks the ability within a set of rules to alter B’s Hohfeldian incidents.”17 To put it simply, non-wrongdoers (born after a wrong has ended) have an immunity from the ability of other persons or institutions to alter the status of their rights based on an ended wrong committed by someone else. If we have already announced that non-wrongdoers have a privilege or a liberty in the context of intergenerational redress, why is there a need to additionally consider immunities? This is a formal way to express the idea that there are no duties of corrective justice between members of either of two communities: descendants of wrongdoers, the descendants of victims, or any individuals associated with either group. This is always the case, aside from the very limited duty of restitution as discussed above (and in an even more limited number of cases, “setback compensation,” as examined in Chapters 3 and 5). Given the number of scholars who argue for the ability of descendants of victims (or those related to them via a related community) to raise claims against descendants of wrongdoers, immunities should be emphasized to clarify that this is not the case. Some may argue that the arguments pursued throughout this volume become inadequate once we leave the strict discussion of material rectification and enter the domain of feelings and emotions. Emotions and feelings endure even as claims for property are eroded or become too remote to trace and restitute. This is obvious and I have no quarrel with this claim either from an empirical perspective (as a description of how people feel) or a prescriptive perspective: I do not see it as the role of a liberal polity to advance any agenda regarding feelings and emotions. I will, however, add two caveats: first, once we leave the sphere of emotions and feelings, and enter the material redress sphere, the considerations examined in the current volume regain relevance. Second, enacting reactive negative feelings toward descendants of wrongdoers is simply not the fair thing to do and would violate the “separateness between persons” condition. It is true that individuals do not have a right to be liked by other people, but we can be puzzled by individuals who express negative reactive feelings in such a manner nonetheless. Moving forward, the “right to a clean slate” obviously does not include the right to keep property to which one has no claim, such as goods gained through unjust enrichment. As discussed above, if 134

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conclusion a person born after a wrong has ended holds property as a result of the wrong, she or he may be under a duty of restitution. While this theoretical logic of restitution is valid, in most cases issues such as remoteness, difficulties in tracing property, information-related problems, and the instability of property rights will erode most restitution-style claims once a sufficient amount of time has passed. A similar conclusion was reached in collective-based cases in Chapter 4. As auxiliary considerations will probably make such claims moot after a certain period of time has passed, the right to a clean slate, while very different than the mere point of the erosion of restitution claims, has an identical practical result: that individuals born after a wrong has ended, and all the wrongdoers and victims have passed away, are free of any duty to offer material redress. Lastly, the right to a clean slate is compatible with various distributive justice theories. As a general rule, it keeps a strict separation between redressing past wrongs and distributive theories, with some minor exceptions. This point requires some brief explanatory comments. On a very basic level, and as explained in Chapter 1, issues of redress are created between a wrongdoer and a victim. Once the wrongdoer and the victim have died, these relations cease to exist. Thus, in cases of intergenerational redress, the relations between existing people can no longer be directed by the rules of corrective justice, but by whatever rules of distributive justice may hold in such cases. This is, so far, fairly non-controversial. There are, however, two major cases in which the relations between corrective and distributive justice may raise considerable difficulties in the context of intergenerational redress. This happens when duties of corrective justice adversely influence the situation of the worse-off party. In such cases, as discussed in Chapter 5, we offered two different approaches. First, in cases of intergenerational compensation, if the descendants of victims of past wrongs are entitled to compensation following harms that directly result from the past wrong (“setback” compensation, as discussed in Chapter 3), but all the original wrongdoers have died, the descendants of the deceased victims’ entitlement to compensation is sensitive to the egalitarian concerns regarding the consequences of such compensation. The reason is that in such a scenario there is a “decoupling” between wrongdoers and payers, already a major impediment to intergenerational redress, which is reinforced by the potential non-egalitarian consequences of compensation. In such cases, in which compensation 135

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freedom from past injustices adversely influences the situation of the worst-off, compensation is probably not justified.18 A second, and different, scenario is that of intergenerational restitution, that is, a case in which a person currently holds property to which she or he has no justified claim, and which was received via unjust enrichment (as explained in Chapter 3). Such cases, even if a restitution claim adversely influences the current owner’s economic situation, which is worse than that of the wouldbe recipient, are not sensitive to the non-egalitarian consequences of restitution. The reason is that while the consequence regarding equality remains (and is important), the decoupling problem does not exist. The current property owner was unjustly enriched, has no claim to this property, and the rightful owner has a clear claim to the property as the descendant of the deceased victim. In such a scenario, the property should be returned to the rightful owner. The situation of the person under a duty of restitution may indeed be negatively influenced, and if we assume that this person is indeed worse-off than the rightful owner, the restitution claim indeed entails non-egalitarian, yet justified, results. In such a case, however, the distinction between corrective justice and distributive justice is clear: the individual who restituted said property to the rightful owner may be assisted via the criteria of a given (re)distribution system, such as Rawls’ difference principle. The point here is that such egalitarian considerations should not eclipse the interests of the rightful owner. Aside from the “setback” compensation scenario which, in the rare cases it is justified, introduces considerations of distributive justice to those of corrective justice, these two spheres of consideration should be kept strictly separate. We were especially careful to limit forwardlooking reasons – such as economic efficiency, the improvement of relations between communities, and deterrence – from influencing considerations of corrective justice. Not only are some forwardlooking reasons counterproductive to the goal of corrective justice, but they might also adversely influence the rights of individuals to either a clean slate (deterrence) or restitution (economic efficiency). The main reason following which I tried to keep the considerations of corrective justice and the considerations of distributive justice separate follows the classic idea of Aristotle,19 namely that wrongdoing creates a special debt that the wrongdoers owe to the victims. This special debt is unique to the wrongdoers and the victims, and them only. Once this special debt owed by the wrongdoers to the victims is severed, as in historical wrongs where both have passed away, other persons are under no duty connected to this wrong. There may be 136

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conclusion some “remains” to this wrongdoing – for example, property that as a result of the wrong now lies with the beneficiaries of the wrongdoers, yet belongs to the descendants of the victims – and we have examined such cases in the deliberations of this book. But in most cases, people born after a wrong has ended have no relation to it and should not be obligated by this debt which the wrongdoers owed to the victims. Indeed, such individuals have a right to a clean slate.

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Notes

Epigraphs 1. Korematsu v. United States 323 U.S. 214, R. Jackson, J., dissenting. 2. D. Hume. A Treatise of Human Nature, eds D. Norton and M. Norton (Oxford University Press, [1739–40] 2009), Bk 3, Pt 2, section 3, p. 326. 3. T. Jefferson. Letter to Samuel Kercheval, June 12, 1816. Available at: http://teachingamericanhistory.org/library/index.asp?document=459. Acknowledgments 1. Lewis Carroll, Alice’s Adventures in Wonderland (Kindle Locations 884–886). Preface 1. E. Wiesel, “The Rebbe of Ger: A Tragedy in Hasidism,” lecture delivered at Boston University, November 1, 2010. Introduction 1. I shall use “past wrong” and “past injustice” interchangeably. 2. J. Rawls, A Theory of Justice (Harvard University Press, [1971] 1999 rev. edn), p. 25. 3. Wik Peoples v. Queensland (1996), HCA 40, asking whether existing leases extinguish native title. 4. Several different cases have examined the claims of Greek Cypriots (expelled in 1974) to land currently held by Turks, or in some cases uninvolved third parties: Demopoulos and others v. Turkey (ECHR 2010), and Apostolides v. Orams, ECJ (2009). Interestingly, the former decision gave preference to the current holders of this property, the latter, to the exiled Greek Cypriots. 5. There are several relevant American issues, including reparations for 138

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6.

7.

8.

9.

slavery, the various claims of indigenous groups, and reparations paid to Japanese-Americans mistreated during the Second World War. See B. Weiner, The Sins of the Parents (Temple University Press, 2005). E. Benvenisti et al. (eds), Israel and the Palestinian Refugees (Springer, 2007); I. Levin, Locked Doors: The Seizure of Jewish Property in Arab Countries (Praeger, 2001). Two very helpful sources are P. De Greiff (ed.), Reparations (Oxford University Press, 2006) and E. Barkan, The Guilt of Nations (Johns Hopkins University Press, 2000). Note that unlike most of the cases discussed in these two important sources, the interest of the current book lies with cases where the wrongdoers and victims have clearly passed away. In most cases all living individuals would have been born after a wrong has ended. There will be a few cases in which the cost will be imposed also on individuals who are non-wrongdoers who were alive during the wrong; this latter case is more complex, and see Chapter 4. Parts of this chapter have appeared in: N. Perez, “On Compensation and Return: Can the ‘Continuing Injustice Argument’ for Compensating for Historical Injustices Justify Compensating for Historical Injustices, or the Return of Property?,” Journal of Applied Philosophy, 28(2). May 2011, 151–168.

Chapter 1 1. Some definitions include a requirement that the wrong was committed by a collective agent. Since I am not sure what this adds I shall drop this requirement. See: Katrina M. Wyman, “Is There a Moral Justification for Redressing Historical Injustices?,” Vanderbilt Law Review, 61(1), 2008, 127–196, at 134. 2. The literature on statutes of limitations examines the issue of “accrual,” i.e., when the timer on the statute of limitation begins to tick. My interest in historical injustices starts from the time when all the wrongdoers and all the victims have died (therefore making the injustice “historical”). This starting point will have various implications for multiple discussions throughout this book. It may be argued, however, that in some cases even the death of all the relevant agents does not justify starting the clock on the statute of limitations of historical injustices (especially in cases in which there are legal impediments preventing redress to be enacted closer to the original wrong). See above in the text, and the discussion in Chapter 5. See also: S. M. Malveaux, “Statues of Limitations: A Policy Analysis in the Context of Reparations Litigations,” George Washington Law Review, 74(1), 2005, 68–122, at 86–92; Tyler T. Ochoa and Andrew J. Wistrich, 139

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3.

4.

5.

6.

“The Puzzling Purposes of Statutes of Limitations,” Pacific Law Journal, 28, 1997. 453–514, at 458. Robert Penn Warren, in a famous and powerful statement, argued that: “the whole notion of untangling the ‘debts’ of history smacks of fantasy. Would the descendants of an Athenian helot of the fifth century BC, assuming that such a relationship could be established, have a claim today on the Greek government? Would the descendant of a mill girl, in Lowell Massachusetts, who died of lint lungs in 1845, have a claim on Washington DC, in 1965?”: R. P. Warren, Who Speaks for the Negro (Random House, 1965), p. 434. Even a brief look at the literature on past wrongs will reveal that some cases receive extensive attention, while other cases receive much less, and that the severity of the original wrong does not correspond to the level of interest. This is probably due to intellectual fashions, accessibility of information, and prevailing contemporary political attitudes. “Harm” is often defined as “a wrongful set-back to interests,” and this is how I shall understand it here. See: J. Feinberg, The Moral Limits of the Criminal Law, Vol. 1: Harm to Others (Oxford University Press: 1984), p. 36. Two comments are required here: first, the formula mentioned above is a fairly general formulation which is sufficient for the needs of this book. In the literature on corrective justice, there are various opinions on the relations between corrective justice and distributive justice, especially regarding whether these are two independent schemes, or whether corrective justice is “parasitic” or “follows from” distributive justice. This disagreement will not concern us here. See: S. R. Perry, “On the Relationship Between Corrective and Distributive Justice,” in J. Horder (ed.), Oxford Essays in Jurisprudence, 4th Series, (Oxford University Press, 2000), pp, 237–263. Second, the focus of such a general formulation is the wrongdoer and the victim. This means that the most important variable here is the special debt the wrongdoer owes to the victim, and all that follows from this (duties, obligations etc.), not other considerations such as economic efficiency. This focus on the wrongdoer and the victim will be important for us during the various deliberations of this book, especially as in historical injustices cases the special debt that wrongdoers owe to victims is severed as both are no longer alive. I shall go back to issues of economic efficiency in Chapter 5. On the importance of the wrongdoer–victim perspective to corrective justice see: E. Weinrib, The Idea of Private Law (Harvard University Press, 1995), ch. 4; E. Weinrib, “Corrective Justice in a Nutshell,” University of Toronto Law Journal, 52, 2002, 349–356. The classic exposition of the idea of corrective justice (on which Weinrib relies) is, of course, Aristotle, The Nicomachean 140

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7.

8. 9.

10.

11.

12.

13.

Ethics, trans. D. P. Chase (Everyman Library, 1940), Bk 5, 1132b– 1133a. Such calculations (especially if the value of compounded interest is added), may give rise to imaginary sums. The value of such interest may also face a variety of different possible calculations. Some have therefore argued that if compensation is justified, the sums to be paid should follow a moral calculation (roughly the worth of healing a moral wound), rather than an economic calculation of the value of the wrong. I shall have a few things to say about this issue in Chapter 3. See: T. Cowen, “Discounting and Restitution,” Philosophy & Public Affairs, 26(2), 1997, 168–185. P. Cane, Atiyah’s Accidents, Compensation and the Law (Cambridge University Press, 2006), p. 35. A. Kull, “Rationalizing Restitution,” California Law Review, 83, 1995, 1191–1242, at 1196. See also the complex analysis by H. Dagan, The Law and Ethics of Restitution, (Cambridge University Press, 2004), chs 1 and 7. If “gave” was instead “sold,” we would have a much more complex scenario. But at this early stage in the book, let us assume that “A” did not pay for this watch. See: P. Birks, An Introduction to the Law of Restitution (Clarendon Press, 1985), chs 11 and 12; P. Birks, Unjust Enrichment, 2nd edn (Clarendon Press, 2005), ch. 9, for various scenarios. The literature on apologies is extensive, some examples include: R. Brooks (ed.), When Sorry Is Not Enough (New York University Press, 1999); M. Minnow, Between Vengeance and Forgiveness (Beacon Press, 1999). See also: J. Torpey, Making Whole What Has Been Smashed (Harvard University Press, 2006), especially pp. 70–72. An important philosophical analysis is A. Margalit, The Ethics of Memory (Harvard University Press, 2002), ch. 6. On memorials and monuments in this context, see: Elizabeth Strakosch, “The Political Complexities of ‘New Memorials’: Victims and Perpetrators Sharing Space in the Australian Capital,” a paper presented at “Berlin Roundtables,” Berlin (x-x), 21–26 October 2009. See also: James E. Young, The Texture of Memory: Holocaust Memorials and Meaning (Yale University Press, 1993). In some cases, the claim for redress is for a specific “thing” that does not have, according to the claimants, any comparable value. Examples include sacred land, a specific artifact, etc. Such cases introduce very complex scenarios, and in some cases are impossible to solve. A famous case of such a request is the United States v. Sioux Nation of Indians, 448 U.S. 371, in which the Sioux nation were granted compensation for land taken from them in late nineteenth century, but not the land itself (the Black Hills in South Dakota), the Sioux refused to 141

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14.

15.

16.

17. 18.

19.

20.

21. 22. 23. 24.

receive monetary compensation (to the present day, 2011), and insist upon receiving back the land itself. I shall have something to say about such cases in Chapter 2. R. Nozick, Anarchy State and Utopia (Basic Books, 1974), p. 57. There are other attempts at definitions, but Nozick’s is the most comprehensive. For a discussion, see: Cane, Atiyah’s Accidents, Compensation and the Law, ch. 17. See also: R. Teitel, Transitional Justice (Oxford University Press, 2000), ch. 4; however, note that Teitel’s important book examines transitional justice, while the current book examines historical injustices, and it is important to differentiate between these two subject matters. This definition is not perfect, of course, and several commentators have wondered about various aspects of it. The connection between this definition and Nozick’s theory of justice in acquisition and transfer in intergenerational cases especially attracts attention. See: L. Davis, “Comments on Nozick’s Entitlement Theory,” Journal of Philosophy, 73(21), 1976, 836–844 (on the non-identity problem, and see Chapter 2 below); R. E. Litan, “On Rectification in Nozick’s Minimal State,” Political Theory, 5(2), 1977, 233–246 (on why it is plausible to limit the rectification to one generation). It is true that some “non-material” means of redress also entail costs: building a memorial does cost money. But my aim is to examine much more radical cases that would entail much more substantial changes in property, such as ownership of large tracts of land or large-scale monetary redress. See the detailed examination in Chapters 3 and 4. J. Thompson, Taking Responsibility for the Past (Polity, 2002). See also: B. Weiner, The Sins of Parents (Temple University Press, 2005); D. Butt, Rectifying International Injustice (Oxford University Press, 2009), advocating intergenerational redress. My interest in this section is responsibility in the context of a liberal polity, I shall say nothing on problems of free will. On these topics, see: M. Matravers, Responsibility and Justice (Polity, 2007), ch. 2. Weiner, The Sins of Parents, is a notable example, see, for example, p. 125. See also: J. Thompson, Intergenerational Justice (Routledge, 2009), pp. 1–2. E. Burke, Reflections on the Revolution in France (Oxford Classics, 2009), p. 96. Bernard Williams, “Moral Responsibility and Political Freedom,” Cambridge Law Journal, 56 (1), 1997, 96–102, at 97. H. L. A. Hart, Punishment and Responsibility (Oxford University Press, 1968), ch. 2, especially pp. 49 and 52. To be understood, in this context, as lack of external constraints, see: Gerald Gaus, Political Concepts and Political Theories (Westview 142

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notes

25.

26.

27. 28.

Press, 2000), pp. 77–82; Isaiah Berlin, “Two Concepts of Liberty” (selection), in Ian Carter, Matthew H. Kramer, and Hillel Steiner (eds), Freedom: A Philosophical Anthology (Blackwell, 2007), pp. 39–58. Such as deterrence or when responsibility is ascribed by the surrounding society. The Hart–Williams understanding of responsibility was indeed criticized following such perspectives, see: R. A. Duff, “Who is Responsible, for What, to Whom”, Ohio State Journal of Criminal Law, 2, 2005, 441–461; R. A. Duff and A. Von Hirsch, “Responsibility, Retribution and the ‘Voluntary’: a Response to Williams,” Cambridge Law Review, 56, 1997, 103–113. A classic exposition of a wider view of responsibility is T. Honoré, Responsibility and Fault (Hart, 1999), pp. 32–39, 125–134. Such critiques and alternative suggestions have their own advantages, of course, but the advantage of the Williams– Hart suggestion is the connection between their view of responsibility and the value of freedom in a liberal polity, and this, or so I think, is a trump argument. Some scholars may argue that the view presented does not take into account the issue of moral luck. As Nagel, for example, has argued, we hold individuals to be blameworthy or praiseworthy for events on which they had very little, if any control as a day to day, banal practice for no good reason. If this is indeed the case, the approach expressed above makes no sense. Two answers are possible here: first, we do not need to argue a complete control by individual X on the entire set of conditions that bring about result Z. Some control is enough in order to make the approach illustrated above make sense. Second, a view of moral luck that would decrease the level of one’s control over the results of one’s actions radically will also diminish the responsibility, in our case, for the original wrong. In such a case, the subject matter of intergenerational redress will simply be another case of lack of responsibility for the original wrong and, in any case, will rule out the case for material intergenerational redress, at least following the justification of responsibility. See: T. Nagel, “Moral Luck,” in Mortal Questions (Cambridge University Press, 1979), pp. 24–39. For a specification of the “control” conditions that demonstrate that moral luck does not preclude notions of responsibility see: M. J. Zimmerman, “Luck and Moral Responsibility,” Ethics, 97(2), 1987, 374–386. As this book concerns itself with historical injustices, a “bad state of affairs” will be my focus here. The inaction, or omission, of A in this definition may in some cases (such as negligence) be included in this definition. However, as we shall see in Chapter 4, this may create great complications. As a definition has to be short, I relegate the omission part to this footnote, otherwise I would have to add too many qualifications. See Chapter 4 for a discussion of this point. 143

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freedom from past injustices 29. I shall use “cause” and “brought about” interchangeably. For the purpose of this definition, cases in which A caused a part of the bad result are included, and the connection between the action and the result should be clear and relatively immediate. 30. I follow here, to some extent, Feinberg’s definition. See J. Feinberg, “Collective Responsibility”, in Doing and Deserving (Princeton University Press,1970), pp. 222–251, at p. 222. 31. Note the meaning here: A did X voluntarily and the faulty X caused bad state of affairs B. 32. I shall avoid using the term responsibility in a strictly attributable fashion, such as in “we all agree that you are responsible for paying for this damage.” On this usage of responsibility, see: P. Cane, Responsibility in Law and Morality (Hart, 2002), pp, 53–63. 33. Rawls famously wrote that “utilitarianism does not take seriously the distinction between persons”: A Theory of Justice, p. 24. This critique of utilitarianism is as important vis-à-vis other aggregative approaches, and see in the text. 34. While this is NOT a book of Rawlsian scholarship, certainly not “what can we infer from Rawls’ writings on subject matter X” kind of book, Rawls did famously present a most powerful critique of aggregative theories (utilitarian, but his critique, as I hope to show, is as strong versus other, collectivist theories), and there is interest in demonstrating the Rawlsian connection of some aspects of this book. Rawls obviously allows or even demands some aggregative measures following the difference principle. My point is NOT that Rawls rejects aggregative policies, rather that punishing person X for what person B has done will not be allowed by Rawlsian principles, as it would violate Rawls’ first principle of justice (the principle of maximum compatible liberty). Furthermore, imposing costs on X for what person B had done has no relation to redistributive principles, and may violate them (including Rawls’ difference principle), if the fined/punished person is less well off than the would-be recipient. In intergenerational cases, both problems would be a concern. See Chapters 3, 4, and 5. On the principles of justice see Rawls, A Theory of Justice, pp, 52–55; J. Rawls, Political Liberalism (Columbia University Press, 1993), pp. 5–6. With regard to aggregation Rawls writes as follows: “One is not allowed to justify differences in income or in positions of authority and responsibility on the ground that the disadvantages of those in one position are outweighed by the greater advantages of those in another. Much less can infringements of liberty be counterbalanced in this way”: A Theory of Justice, p. 56 (my italics). See also Freeman’s specification of Rawlsian “core liberties,” which I think would indeed disallow such aggregation: S. Freeman, Rawls (Routledge, 2007), pp. 209–212. 144

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notes 35. Such aggregation will also be disallowed by Nozick’s libertarianism, see, Anarchy State and Utopia, pp. 32–33. 36. Note that I do not discuss the virtue of a “responsible person” (she always arrives on time to meetings, he always remembers to pick up his little brother from school). On this meaning of a responsible person, see R. Dworkin, Justice for Hedgehogs (Harvard University Press, 2010), pp. 102–103. 37. Two famous examples are: L. May, Sharing Responsibility (Chicago University Press, 1992); Peter A. French, Collective and Corporate Responsibility (Columbia University Press, 1984). For a critique of such attempts see: E. Wall, “The Problem of Group Agency,” Philosophical Forum, 31(2), Summer 2000, 187–197. 38. This point was convincingly argued in the following sources: T. M. Scanlon, What We Owe to Each Other (Harvard University Press, 1998), ch. 6; Arthur Ripstein, “Justice and Responsibility,” Canadian Journal of Law and Jurisprudence, 17, 2004, 361–376. 39. My translation, the italics and parenthetical comments are mine, N.P. 40. Additions (“Tusefta”), Damages (“Nezikin”), First Gate, (“Bava Kamma”), ch. 10, 6. 41. J. Locke, The Second Treatise of Civil Government, ch. 5, section 27, available online at http://www.constitution.org/jl/2ndtr05.txt. 42. A. J. Simmons, “Makers’ Rights,” The Journal of Ethics, 2(3), 1998, 197–218; A. J. Simmons, The Lockean Theory of Rights (Princeton University Press, 1992), ch. 5; J. Waldron. The Right to Private Property (Clarendon Press, 1988), ch. 6, especially starting p. 171. 43. As my interest here concerns historical wrongs and not a full essay on property rights, the following very brief comments will (hopefully) suffice: let us define property right, as the exclusive ability to hold, make use of, or alienate property. Property here should be understood as not only tangible things, such as land or a house, but also nontangible goods, such as money, and, in our context, the value of forced and unpaid labor, compensation for wrongs such as bodily harms, and so on. To examine two definitions of “property,” first, Waldron suggests: “the concept of property is the concept of a system of rules governing access to and control of material resources”: Waldron, The Right to Private Property, p. 31. Once “access to” is included in the definition of property, it is obvious that the concept of property includes more than mere tangible goods. Second, E. Ostrom and E. Schlager, in their definition of property rights, suggest: “the authority to undertake particular actions related to a specific domain” (my italics). The word “domain” obviously includes more than just material goods, and indeed emphasizes the idea that “property” includes one’s labor, unpaid salary, etc. See: E. Ostrom and E. Schlager, 145

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freedom from past injustices “Property-Rights Regimes and Natural Resources: A Conceptual Analysis,” Land Economics, 68(3), 1992, 249–262, at p. 250. Let us further assume, that the source of this “exclusive ability” is connected to an entitlement that follows legitimate ways to acquire rights of ownership, usually by labor, but also by inheritance, gift receiving, creation, and, more generally, the entire “set” of entitlements termed by Nozick as justice in acquisition and transfer. Let us further assume that while ownership on property might not be absolute, such an entitlement is an important interest that individuals have. Moving on, let us assume that an entitlement to private property precedes and is not dependent on a given legal system, otherwise any legal definition that would accept current holdings as definitive would become the final word regarding ownership, ending any discussion on past wrongs (and see Chapter 5). On Nozick’s approach see: Nozick, Anarchy State and Utopia, pp. 150–153. See also: M. J. Radin, “Property and Personhood,” in Reinterpreting Property (Chicago University Press, 1993), pp. 35–71. The “exclusive” ability to use one’s property is constraint by the usual background rules in a given society; the fact that I own a car is limited by the rule that limits driving speed, for example, as explained by Waldron, The Right to Private Property, pp. 32–33. Lastly, “Hold, make use of, or alienate,” are just three of the major manifestations of different usages of property that property ownership entails; a fuller list may be found in: A. M. Honore, “Ownership,” in A. G. Guest (ed.), Oxford Essays in Jurisprudence (Oxford University Press, 1961), pp. 107–147, at pp. 112–128. 44. Honore, “Ownership”, in Guest (ed.), Oxford Essays in Jurisprudence, pp. 107–147, at p. 107. 45. It is interesting to note that libertarians have different opinions about such cases. Nozick, in a famous comment, maintained that the rectification of historical injustices is required, and may bring about principles of redistributive justice (i.e., taxation and welfare policies) for a limited period. While such an insistence on rectification may be expected from a libertarian, it is noteworthy that this “patterned” style policy is not a typical libertarian solution. That is, it does not emphasize a return to the status quo ante in which property rights are returned to their rightful place (and the property to the rightful owner), but a creation of a completely new situation, from which libertarian principles will apply. J. Narveson, also arguing from a libertarian perspective, reached the exact opposite conclusion from Nozick: that is, in most cases, current holdings should remain where they currently reside, as any change, either returning to the status quo ante or “patterned” distributions, will violate the property rights of the current owners who are (given that this is a historical wrong) probably innocent third parties. My point is that even those committed to the importance of 146

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notes

46.

47.

48.

49. 50.

property rights do not have a unified theory with regard to property claims following historical injustices. See: Nozick, Anarchy State and Utopia, pp. 230–231; J. Narveson, “Present Payments, Past Wrongs: Correcting Loose Talk About Nozick and Rectification,” Libertarian Papers, 1(1), 2009, available online at www.libertarianpapers.org. Indeed, several scholars have suggested that property rights are not stable: that is, usage, expectations, and further investments in the property may erode a previous claim to property in favor of the new owner. One important example is D. Lyons, “The New Indian Claims and Original Rights to Land,” Social Theory and Practice, 4, 1977, 249–272, especially p. 253. See also: Perez, “On Compensation and Return,” pp. 151–168. One famous critique of “historical entitlements to property”-style theories is that there is no simple “returning the original property to the rightful owners,” as the consecutive generation’s existence is causally connected to the wrong. Take out the wrong, therefore, and you have different people (I shall return to this point in Chapter 2). See: Davis, “Comments on Nozick’s Entitlement Theory,” pp, 836–844; C. Morris, “Existential Limits to the Rectification of Past Wrongs,” American Philosophical Quarterly, 21(2), 1984, 175–182. Locke, The Second Treatise of Civil Government, ch. 5, section 27. This proviso may be understood in several different ways, depending on how a given scholar understands the specific negative influence any appropriation has on non-owning individuals, especially if the good discussed is limited in quantity, such as land. Two important interpretations are: (1) “That no appropriation is legitimate if it makes the survival of any other person less rather than more likely”: Waldron, The Right to Private Property, p. 216; (2) the second interpretation differentiates between the thing appropriated and the overall sum of things available for appropriation. A plausible Lockean proviso, according to this interpretation, will only prohibit an appropriation that diminished the sum of all things (usually, of this “kind”) available for appropriation, not any appropriation generally. As a system of private property tends to increase things to be had, it is unlikely that the proviso will impose limitations aside from goods that are strictly limited in quantity and are (probably) important for individual welfare, such as land. On this sort of interpretation, see Nozick, Anarchy State and Utopia, pp. 174–182. On the connection between protection of property rights and the likely increase of overall property see: R. Hardin, Liberalism, Constitutionalism, and Democracy (Oxford University Press, 1999), pp. 41–44, 59–60. J. Waldron, “Superseding Historic Injustice,” Ethics, 103(1), 1992, 4–28. As far as I understand this point, the Lockean proviso is relevant both 147

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freedom from past injustices at the time of the original appropriation and at any given time after it. What makes it relevant is the “enough and as good” condition, that is, the interest of non-owners, not the “stage” of the relevant ownership. 51. Libertarianism, therefore, is not necessarily hostile to the supersession principle, even though it limits property rights, as many libertarians recognize (in some versions) the Lockean proviso. Libertarians will have objections to limitations (and, obviously, violations) put on property rights aside from those that may be justified by the Lockean proviso. See Nozick’s analysis of the Lockean proviso in Anarchy State and Utopia, pp. 178–182. 52. I do not mean by this to downplay the value of art, simply to point out that it is not the kind of good that may trigger the supersession thesis. Chapter 2 1. Several writers have raised the non-identity problem in the context of past wrongs, see especially: G. Sher, “Ancient Wrongs and Modern Rights,” Philosophy and Public Affairs, 10(1), 1981, 3–17, at p. 7; Davis, “Comments on Nozick’s Entitlement Theory,” pp. 836–844, at p. 842. 2. The reader may wonder why this chapter focuses on these two attempts? The reason is that these two attempts are comprehensive: they attempt to answer the non-identity problem and to justify intergenerational redress. Furthermore, the intellectual effort that went into creating them is impressive, and they therefore merit our attention – naturally, the only way to demonstrate these claims is to provide a careful analysis of the arguments themselves, which is the goal of this chapter. 3. While the harm is done to one’s group-centered identity, other interests may be harmed as well (and see in the text). 4. See: D. Parfit, Reasons and Persons (Oxford University Press, 1986), pp. 351–355; Morris, “Existential Limits to the Rectification of past Wrongs,” 175–182. Note that as the past wrongs examined in this article are major events, it is certain that the descendants of the victims are different people to the descendants that would have existed had the wrong not occurred. 5. There may be some unique cases in which living may be worse than not living. This article does not discuss such unique cases, not only because of their rarity, but also because the relevant cases to this article apply to a large number of people (usually the descendants of deceased victims of past wrongs), and it is unlikely that such unique circumstances in which it is (perhaps) better not to have existed would apply to such large numbers of people. On these unique cases see: J. Feinberg, “Wrongful Life and the Counterfactual Element in Harming”, in Freedom and Fulfillment (Princeton University Press, 1992), pp. 3–36, at pp. 14–26. 148

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notes

6.

7.

8.

9.

10.

Note that Feinberg is skeptical if compensation is due even in such cases, as it is not clear what an adequate compensation will be. One exception to this widely shared assumption is D. Benater, Better Never to Have Been (Oxford University Press, 2008), 28–30 (claiming that existence means pain and suffering to some degree, and that pain is worse than pleasure, and therefore that non-existence is better than existence). I’m not sure if I want to argue against a view that non-existence is better than existence, but in any case, note that it is not an argument that will vindicate a pro-redress view, it will simply condemn the past wrongdoers for bringing about existence as a whole, no more – I shall leave a fuller discussion of this peculiar view to another occasion. On these two options, see: Parfit, Reasons and Persons, pp. 357–364, T. Nagel supports the “no meaning” interpretation of the comparison between living and non-living, as does D. Heyd. See, Nagel, “Death”, in Mortal Questions, pp. 1–10, at p. 3; D. Heyd, “Are Wrongful Life Claims Philosophically Valid?,” Israel Law Review, 21, 1986, 574–590, at p. 579. A clear distinction needs to be made here between the description of the past injustice as a moral wrong at the time at which it was perpetuated, and the effect it has on those whose existence is causally connected to it, that is, the descendants. There is no doubt that the past injustice is wrong, but that should not mislead us, as our focus is on the descendants of the victims – those whose existence is causally connected to the wrong. See a similar discussion at: J. Woodward, “The Non-identity Problem,” Ethics, 96(4), 1986, 804–831, at pp. 808–809. In this context I find puzzling D. Butt’s disparaging remarks concerning the non-identity problem (writing “would anyone seriously argue that . . . they should not be compensated on account of the nonidentity problem …” in the context of the Chernobyl disaster). See: Butt, Rectifying International Injustice, p. 106. Note that this “historical” perspective does not claim that there are no ongoing new injustices that require redress, but simply that this is a different scenario. This approach is therefore different to the focus other scholars have on enduring injustices (cases in which a wrong is committed against a group continually for several generations (J. Spinner Halev, “From Historic to Enduring Injustice,” Political Theory, 35(5), 2007, 574–595), and is also different to arguments for redress following forward-looking reasons (Leif Wenar, “Reparations for the Future,” Journal of Social Philosophy, 37(3), 2006, 396–405), the focus on historical injustices does not criticize such different projects, but merely has a different focus. On such groups see: J. Raz and A. Margalit, “National SelfDetermination,” Journal of Philosophy, 87(9), 1990, 439–461, at pp. 443–447. 149

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freedom from past injustices 11. Weiner, Sins of the Parents, ch. 1; Thompson, Taking Responsibility for the Past, pp. 136, 139 (limiting the argument to “family lines,” but follows the same logic); A. J. Simmons, “Historical Rights and Fair Shares,” in Justification and Legitimacy (Cambridge University Press, 2001), pp. 222–249, at pp. 245–246. 12. Several scholars have raised this approach explicitly: Sher, “Ancient Wrongs and Modern Rights,” pp, 3–17, at p. 10 (presenting this point, but not fully endorsing it); this view of harm to identity is implicit at Thompson, Taking Responsibility for the Past, pp, 60–61; D. Miller, National Responsibility and Global Justice (Oxford University Press, 2007), pp. 155–156 (although Miller argues that such grounds for compensation claims are less persuasive than cases that point to material damages). See also: B. Boxill, “Black Reparations,” in Stanford Encyclopedia of Philosophy, section 7, the discussion on the “the harm argument” that entails at least partially a similar claim to the approach mentioned, available at: http://plato.stanford.edu/entries/ black-reparations. 13. G. Sher, “Transgenerational Compensation,” Philosophy and Public Affairs, 33(2), 2005, 181–200. 14. B. Boxill, “A Lockean Argument for Black Reparations,”, Journal of Ethics, 7(1), 2003, 63–91, and see his early formulation in Blacks and Social Justice (Rowman & Littlefield, 1992), 37–38. 15. A. Cohen, “Compensation for Historic Injustice: Completing the Boxill and Sher Argument,” Philosophy and Public Affairs, 37(1), 2009, 81–102. 16. Here two “timing” writers have a different version of this argument, Sher, as far as I understand, argues for a straightforward counterfactual “Transgenerational Compensation,” p. 193 (what I call “channeling”), while Cohen (“Compensation for Historic Injustice: Completing the Boxill and Sher Argument,” p. 82) offers a much more challenging addition: it is not what the parents would have done, but what children are owed from their parents as a natural right: and if this level of support was harmed due to the injustice, this is the extent of the claim of the children versus the wrongdoer. Generally, I prefer Sher’s straightforward counterfactual (and in the text take it to be the “timing’s” argument), as Cohen’s argument is much more complex, and introduces several further variables that may make the “timing” more vulnerable. For example, what is the content of the natural right of children to support from their parents? Furthermore, this will transform the “timing” argument to a redistributive argument, rather than a compensatory argument, as the argument no longer depends on an actual damage that took place, but on a general consideration regarding rights (which may be correct, but is not connected to intergenerational redress, simply to the duties of liberal governments according to this view). 150

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notes 17. I shall not discuss here another idea that exists in the literature: that is, that one can avoid the non-identity problem by compensating the dead victims themselves, usually by compensating the descendants of the victims. The reason for focusing on the above-mentioned arguments (beyond mere space limitations) is that compensating the dead means (by such arguments) compensating the descendants. I find this line of argumentation, first, to be limited in time, to the point at which the original victims do not know, and have no special connection to, their now numerous descendants; second, such an argument will depend on the difficult-to-grasp assumption that the interests that people have survive once such people have died – a highly problematic assumption; and, third, the descendants will still be vulnerable to the non-identity objection, and further objections as shall be discussed in the following chapters. Two such attempts are: S. C. Wheeler, III, “Reparations Reconstructed,” American Philosophical Quarterly, 34(3), 1997, 301–318; G. Rainbolt, The Concept of Rights (Springer, 2006), ch. 8. 18. The reason for this way to describe the ongoing harm is that other, post-“original wrong” wrongs, are vulnerable to the non-identity problem. 19. This assumption is shared by many advocates of the pro-redress view, for example: Miller, National Responsibility and Global Justice, pp. 154–155; Boxill, “Black Reparations,” Stanford Encyclopedia of Philosophy, section 7. 20. Some examples include: Zygmunt Bauman, “Morality in the Age of Contingency,” in P. Heelas et al. (eds.), Detraditionalization (Blackwell, 1996), pp. 49–59, at p. 50; Anthony Giddens, Modernity and Self-Identity (Stanford University Press, 1991), p. 3. In a direct application to the historical injustices literature, T. van den Beld suggests that even in cases in which the wrongdoer is still alive, a correct view of identity will point to a non-essentialist view, so a wrongdoer will become a non-wrongdoer if a sufficient time has passed. This is perhaps too radical, but the consequences of such approaches to situations in which all the original wrongdoers and victims have died, are obvious, that the pro-redress claim of identity theorists has a problematic view of the identity of group members. See T. van den Beld, “Can Collective Responsibility for Perpetrated Evil Persist Over Generations?,” Ethical Theory and Moral Practice, 5(2), 2002, 181–200, part 3. 21. See, for example, Butt, Rectifying International Injustice, pp. 187– 188. 22. To anticipate two objections: first, did the past wrong merely influence the group’s culture or did it change it completely? If the past wrong was so massive as to harm the current members of this group (and by that justifies compensation), it probably changed the group’s cultural 151

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freedom from past injustices identity completely. If the past wrong was only a moderate wrong, it could be that it merely influenced the group’s culture, but then it is unlikely that this past wrong harms the current group’s members, and will not justify compensating the current members. Second, it may be the case that the culture has changed, but the current members still identify with the members of the culture at the time of the original wrong, and still claim redress. The question then will be how to evaluate or measure group membership? Is it the sum of behaviors, norms, etc. or the mere subjective feeling of belonging? I doubt that there is a clear answer to such a question. But, the relevant factor in the context of avoiding the non-identity problem and justifying intergenerational redress, is to evaluate the following claim: if one identifies with a group that existed before a past wrong (even though that person’s behavior is dissimilar to the norms of the members of that group at the time of the wrong), such a subjective feeling may justify redress if (a) such a pure subjective approach to group membership is a plausible theory of membership; (b) it is a reliable explanation with regard to one’s (in) ability to succeed in one’s society; and (c) it may justify holding current people to be under a duty to bear the cost of redress. I find that “subjective belonging” as a way to justify redress to be highly implausible (and easily manipulated). The implausibility of this “subjective belonging” claim is important to our analysis, beyond the debate regarding “how to approach or measure the question of membership in groups.” 23. We can imagine other cases in which original victims planned, before the wrong, to pass some resources at their command to other people/ causes, although existing children are more likely candidates to such a scenario, empirically (making this a plausible counterfactual), and also following the special normative connection between parents and children. (Cohen, “Compensation for Historic Injustice: Completing the Boxill and Sher Argument”, pp. 85–86, describes a special kind of such a connection, between parents and children, and, without endorsing his specific solution, I think that he is right to point our attention to the fact that there is such a connection.) In any case, such plans to pass resources (other than to children) will be subject to the same problems (and see in the text above). 24. It was suggested to me that an alternative approach might be to concede that the descendants of the victims of past wrongs are indeed harmed following the wrong, as their entitlements to certain resources are denied, but that they also gained substantially from the wrong, as without it they would not have existed. As a result, on the aggregate, they still gain – and therefore they are not entitled to compensation following an event that, taken into account as a whole, benefited them. This is an interesting suggestion, but I still prefer the logic of the claim above: that the logic of the non-identity problem nullifies the claim 152

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notes

25. 26. 27.

28. 29.

30.

31.

32.

33.

for compensation, as non-existing people cannot have entitlements to compensation. To repeat: the claim that “without the wrong I would have had more resources,” makes no sense if without the wrong the claimant would not have existed. I thank one of the referees of this book for this suggestion. In real life cases, this distinction may be too subtle, but it is analytically valid (even if counterintuitive), and therefore merits our attention. In this section, “cultural identity” means the part of the members’ identity that is connected to their membership in the group. There is a body of literature arguing for the importance of groups to the individual well-being within the liberal school of thought (broadly defined). See, for example, W. Kymlicka, Liberalism, Community and Culture (Clarendon Press, 1989), J. Carens, Culture, Citizenship, and Community (Oxford University Press, 2000). This is important because if the problem is contemporary, the solution is via redistribution, not through redress style policies. Noteworthy here is that even researchers of national groups (one important example of groups the “identity” approach is discussing) who are sympathetic to the opinion that national groups have existed for extended periods of time, offer a much more complex view of the continuing existence of such groups. Needless to say, the “modern” school of the research of nationalism will be less sympathetic with regard to the “continued existence” view of groups offered by the “identity” approach to past wrongs discussed above. See: A. Smith, “Gastronomy or Geology? The Role of Nationalism in the Reconstruction of Nations,” Nations and Nationalism, 1(1), 1995, 3–23 (a complex yet sympathetic view of the continued existence of national groups); B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, new edn (Verso, 2006) (rejecting the continuing existence view). J. G. Fichte, Addresses to the German Nation, trans. R. F. Jones and H. H. Turnbull (Open Court, 1922), see especially the fourth address at pp. 52–72. J. G. Herder, “Yet Another Philosophy of History,” in J. G. Herder on Social and Political Thought, ed. F. M. Barnard (Cambridge University Press, 1969), pp. 179–223. Note that this view of the “person” as defined by his or her group membership is stronger and different to the way in which liberal nationals describe the “person” in their theories. See, for example, D. Miller, Citizenship and National Identity (Polity, 2000), pp. 125–142; Dan Avnon and Avner de-Shalit, “Introduction: Liberalism between Promise and Practice,” in D. Avnon and A. de-Shalit (eds), Liberalism and Its Practice (Routledge, 1998), pp. 1–17. This is a fairly informal term. What I mean here is both the legal option 153

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freedom from past injustices of marrying someone who is not a member of one’s group through civil marriages, and a social environment that accepts such social connections and encourages them. 34. One especially worrisome aspect of this view of the person is cases of cultural defense in criminal law. If a person is defined by his or her communal belonging, as the “identity view” claims, can such a belonging excuse that person from meeting certain liberal standards of behavior? This is just one example for the potential negative consequences of the “identity” approach of the “person.” A critique of cultural defenses may be found at: V. L. Sacks, “An Indefensible Defense: On the Misuse of Culture in Criminal Law,” Arizona Journal of International & Comparative Law, 13, 1996, 523–550. See also: N. Perez, “Why Tolerating Illiberal Groups is Often Incoherent: On Internal Minorities, liberty, ‘Shared Understandings’ and Skepticism,” Social Theory and Practice, 36(2), 2010, 291–314. Chapter 3 1. Sher, “Transgenerational Compensation,” pp. 181–200. 2. Boxill, “A Lockean Argument for Black Reparations,” pp. 63–91, and see his early formulation in Blacks and Social Justice, 37–38. 3. Cohen, “Compensation for Historic Injustice: Completing the Boxill and Sher Argument,” pp. 81–102. 4. I shall refer to “victim,” but the discussion applies to “victims” as well; the same for “wrongdoer” and “wrongdoers.” 5. All three scholars argue that compensation offered today (2011) for past injustices is justified following the continued injustice phenomenon. There are some differences between the three scholars that are beyond my focus here. I shall present, to the best of my ability, the most charitable version of the CIA and then argue against it, while not claiming that this is a precise presentation of the views of any one of the three scholars. 6. Nozick, Anarchy State and Utopia, p. 57. 7. Descendants are the most likely people to inherit property that originated in the wrong, but the argument applies to whoever inherited this property (“the beneficiaries”). 8. Property may also include the value of unpaid labor that was passed to the descendants of the wrongdoer, although in such cases it would become more difficult to identify the relevant assets in a way that would decrease the likelihood of a justified restitution claim. 9. There are many ways to define “welfare,” but as long as units of welfare are measurable and transferable (i.e., we are not discussing religious artifacts, sacred land, etc.), the discussion in the text above is valid. Issues of non-measurable goods (sacred land) complicate the discussion in various ways, and are outside the scope of this chapter. 154

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notes 10. Kull, “Rationalizing Restitution,” pp. 1191–1242, at p. 1196, see also the complex analysis by Dagan, The Law and Ethics of Restitution, chs 1 and 7. 11. Janna Thompson is the most well known of these scholars, in her Taking Responsibility for the Past. 12. Nozick, Anarchy State and Utopia, p. 57. 13. See Simmons, “Historical Rights and Fair Shares,” pp. 222–249, at pp. 228–230. 14. Waldron, “Superseding Historic Injustice,” pp. 4–28, at p. 8. 15. E. Posner and A. Vermeule, “Reparations for Slavery and other Historical Injustices,” Columbia Law Review, 103(3), 2003, 689–748. 16. Warren, Who Speaks for the Negro, p. 434 17. A and B stand for a large number of people. 18. There may be some complications with regard to the timing of B’s parenthood, as if the parenthood beginning date is later than the original wrong, the wrong may be causally connected to the parenthood, raising non-identity issues. In the scenario above I take the more cautious route of describing B as a parent before the wrong was done – and see Chapter 2 for an elaborated discussion. 19. I assume that we are discussing the descendants of the original victims, and that we can identify them. Attempts to discuss members of communities, rather than strictly identifiable descendants, will be much more controversial, as the identity of the current “representatives” of the wrongdoers and the victims will raise difficult demarcation and identification issues that weaken considerably the CIA. I shall therefore discuss strictly identifiable descendants. See: E. F. Paul, “SetAsides, Reparations, and Compensatory Justice,” in J. Chapman (ed.), Compensatory Justice (New York University Press, 1991, Nomos XXXIII), pp. 97–142, at pp. 114–117; and see Chapter 4. 20. Boxill argues that the duty to compensate is not connected to the well-being of the descendants of the original victims. I shall reject this attempt to create a gap between the situation of the descendants and their potential right to compensation, see section C in this chapter for a discussion, and see Boxill, “A Lockean Argument for Black Reparations,” p. 69. 21. See: Sher, “Ancient Wrongs and Modern Rights,” pp. 3–17, at pp.12– 13. 22. Here two CIA writers have a different version of this argument. Sher, as far as I understand, argues for a straightforward counterfactual, “Transgenerational Compensation,” p. 193, while Cohen (“Compensation for Historic Injustice: Completing the Boxill and Sher Argument,” p. 82) offers a much more challenging addition: it is not what the parents would have done, but what children are owed from their parents as a natural right; and if this level of support was harmed 155

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23.

24. 25. 26.

27.

28.

29. 30.

31.

due to the injustice, this is the extent of the claim of the children versus the wrongdoer. I shall go back to this point in section C below, but, generally, I prefer Sher’s straightforward counterfactual, as Cohen’s argument is much more complex, and introduces several further variables that may make the CIA more vulnerable. For example, what is the content of the natural right of children to support from their parents? Furthermore, I am not sure that we can simply assume such a natural right as this will open up the possibility of parents violating this right, especially if the level of expected support is substantial – do we want children suing their parents following alleged failure to meet this natural right? Lastly, if the CIA neglects the counterfactual, it is no longer a compensatory measure but a redistributive measure, and therefore outside our framework. J. Thompson also uses the term “injustices to family lines,” but her approach discusses harms done to families, not only “setback” issues. Her approach introduces a collectivist aspect, different than the individualistic approach of the CIA. It is therefore a distinct argument from the “setback in welfare” argument that interests me here. See Thompson, Taking Responsibility for the Past, ch. 9. In this section “compensation” means Nozickian compensation. A and B stand for a large number of people. The CIA argument does not discuss victims without children (or let us say, relatives), and the conclusion is that a wrong done to childless victims does not require rectification after the victim and the wrongdoer both die, at least following the CIA approach. There may be a case for restitution, but this will require that some entity will represent the now deceased victim, a scenario that raises complex issues and is outside my discussion here, but see Chapter 4. If A dies childless, the argument about “property return” applies to whoever inherited his or her property, the argument concerning compensating the descendants of the original victims remains unchanged, and see in the text. Restitution claims should apply to whoever was unjustly enriched following the wrong, and is under the duty to restore this property to the descendants of the victims. It is likely, but not necessary, that these will be the descendants of the wrongdoers, and therefore this is how I allude to those unjustly enriched. Mabo v. Queensland (No. 2) (1992), HCA 23. Here I am alluding to the status of terra nullius as a whole, not the specific case of the Murray Islands, which was the case in Mabo – in this case, the Merriam people were not removed from their land. “this court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and 156

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notes

32. 33.

34.

35. 36.

37. 38.

39.

40. 41.

42. 43.

internal consistency”: Mabo v. Queensland (No. 2) (1992), HCA 23, para. 29 in Brennan J.’s opinion. Waldron, “Superseding Historical Injustices,” pp. 20–26. So suggestions, such as that of P. Adam, that if the aborigines of Australia ask that any Australian who arrived post-1788 to leave, post1788 Australians should leave, are a violation of my criterion. P. Adam, “Pay UP or Leave,” Sydney Morning Herald, August 12, 2009. Territorial claims in restitution cases have won the attention of scholars, here I’m simply interested in stating the limits to such restitution claims, rather than exploring all the possible solutions to such territorial disputes. See: T. Meisles, Territorial Rights (Springer, 2009), ch. 4. Ignoring issues unconnected to the CIA, such as taxation. Note that the descendants of the wrongdoer have no connection to the past wrong, are passive recipients of the mentioned property, and up to the point in which all the criterions noted above are met (and are made public), they do not have the mental element required for a fault. Their responsibility is to return (or restore), nothing more. See also: Cane, Responsibility in Law and Morality, pp. 221–223. Leaving, for the sake of clarity, issues unconnected to the CIA, such as inheritance tax etc. It may be argued that following the “continuing injustice” logic, all the property the wrongdoer accumulated is tainted with the wrong. This seems too harsh and all inclusive, and, when applied to the descendants, even vindictive. This point is important: any other conclusion will ignore the basic principle of the distinction between persons, by lumping together wrongdoers and their descendants. I follow here Rawls’ critique of utilitarianism (although I use it in a different context, as discussed above), Rawls, A Theory of Justice, p. 24. There may be issues of remembrance and memory involved, outside of my discussion here. On the instability of property claims see Lyons, “The New Indian Claims and Original Rights to Land,” pp. 249–272, especially p. 253. Given the Lockean justification for property rights, this is not surprising. Locke wrote: “The labour of his body, and the work of his hands, we may say, are properly his”. Given that in many “fade away” cases the current property is very different than the original property – following the labor of the new owner – the Lockean argument will arguably favor the latter owner. See: Locke, The Second Treatise of Civil Government, ch. 5, section 27. Waldron, “Superseding Historical Injustices,” pp. 15–20. J. S. Mill, Principles of Political Economy (Penguin, 1970), Bk 2, ch. 2, section 2. See also: M. J. Radin, “Diagnosing the Taking Problem,” in J. Chapman (ed.), Compensatory Justice (New York University Press, 1991, Nomos XXXIII), pp. 248–278, at pp. 254–256. 157

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freedom from past injustices 44. There may be some exceptions, such as family heirlooms (for reasons of identification and emotional attachment), see, for example, the Maria Altmann case (which is actually more complex than a simple “family heirloom”) in the famous Holocaust art restitution case in E. R. Schoenberg, “Whose Art Is It Anyway?,” in M. Bazyler and R. P. Alford (eds), Holocaust Restitution (New York University Press, 2006), pp. 288–297. See also: Thompson, Taking Responsibility for the Past, p. 125, and see Chapter 5. 45. An interesting example is the status of aboriginal claims to land in Australia, and what happens if such claims “collide” with existing claims to land, say, in an existing lease. In the Wik decision, the Australian Supreme Court accepted that if there is an “inconsistency” between a native claim to land and contemporary owners/people holding a lease, native title is extinguished. While there may be other reasons for the court’s decision, the fade away logic and the development of a legitimate property claim may provide a justification for the court’s decision. See: Wik Peoples v. Queensland (1996), HCA 40, the postscript to Brennan J.’s (majority) opinion. 46. There may be some prudential reasons for both options (return and not returning), for example, in cases in which one option may be more conducive to peaceful transitions of regimes, the ending of ethnic conflict, etc. See: Teitel, Transitional Justice. In such cases, the decision what to do does not follow (only) the CIA, and see Chapter 5. 47. One especially clear example (among several) is G. Gaus, “Does Compensation Restore Equality,” in J. Chapman (ed.), Compensatory Justice (New York University Press, 1991, Nomos XXXIII), pp. 45–81, at p. 59. 48. “Vicarious responsibility” is sometimes used for such cases, in which “The aim of these rules is to ensure that the plaintiff’s need for compensation is met regardless of whether the defendant was in any way morally responsible for generating that need” (P. Cane, “Justice and Justifications for Tort Liability,” Oxford Journal of Legal Studies, 2, 1982, 30–62, at 34), while in the cases above the payer is not necessarily a “defendant” the similarity lies in the lack of moral responsibility. See also the discussion in the text. 49. And see the discussion by J. Narveson, “Collective Rights,” Canadian Journal of Law and Jurisprudence, 4(2), 1991, 329–345, at 340–344. 50. The descendants of the original wrongdoers may take part in this compensation as a part of their membership in a state that compensates the descendants of the original victims, but this is a completely different issue to their separate situation with regard to potential property returns, discussed in section 3.C.1 above. 51. This point also depends on the type of wrong: if the wrong is the lack of compensation for “setback” in welfare, it may indeed be superseded if 158

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52.

53.

54. 55.

56.

57.

58.

the descendants are above the noted level of welfare, but if the original victims (slavery, Holocaust) are still alive, the scenario changes, and in any case, it is no longer a historical injustice case. There is a fundamental difference between the severity of such monstrous crimes and the wrong of failure to compensate a descendant of an original victim. If A the driver hits B the driver, and it is A’s fault, but B failed to fasten his safety belt, B’s right to damages is reduced, the argument above has a similar structure, with the addition that the payer is not the wrongdoer in historical injustices cases. While responsibility does not “flow” directly from causality, disconnecting the two completely will harm individual rights, and is unreasonable, see: A. Ripstein, Equality, Responsibility and the Law (Cambridge University Press, 1999), pp. 46–47, 65–70; and the definition of responsibility given in Chapter 1 above. Compensation to the descendants of the victims may be required here, offered by the noted third parties. The arguments that follow are formulated specifically as pertaining to the CIA. There are other information-related problems, such as identifying adequate claimants and the reliability of the information regarding the original wrong. These are general problems that apply to the CIA too, however, as they are covered in the relevant literature, I do not discuss them above. See, for example, B. Bittker, The Case for Black Reparations (Random House, 1973), chs 8–10. See: E. R. Korman, “Rewriting the Holocaust History of the Swiss Banks,” in M. Bazyler and R. P. Alford (eds), Holocaust Restitution (New York University Press, 2006), pp. 115–134. There may be other reasons aside from the CIA to justify compensation and/or return, especially forward-looking reasons such as attempts to try to solve ongoing conflicts, but the CIA on its own does not provide a justification for such policies. On forward-looking reasons see Wenar, “Reparations for the Future,” pp. 396–405, but see Chapter 5. Nothing said here implies that the descendants of the victims will not be entitled to the resources allocated following considerations of distributive justice, however these are defined.

Chapter 4 1. R. Dworkin, Sovereign Virtue (Harvard University Press, 2000), p. 229. 2. The definition given in Chapter 1 is: in order to indicate that person A is responsible for bad state of affairs B, person A performed X voluntarily, X caused B, and X was morally wrong or faulty. If all three conditions apply, and only if all three conditions apply, A is responsible for bad state of affairs B. 159

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freedom from past injustices 3. H. D. Lewis, “Collective Responsibility,” in L. May and S. Hoffman (eds), Collective Responsibility, Five Decades of Debate in Theoretical and Applied Ethics (Rowman & Littlefield, 1991), pp. 17–34, at p. 17. In law, the place of collective responsibility has diminished dramatically and focus is increasingly placed on the perpetuators themselves and decision makers. See: S. Darcy, Collective Responsibility and Accountability under International Law (Brill, 2007), especially pt A, section I. 4. H. Arendt, “Collective Responsibility”, in Responsibility and Judgment (Schocken, 2005), pp, 147–159. 5. See: Feinberg, “Collective Responsibility,” in Doing and Deserving, pp. 222–251, at pp. 230–231. 6. See: Cane, Responsibility in Law and Morality, pp. 158–165. While agreeing with Cane on this point, my analysis is more similar to what he calls the “humanistic” approach. 7. The literature concerning corporations and collective responsibility carefully examines whether corporations are entities in and of themselves or a mere aggregation of individuals (employees, shareholders, etc.). It is not easy to determine whether this rather abstract debate on the “nature” of a corporation has any immediate, direct bearing on the matter of intergenerational redress. I shall examine the nature of corporations, therefore, only if there are direct implications for the issue of redress. On the nature of corporations see: M. J. Phillips, “Reappraising the Real Entity Theory of The Corporation,” Florida State University Law Review, 21, 1993/4, pp. 1061–1123 (for an overview); also French, Collective and Corporate Responsibility, chs 3 and 4 (siding with the “real entity” argument). 8. Note that, in both cases, the “collective” is well defined: the citizens of the state and the employees and shareholders of the company. There are some attempts to justify creating collective responsibility even when there is no clearly defined “collective,” adding the substantial difficulty of how to define the “collective” to the already complex issue of collective responsibility. This further diminishes the likelihood of creating a persuasive scenario in which collective responsibility does indeed exist. I shall, therefore, focus on cases in which there is a clearly defined “collective.” Two attempts to justify collective responsibility without a clearly defined “collective” are: Miller, National Responsibility and Global Justice, pp. 117–120, 124–131; V. Held, “Can a Random Collection of Individuals be Morally Responsible,” Journal of Philosophy, 68, 1970, 471–481. For a critique of such attempts see C. Kukathas, “Responsibility for Past Injustices, How to Shift the Burden,” Politics, Philosophy & Economics, 2(2), 2003, 165–190, at pt IV. 9. On Weber’s “ideal types,” see his “Objectivity in Social Science and 160

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notes

10.

11. 12.

13.

14.

15.

16.

17.

Social Policy” in The Methodology of the Social Sciences. eds and trans. E. A. Shils and H. A. Finch (Free Press, [1904] 1949), p. 90. F. Abdel-Nour, “National Responsibility,” Political Theory, 31(5), 2003, 693–719, especially pp. 696, 703; Miller, National Responsibility and Global Justice, pp. 158–159. F. Abdel-Nour, “National Responsibility,” p. 709. “Our” fan may suffer indirectly if her or his favorite team were to be rejected from participation in future matches, but no collective responsibility for the wrongs themselves or request to participate in compensation following the wrongs will be applied to “our” fan. I prefer “taxpayer” to a “citizen” as the taxpayer is involved in some activity, while citizenship can be a very passive status (ascribed by birth, possibly to an individual indifferent to politics). Paying taxes is active, though obviously not voluntary (see text above). Note also that paying taxes is an example for a participatory activity, not the only such possible activity. The “employee” here is shorthand for anyone who is connected with the company, but was not directly involved in the wrong. This includes shareholders. Note that I do not discuss the case of those directly involved in the wrong, that is, the wrongdoers. Such persons are individually responsible for their acts, leaving no reason to invoke a much more complex collective responsibility. Larry May adds a hybrid of the identification and participation categories. May argues that: (1) one may choose one’s attitudes; and (2) attitudes are causally connected to actions/omissions of the collective. Therefore, one is responsible for the actions of one’s collective. This characterizes attitudes as a hybrid entity: they are not fully actions, but they are not mere emotions such as shame and pride. I think that May’s admittedly interesting framework ultimately suffers from the attempt to present attitudes as actions. I find it hard to imagine a liberal legal framework that would penalize (or even investigate) attitudes without violating fundamental liberal rights, and therefore I remain within the framework of clear actions such as paying taxes. See: May, Sharing Responsibility, especially chs 1 and 4. The importance of the non-voluntariness of entry is highlighted by J. Narveson, “Collective Responsibility,” Journal of Ethics, 6(2), 2002, 179–198, at 181. The non-voluntariness of entry, and the difficulty of exit, make some attempts to present states as voluntary, following the existence of democratic procedures less convincing. One such attempt is J. Parrish, “Collective Responsibility and the State,” International Theory, 1(1), 2009, 119–154. A. Stilz continues Parrish’s line of argument, and attempts to justify the collective responsibility of the citizens of democratic states through the value of membership in a democratic 161

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18.

19.

20.

21. 22. 23.

regime. Such membership, the argument goes, creates duties for the individual member. Such suggestions lead away from a concept of individual voluntariness serving as a basic condition for responsibility. In the discussion above, I therefore emphasize paying taxes, which is an actual act of participation (rather than mere citizenship). The less a given individual actually does, the more the ascription of collective responsibility undermines considerations of individual responsibility and of voluntariness. See: A. Stilz, “Collective Responsibility and the State,” Journal of Political Philosophy, 19(2), 2011, 190–208, at 204. If a person participates in “policy-changing” activities in addition to paying taxes, this affects the attribution of responsibility, and therefore I include it here. Such considerations are repeated in various ways by several scholars. One clear example is H. McGary, “Morality and Collective Liability,” in L. May and S. Hoffman (eds), Collective Responsibility, Five Decades of Debate in Theoretical and Applied Ethics (Rowman & Littlefield, 1991), pp. 77–88, at pp. 84–85. A major issue in the literature on collective responsibility is how one may avoid being implied in collective responsibility. Suggestions, by scholars that accept collective responsibility as a useful concept, vary from doing anything a reasonable person can do to prevent the outcome (Miller), to radical views in which even opposition to the wrongful policy is insufficient in order to escape from collective responsibility (Raikka), to the view that imposing sanctions on those who failed to act as heroes is an excessively demanding morality (Lippert-Rasmussen). Note that the question here is not only what can be expected from this taxpayer, but what level of action or inaction may justify sanctioning this individual in post-wrong scenarios. On avoiding collective responsibility see: Miller, National Responsibility and Global Justice, pp. 121–123; J. Raikka, “On Disassociating Oneself from Collective Responsibility,” Social Theory and Practice, 23, 1997, 93–108. Raikka’s approach seems to be too radical as it leaves almost no way in which a person may disassociate her- or himself from collective responsibility. This leaves too much room for moral luck, and an alternative view which focuses more on actions than on circumstances would be more attractive. See Nagel’s remark in the context of just war theory in “War and Massacre,” in Mortal Questions, pp. 53–74, at p. 63; K. Lippert-Rasmussen, “Responsible Nations: Miller on National Responsibility,” Ethics & Global Politics, 2(2), 2009, 109–130, DOI: 10.3402/egp.v2i2.1935. David Hume, “Of the Social Contract,” in Hume’s Moral and Political Philosophy, ed. H. D. Aiken (Hafner, 1974), pp. 356–373. Or, more generally, to the level of participation. In contemporary cases, the question of how to allocate the costs 162

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24.

25.

26.

27.

between the members of the state may rise. Normative considerations may point to allocation that is correlated to the level of participation, while public policy considerations may point to equal allocation between the citizens of the state (specifically, via taxes). On this, see: A. Pasternak, “Sharing the Costs of Political Injustices,” Politics, Philosophy & Economics, 10(2), 2011, 188–210. As I indicate above, an approach that implicates the actual wrongdoers (or an approach as close to this as possible) is much preferable, similar to the legal doctrine of “relative fault,” as explained by G. Fletcher, Romantics at War (Princeton University Press, 2002), p. 158. Is this an under-demanding morality? I don’t think so. In some cases, where the wrong is severe and there are easy and risk-free ways to change the relevant policy, there may be moral duties to assist efforts of redress (or the prevention of the wrong). In other cases, the focus should be on the wrongdoers, not on the non-involved or indirectly involved bystanders. Doing something in cases in which the cost of attempting to change a wrong policy is very high is admirable, but should not be required by the legal system, otherwise, the line between the wrongdoer and the non-wrongdoer will be blurred completely. One unfortunate by-product of such a blurring of lines is the increased likelihood of punishing innocent third parties. For example, if external observers think that such bystanders could have changed the wrong policy without substantial risk to themselves, such individuals might be punished despite not having perpetrating the wrong. Such evaluations are problematic at best, and the law should focus on the wrongdoers themselves. For a similar argument, in a somewhat different context, see: J. Dressler, “Some Brief Thoughts (Mostly Negative) About ‘Bad Samaritan’ Laws,” Santa Clara Law Review, 40, 1999–2000, 971–989. Note that “voluntariness” re-enters the picture here, although in a diminished capacity, to avoid a moral scandal in which responsibility is created while no choice was available to the member of the collective. Obviously, the voluntariness applies to the participation – not the original wrong. As noted above, the employee is an “ideal type.” I shall avoid making distinctions between employees and other persons connected to “a company,” such as shareholders, unless absolutely necessary for the argument. I shall also use “company” and “corporation” interchangeably. A related question is when should an employee leave a company if this company commits a wrong? Several indicators are relevant in such cases, for example: how severe is the wrong? What is the financial situation of the employee? How difficult is it for her or him to find a new position?, etc. 163

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freedom from past injustices 28. This roughly describes what some Swiss banks did with the property of Jews after the Second World War. See Korman, “Rewriting the Holocaust History of the Swiss Banks,” in Bazyler and Alford (eds), Holocaust Restitution, pp. 115–134. 29. Miller, National Responsibility and Global Justice, p. 155; Butt, Rectifying International Injustice, ch. 4; L. Radzik, “Collective Responsibility and Duties to Respond,” Social Theory and Practice, 27, 2001, 455–471, at 458–459; E. Sherwin, “Reparations and Unjust Enrichment,” Boston University Law Review, 84(5), 2004, 1443– 1465; M. Ridge, “Giving the Dead Their Due,” Ethics, 114(1), 2003, 38–59, at 46; D. Butt, “On Benefitting from Injustice,” Canadian Journal of Philosophy, 37(1), 2007, 129–152 (Miller, Butt, Radzik, and Ridge, endorse the idea, whereas Sherwin considers it and rejects it, at least in intergenerational cases). See also the non-academic, yet often quoted: R. Robinson. The Debt: What America Owes to Blacks (Plume, 2001), endorsing the benefit argument. 30. There is some similarity between the scenario discussed above and the case of a good faith purchaser. The relevant literature on such “good faith” cases examines who is the rightful owner: the good faith purchaser, the original owner, or, in some more complex cases, their descendants. Different legal systems have different rules for such cases. However, in a majority of cases, the combination of the good faith purchaser’s claim (who after all, paid for the goods) and statutes of limitations will favor the good faith buyer if an extended period of time has passed since the purchase was made. Note, however, that our case is a bit different: in good-faith buyer scenarios the purchaser is acting, while in our case the beneficiary is completely passive. See also Chapter 5 for efficiency-related arguments in such cases. For an excellent overview of the legal literature, see: S. Levmore, “Variety and Uniformity in the Treatment of the Good Faith Purchaser,” The Journal of Legal Studies, 16(1), 1997, 43–65. 31. Robinson. The Debt: What America Owes to Blacks. 32. Two famous cases from Australia are the Mabo case (Mabo v. Queensland (No. 2) (1992), HCA 23), and the Wik case (Wik Peoples v. Queensland (1996), HCA 40). The former decision examined the status of terra nullius in the Australian case, the latter examined whether existing leases extinguish native title to land. The Mabo case is the focus of N. Sharp, No Ordinary Judgment: Mabo, the Murray Islanders’ Land Case (Aboriginal Studies Press, 1996). Note that this book presents a very different approach to the one I adopt here; while it takes for granted that contemporary members of settler societies benefit from past injustices and, therefore, are obligated to compensate the descendants of deceased victims of past wrongs, Sharp also claims that the cultural gap between the Anglo-Saxon perspective and the 164

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33.

34.

35. 36.

37.

38.

39. 40. 41. 42. 43. 44. 45.

aboriginal perspective is so wide as to make any rational discussion impossible. P. Adam, “Pay Up or Leave: Our Duty to the Aboriginal People,” The Sydney Morning Herald, August 12, 2009. The fifth paragraph of this article reads as follows: “But are we responsible for the sins of others? As far as I know, none of my ancestors killed any indigenous people. But we have benefited from death and dispossession, and have grown wealthy from the poverty of others. If I discovered my grandfather had killed a man and plundered his property, I think I would try to find any descendants of the murdered man and at least say sorry. For I would have benefited from that crime.” Obviously, many aspects of the fair play argument differ significantly from the concerns of intergenerational collective responsibility that interests me here. I shall focus on the question of whether a passive recipient of benefits incurs obligations to participate in the cost of producing the benefit. This is both an important aspect of the “fair play” controversy, and a central aspect of the intergenerational collective responsibility debate. H. L. A. Hart, “Are There Natural Rights?,” Philosophical Review, 64(2), 1955, 175–191, at 185. J. Rawls, “Legal Obligation and the Duty of Fair Play,” in Collected Papers, ed. S. Freeman (Harvard University Press, 1999), pp. 117–129, at p. 128. Rawls later limited the fair play argument only to citizens who are “better placed members of society,” especially as they are more likely to hold political office (Rawls, A Theory of Justice, pp. 302–303. In this entire subsection, I discuss duties and obligations, and not enforceability. Enforcement implies a legal system, and there are many potential objections to the creation of a legal norm, in addition to the problems associated with moral norms, in the context of the fair play argument. As discussed in the text above, the fair play–benefit argument is unconvincing in the moral realm and there is no need to add a legal dimension. In the context of intergenerational redress, this principle will mean that the cost of the redress levied on the individual citizen will be fairly modest, since the value of “diffused” benefits, pro-rated to the individual, is modest as well. Nozick, Anarchy State and Utopia, pp. 93–95. Simmons, “The Principle of Fair Play,” in Justification and Legitimacy, pp. 1–26. Simmons, “The Principle of Fair Play”, p. 13. Simmons, “The Principle of Fair Play”, p. 18. Simmons, “The Principle of Fair Play”, p. 25. Nozick, Anarchy, State and Utopia, p. 95. To remind: the original benefit should be identifiable and large enough 165

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46.

47. 48. 49. 50.

51.

52. 53. 54.

55.

56.

to unjustly enrich the society as a whole; this unjust enrichment is significant enough to justify some sort of material disgorgement; that those unjustly deprived are identifiable; and the level of immediate and reliable information required to determine factors 1–3 must be high. There are further critiques of the “fair play” argument: for example, that it can justify duties only if a violation of duties harms someone else or deprives another person from a benefit she or he would have enjoyed if another member had met his obligation (that is, the fair play argument can justify some obligations, but not others). See: M. B. E. Smith, “Is there a Prima Facie Obligation to Obey the Law,” Yale Law Journal, 82(5), 1973, 950–976, at 955–960. Such an argument may limit redress if, for example, the descendants of the victims are well off. However, once we cast the “fair play” argument into doubt on grounds of voluntariness, such further objections are unnecessary. Nozick, Anarchy State and Utopia, p. 94; Simmons, “The Principle of Fair Play,” p. 18. This “open space” is described by Nozick in the last part of his book, see: Nozick, Anarchy State and Utopia, pp. 307–309. R. Arneson, “The Principle of Fairness and Free Rider Problems,” Ethics, 92(4), 1982, 616–633, at 618–619. Note that as emphasized above, exit is not an option, either because emigration is too difficult, is an immoral requirement (as in the “pay up or leave” scenario described above), or because such public goods (and therefore the benefits) also exist in other destinations of potential emigration. As, according to some, being a citizen of a different country would not mean that person X has stopped benefitting from past wrongs, it is simply a different wrong that she or he is benefiting from now. This has been argued, for example, by Arendt, “Collective Responsibility,” in Responsibility and Judgment, pp. 147–159. G. Christie, “On the Moral Obligation to Obey the Law,” Duke Law Journal, 6, 1990, 1990, 1311–1336, at 1324–1326. L. Carroll, Alice’s Adventures in Wonderland, Project Guttenberg, ch. 7, available at: http://www.gutenberg.org/files/11/11-h/11-h.htm. A recent attempt to re-purpose this argument is to claim the opposite: that it is justified to create an obligation if the cost to the passive beneficiary is small. But this, again, misses the point, which is not the cost to the passive recipient, but the lack of expressed will to receive this benefit. See this recent attempt: Butt, “On Benefiting from Injustice,” pp. 129–152, at pp. 140–141. The diffusion of the benefit is important as it would make it more complex to identify the benefit, and to return it, as to return it would require more than returning the “thing” stolen. If the benefitting “side” is not the state or the society at large, but a 166

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57. 58.

59.

60.

corporation, what are the duties of this corporation? The basic argument analyzed above, that being a passive recipient of a diffused benefit cannot justify the creation of a duty to redress (from the perspective of an employee who joined the company after the wrong became a historical wrong) is relevant in the corporation case as well. However, the corporation scenario differs slightly from cases in which the state or an overall society is the beneficiary, as the employee in such a corporation can exit the company, and therefore the benefits can be avoided. Thus, if a corporation benefits from a past wrong, even if the current employees were completely passive in the process, the pro-redress argument makes more sense, and a duty to return the value of the benefit may be the correct conclusion. Obviously, such duties are sensitive to various information-related problems as in any restitution case, but as long as the unjust enrichment may be identified (admittedly, considerations that were discussed in Chapter 3 may erode such restitution-style claims), the moral considerations are different to those for the “society at large.” Thus, there can be an intergenerational collective responsibility to return the value of the unjust enrichment to the lawful owner in cases of commercial wrongdoing. A restitution-style claim may survive a somewhat less stringent examination in cases brought up against companies than in cases brought against the state, as the fear of imposing costs (the restitution costs) on beneficiaries that cannot avoid the benefit are less relevant since the option of exit is open. Perhaps no benefits resulted from the wrong, or the benefits were eroded by being “diffused” and indirect, as explained in section 4.A. Boxill, Blacks and Social Justice, p. 147; A. Valls, “Reconsidering the Case for Black Reparations,” in J. Miller and R. Kumar (eds), Reparations: Interdisciplinary Inquiries (Oxford University Press, 2007), pp. 114–129, at pp. 115–116. Note that both Boxill and Valls argue that the wrong done to African Americans in the United States continued for many years after slavery ended, and therefore do not argue for specific policies as acts of redress for historical injustices, but rather as a response to ongoing injustices. I refer to their views merely as illustrations, therefore, I am not sure what their views would have been regarding a “pure” case of redress following a past wrong: the case that interests me here. See, for example, Adeno Addis, “Role Models and the Politics of Recognition,” University of Pennsylvania Law Review, 144(4), 1996, 1377–1468, at 1431–1467. It is interesting to note that even supporters of reparations for past wrongs focus their attention on direct descendants, rather than communities as a whole, for the reasons mentioned above. See: K. D. Wenger, “Reparations Within the Rule of Law,” T. Jefferson Law Review, 231, 2006/7, 231–250, at 245. 167

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freedom from past injustices 61. It will also introduce a strong incentive for presenting existing situations as resulting from past wrongs, as a legal ruling which provides financial support for such cases sets precedence for other, future cases. While such a phenomenon is not unique to this case, nor is it a sufficient reason for withholding a legal rule, it adds a further reason to be skeptical whether this particular justification for redress (already doubtful) will not end up encouraging opportunists who may see this “mental association” argument as easily abused. See further discussion in Chapter 5. 62. Apostolides v. Orams, ECJ, 2009. 63. This case has other important aspects, such as international litigation vis-à-vis state courts, which are outside of our subject matter. 64. Scenarios of a third party “good faith” buyer and his or her relations to the original owner exist in other contexts as well, especially with regard to stolen art. The legal solutions to such situations vary between countries, but often resort to a rather technical solution resulting from statutes of limitations, making the “good faith” third party the legal owner. See: P. Y. Reyhan, “A Chaotic Palette: Conflict of Laws in Litigation between Original Owners and Good-Faith Purchasers of Stolen Art,” Duke Law Journal, 50(4), 2001, 955–1043, at 965–984. In a more directly relevant case, the Wik case (Wik Peoples v. Queensland (1996), HCA 40), examines whether existing leases extinguish native title to land. The decision was that they do not, but that in any “inconsistencies” between a native claim to land and the contemporary lease, the native title is extinguished. This means that for any substantial usage of land under current lease, native title is extinguished. Such legal solutions are not necessarily the correct normative solutions, of course, but the frequent favoring of the status quo is nonetheless noteworthy. 65. Demopoulos and others v. Turkey, ECHR, 2010. 66. There are important forward-looking arguments relevant here, see Chapter 5. 67. This is one of the main justifications for statutes of limitations, see: Tyler Ochoa and Andrew Wistrich, “The Puzzling Purposes of Statutes of Limitation,” Pacific Law Journal, 28(3), 1997, 453–514, at 460–464. 68. O. W. Holmes, The Common Law (Little Brown, 1881), p. 94. 69. R. Epstein, “The Case Against Black Reparations,” Boston University Law Review, 84, 2004, 1177–1192, esp. 1183–1187; Narveson, “Present Payments, Past Wrongs”; M. Rothbard, The Ethics of Liberty (New York University Press, 2002), pp. 58–59. 70. More than one scholar has suggested this argument: see S. Perry, “Libertarianism, Entitlement and Responsibility, Philosophy & Public Affairs, 26(4), 1997, 351–396, esp. 388–389; J. Coleman and A. 168

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notes

71.

72. 73.

74. 75.

76. 77. 78. 79.

80. 81.

Ripstein, “Mischief and Misfortune,” McGill Law Journal, 41, 1995, 91–131, at 96. Accordingly, a policy of assistance to those suffering from misfortune should follow the usual considerations of distributive justice, according to the considerations of the specific theory the reader adopts. See: Rothbard, The Ethics of Liberty, p. 58. This collectivist assumption is more radical than the three “collective responsibility creators” examined above, as in the CRC’s discussion, the basic assumption, or unit of analysis, was individual responsibility, and the CRC were an attempt to justify the creation of collective responsibility even though the basic unit of analysis was the individual. In the “promises” argument, the basic unit of analysis is the collective, a much more radical approach than the CRC’s therefore. Thompson. Taking Responsibility for the Past, ch. 1. Contracts obviously add an important aspect, which is the formal acts that signal, or signify, the seriousness of the commitment. For our needs, this distinction is less important, as our interest is the theoretical importance of promises and contracts – not the legal analysis. Note, however, that the added power of those external-to-the-promise acts that transform a promise to a contract have to rely on something beyond the mere promise, otherwise they add nothing. This “added something” is either the result of a previous agreement (leading to regression) or some other consideration not grounded in consent. I shall go back to this point in the text above. Generally, see: E. Posner, “Do States Have a Moral Obligation to Obey International Law?,” Stanford Law Review, 55 2002/3, 1901–1919. C. Fried, Contract as Promise (Harvard University Press, 1981), pp. 11–13. L. Fuller and W. Perdue, “The Reliance Interest in Contract Damages,” Yale Law Journal, 46(1), 1936, 52–96, at 57. T. Scanlon, “Promises and Contracts,” in The Difficulty of Tolerance (Cambridge University Press, 2003), pp. 234–269, at p. 258. This is not uncontroversial, as damage to the “value of assurance” is both difficult to measure and easily manipulated. Nevertheless, the goal of this section is not to contemplate the arguments for the importance of promises, but to examine their applicability to intergenerational redress. Thompson. Taking Responsibility for the Past, pp. 4–5. Note: I assume that keeping a promise is the right thing to do, and here I am merely asking about the influence of the two additional aspects: the value (importance) of fixing a broken promise; and the consequence of adding the “collective” variable. Some commentators, however, dispute the value of promises as a whole, especially if 169

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82. 83.

84.

85.

86.

87. 88.

89.

auxiliary reasons sufficiently justify not fulfilling a promise. This is an important issue, as there are important reasons to doubt whether fulfilling (not to mention mending) a past promise is the right thing to do. For example, consider the discussion in Chapter 1 concerning the “supersession” idea. However, as I shall argue in this section, that as the “promise” argument fails in historical cases, there is no need to consider further reasons not to fulfill promises. On a recent critique of the importance of promises (and especially about auxiliary reasons not to fulfill), see: N. Southwood and D. Friedrich, “Promises beyond Assurance,” Philosophical Studies, 144, 2009, 261–280, at 268–270. I shall go back to this point at the closing of this section. Miller, National Responsibility and Global Justice, pp. 143–147. This point will be further reinforced if the cost to the person burdened with redressing the broken promise is a substantial portion of his or her assets, rather than a small part of that person’s taxes. Note that the reverse is not necessarily true: the descendant of the victim may live above the average welfare in society X, and his or her welfare situation is not necessarily connected to the broken past promise. This “active involvement” may be described as consent, although, as we are referring to large numbers of individuals, some unusual form of decision making will have to be adopted, complicating the scenario. On the importance of consent to contracts, see: Randy E. Barnett, “A Consent Theory of Contract,” Columbia Law Review, 86(2), 1986, 269–321, at 291–319. Some may argue that there is lack of symmetry between the promisors and the promisees here: as the past wrong limited the options of the promisees, the argumentation above might be somewhat unfair to the promisees, even if valid. The response to this claim is that it confuses the past promisors and the past promisees with current, existing people, in the same collectivist fashion against which I argue above. An additional advantage of this third attempt is that it would not violate the Rawlsian “separateness between persons” assumption. I do not discuss here the further issue of what a proper “fixing” policy would be, as the basic argument from promises is unsound. But the measure of the duty to “fix” is an obvious further obstacle to the “promises” argument. Note that there is an alternative path, which is to ask the following: even if one of the versions discussed above were successful, could we locate reasons for not fulfilling the promise (or for not correcting a promise even if there is a duty to correct promises)? Such reasons may be found (such as changes in circumstances), but as the pro-promise arguments in intergenerational cases examined above fail, we do not need to consider this alternative path. On reasons for not fulfilling 170

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notes promises, see: Richard Craswell, “Contract Law, Default Rules, and the Philosophy of Promising,” Michigan Law Review, 88(3), 1989, 489–529, at 493–494. 90. Note that this conclusion does not entail a position with regard to the problem of “perpetual constitution” as these are two separate issues. The problem of perpetual constitution asks, following Jefferson’s famous letter, whether a constitution enacted at time T1 may legitimately bind future citizens – who did not take part in the legislation process – at time T2. Jefferson famously concluded no, while Madison disagreed, and the debate continues to the present day. There are two main arguments for the legitimacy of perpetual constitutions: first, a pragmatic argument concerning the importance of stability for legal systems and the unpredictable consequences of periodical cancellations of constitutions (even granting the option of periodical renewal); and, second, that constitutions are justified not by the original ratification, but because they meet certain conditions (protection of basic liberties, the ability to change them, etc.) at any given point in time. These two rationale for the legitimacy of perpetual constitutions are highly problematic in the intergenerational justification for redress “promise/contract” argument: first, the intergenerational redress is, in most cases, not the pragmatic option as it introduces large-scale instability with regard to current holdings (see Chapter 5); and, second, there is reasonable disagreement (to say the least) whether intergenerational redress is justified from the perspective of contemporary citizens. If, indeed, the justifications for perpetual constitutions are contemporary, rather than historical (and I think that this is the case), one can support the validity of intergenerational constitutions yet reject intergenerational redress as the reasons supporting the first do not extend to the second. On the problem of perpetual constitutions see: T. Jefferson (letter to J. Madison), September 6, 1789, available at: http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html; J. Madison (letter to T. Jefferson), February 4, 1790, available at: http:// press-pubs.uchicago.edu/founders/documents/v1ch2s24.html. See also V. M. Muniz-Fraticelli, “The Problem of a Perpetual Constitution,” in A. Gosseries and L. H. Meyer (eds), Intergenerational Justice (Oxford University Press, 2009), pp. 377–410 (arguing for perpetual constitutions following reasons that apply to each generation); M. Otsuka, Libertarianism Without Inequality (Clarendon Press, 2003), ch. 7. Otsuka’s argument, which requires a longer summary, argues for perpetual constitutions according to a complex view of tacit consent that is legitimate only if certain background conditions are met: (1) that the background social conditions are that of left libertarianism; (2) that there is a meaningful right of exit for each citizen (formal and substantive); and (3), that each citizen has a wide variety of groups 171

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91.

92. 93.

94. 95. 96. 97.

98. 99. 100. 101. 102. 103. 104. 105.

to choose from. As it is unlikely that these conditions would be met, Otsuka, therefore, de facto rejects perpetual constitutions, and would likewise reject intergenerational redress. But this is a radical move and, as I argue above, one can reject intergenerational redress without also rejecting perpetual constitutions (Otsuka does not discuss intergenerational redress in his book, but this is a logical extension of his view). This is such a classical liberal view, that I doubt if it needs much explication, but in any case, see: Q. Skinner, “Hobbes and the Purely Artificial Person of the State,” in Visions of Politics, vol. 3 (Cambridge University Press, 2001), pp. 177–208, at pp. 184–185. An application to international relations and agreements is: F. R. Teson, A Philosophy of International Law (Westview Press, 1998), ch. 1. Hume, A Treatise of Human Nature, Bk 3, Pt 2, section 5, p. 334. For a contemporary version of Hume’s argument, as applied to international law and international agreements, see: J. L. Goldsmith and E. A. Posner, The Limits of International Law (Oxford University Press, 2005), especially chs 1 and 3. K. Jaspers, The Question of German Guilt (Dial Press, 1947). Jaspers. The Question of German Guilt, pp. 31–32. Jaspers. The Question of German Guilt, p. 32. A. Schaap, “Guilty Subjects and Political Responsibility: Arendt, Jaspers and the Resonance of the ‘German Question’ in Politics of Reconciliation,” Political Studies, 49(4), 2001, 749–766; Fletcher, Romantics at War, pp. 77–85; May, Sharing Responsibility, ch. 8. See also, the exchange of letters between H. Arendt and K. Jaspers, in Hannah Arendt, Karl Jaspers, Correspondence, 1926–1969, L. Kohler et al. (eds) (Harcourt, 1992), letters 43 and 46, pp. 51–56, 60–63. Jaspers. The Question of German Guilt, p. 36. May, Sharing Responsibility, pp. 158–160. May, Sharing Responsibility, pp. 152–155. May, Sharing Responsibility, pp. 160–161. May, Sharing Responsibility, p. 159. Being morally tainted, according to May, is problematic, but not as bad as being morally guilty, see: May, Sharing Responsibility, p. 161. May, Sharing Responsibility, p. 161. I am not sure if May himself would agree with the interpretation given here, but I think it is a fair interpretation of the arguments he puts forward.

Chapter 5 1. I follow here the classic view of corrective justice as eloquently explained by Weinrib in The Idea of Private Law, ch. 4. 172

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notes 2. Compare: T. Brooks, “A Two-Tiered Reparations Theory: A Reply to Wenar,” Journal of Social Philosophy, 39(4), 2008, 666–669, at 667. 3. C. Kutz, “Justice in Reparations: The Cost of Memory and the Value of Talk,” Philosophy & Public Affairs, 32(3), 2004, 277–312, at 279–285 (emphasizing the symbolic importance of reparations for future relations). 4. Spinner Halev, “From Historical to Enduring Injustice,” pp. 574–597. 5. Thompson. Taking Responsibility for the Past, pp. 50–53. 6. Wenar, “Reparations for the Future,” pp. 396–405 (maintaining that arguments for redress fail following non-identity problems, and that redress policies might justify transfer of property from the less successful to the more successful today, and therefore only forwardlooking reasons present reasonable justifications for redress); Teitel, Transitional Justice, ch. 4 (describing various situations in which such forward-looking considerations were important for responding to past wrongs in cases of a transition between regimes). 7. Wenar, “Reparations for the Future,” pp. 396–405; Brooks, “A TwoTiered Reparations Theory: A Reply to Wenar,” pp. 666–669. 8. J. Rawls, Justice as Fairness, A Restatement (Harvard University Press, 2001), pp. 61–66. 9. That is, to material redress that would follow a reduced level of welfare resulting from the past wrong, to be distinct from restitution, as explained in Chapter 3. 10. An additional sufficiency condition can be suggested here, both with regard to the welfare level of the claimant and that of the would-be payer. 11. It may be the case that the restitution claim was eroded as the original entitlement to this property has faded away (as discussed in Chapter 3). In such cases the current owner is under no duty to return anything – but not because the restitution claim adversely influenced her or his financial situation. 12. This is why the double decoupling problem was so central to our examination of the compensation scenario above as, if the double decoupling exists, it is highly doubtful whether there is a justification for corrective justice claims in the first place, and therefore the compensation scenario is more sensitive to distributive justice-related consequences of corrective justice-related claims. 13. C. Offe, Varieties of Transition (MIT Press, 1996), ch. 5; E. A. Posner and A. Vermeule, “Transitional Justice as Ordinary Justice,” Harvard Law Review, 117(3), 2004, 761–825, especially from p. 799 (presenting several such arguments without endorsing them); B. Ackerman, The Future of Liberal Revolution (Yale University Press, 1994), ch. 5. 14. This is a basic notion of corrective justice, see: Weinrib. The Idea of 173

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15.

16.

17.

18.

19. 20. 21.

Private Law, ch. 4; B. Zipursky, “Rights, Wrongs and Recourse in the Law of Torts,” Vanderbilt Law Review, 51(1), 1998, 1–100, esp. p. 16. Narveson, “Present Payments, Past Wrongs”; Rothbard, The Ethics of Liberty, pp. 51—67; Nozick, Anarchy State and Utopia, p. 169 – discussing why taxation is on a par with forced labor, and the implications for a non-wrongdoer compensating a victim of another person’s wrongdoing are obvious and would contradict Nozick’s own idea of rectification, compare with Nozick, Anarchy, State, and Utopia, pp. 150–153. I doubt whether Nozick’s ideas here are consistent, and I shall leave this point for another occasion, but see: N. Perez, “Libertarian Rectification Theories: A Critical Examination”, on file with the author. A similar calculation may be taken into account following reputational considerations. Note that in both cases it is “allowed” rather than “mandatory.” There are cases in which claimants waive their demands for various reasons; see, for example, the case of Holocaust survivors who refuse to receive reparations from Germany. One such case is described in: R. Bondy, Whole Fractures (Gvanim, 1997, in Hebrew), pp. 148–149. Bondy did receive payments for unpaid slave labor during the Second World War, to be distinct from reparations: p. 149. The literature on the unintended disturbing consequences of governmental policies involving monetary incentives is wide. Three noteworthy examples are: Thomas Schelling, Choice and Consequence (Harvard University Press, 1985); Albert O. Hirschman, The Rhetoric of Reaction: Perversity, Futility, Jeopardy (Belknap Press of Harvard University Press, 1991); Cass R. Sunstein, “Political Equality and Unintended Consequences,” Columbia Law Review, 94(4), 1994, 1390–1414. Note that while Schelling is pessimistic with regard to the prospects of planning a governmental policy that will successfully avoid counterproductive unintended consequences (in many cases), Hirschman and Sunstein are careful not to argue that such bad unintended consequences will always follow. However, even if only as a warning against such forward-looking considerations, these objections put the burden on those advocating such policies to illustrate a policy that avoids this problematic structure of incentives. Wenar, “Reparations for the Future,” p. 398; Weiner, Sins of The Parents, p. 141. D. Golash, The Case Against Punishment (New York University Press, 2005), pp. 24–29. Hart, “Prolegomenon to the Principle of Punishment,” in Punishment and Responsibility, pp. 11–12. 174

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notes 22. R. A. Duff, Punishment, Communication and Community (Oxford University Press, 2001), p. 8 23. Duff, Punishment, Communication and Community, pp. 82–85; Scanlon, “Punishment and the Rule of Law,” in The Difficulty of Tolerance, pp. 221, 225. 24. Rawls, A Theory of Justice, p. 211. 25. R. Epstein, Simple Rules for a Complex World (Harvard University Press, 1995), pp. 53–71; Rothbard, The Ethics of Liberty, pp. 51–67. 26. Offe Varieties of Transition, ch. 6; Teitel, Transitional Justice, ch. 4; J. Elster, Closing the Books. Transitional Justice in Historical Perspective (Cambridge University Press, 2004), pp. 168–187. 27. This short comment should suffice in the context of our subject matter, but what lies behind it is a further debate between what may be described as “fairness” or “justice” theorists and law and economic theorists. On this debate see: R. Dworkin, “Is Wealth a Value,” The Journal of Legal Studies, 9(2), 1980, 191–226; and R. Dworkin, “Why Efficiency,” Hofstra Law Review 8, 1979/80, 563–590. 28. Some examples include, the “10 points” plan in Australia: C. S. Lopez, “Reformulating Native Title in Mabo’s Wake: Aboriginal Sovereignty and Reconciliation in Post Centenary Australia,” Tulsa Journal of Comparative & International Law 11, 2003/4, 21–111; Offe, Varieties of Transition, pp. 124–130, examining several “efficiency” cases and considerations in eastern Europe after 1989. 29. A. Sen, On Economic Inequality (Clarendon Press, [1972] 1997), pp. 6–7. 30. Or avoiding the movement of property from a “usable” status to a “non-usable” status. 31. Note that “market usability” is indifferent to the question of legitimate ownership, see the text above. 32. This may be a second-order definition, actually constituting a subaspect of some more general definition of efficiency. Due to the focus of this book, I shall not explore this option here. 33. I have made a meticulous attempt to describe Epstein’s views in an accurate fashion, but there is no guarantee that Epstein would have agreed to this presentation. 34. Epstein does not define efficiency in terms of Pareto optimality. Rather he approaches efficiency more broadly as a situation in which economic functionality is resumed, as explained above. 35. Epstein, Simple Rules for a Complex World, p. 63. 36. Epstein, Simple Rules for a Complex World, p. 64. 37. Epstein, Simple Rules for a Complex World, p. 14. 38. If current owners have a justified claim to their property, any restitution claim would (obviously) be nullified, as there would be no unjust enrichment; setback compensation will be nullified too, as who would 175

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39. 40. 41.

42. 43.

44. 45.

46.

47.

48.

49.

pay is unclear. The wrongdoers have all died and current individuals, according to the SL approach, all have a justified claim to their property. Nozick, Anarchy State and Utopia, p. 151. Epstein, Simple Rules for a Complex World, pp. 59–64. Note that a related question is what event triggers the start of time being counted? Is it the original wrong, the date on which the current holder bought this property, the date on which the current holder gained possession regardless of the way in which such possession came to be? It seems that for Epstein, the latter is the correct answer: regardless of the way in which such ownership came to be. Epstein, Simple Rules for a Complex World, p. 32. Epstein views liberty deprivation as an interference caused usually, but not exclusively, by a government: Simple Rules for a Complex World, p. 34. Epstein, Simple Rules for a Complex World, pp. 34–35. Epstein is not completely consistent in his arguments: while at one point in Simple Rules for a Complex World (p. 30) he identifies himself as a consequentialist, his discussion of the merits of self-ownership has deontological aspects (see p. 55). For our needs, it is only important to note that Epstein allows substantial room for aggregative considerations and policies. As all the original wrongdoers and victims have died, disputes at present most likely regard property, not other issues such as punishment. Note the complex relations between Epstein’s SL rule and Pareto optimality: as any change in the length of the SL rule (i.e., the number of years indicated by the SL rule, following which ownership becomes legitimate) will bring about a change of ownership between two potential claimants to a given property, it is obvious that any suggested SL rule will bring about claimants arguing that their situation worsened following the application of the SL rule. As this is the situation, Epstein’s suggestion is unlikely to be Pareto optimal, as it is implausible that any decision to enact a new status quo (i.e., new ownership situation) will not make at least one person worse off. So as the status quo may be Pareto optimal (yet potentially unjust), the SL rule is unlikely to be Pareto optimal. Epstein, Simple Rules for a Complex World, p. 64. See also his application of the notion of statutes of limitations in: Epstein, “The Case against Black Reparations,” pp. 1183–1187. Epstein probably relies here, to a large extent, on the literature of law and economics, which is outside of our subject matter. I simply remark, briefly, that the discussion on the rights of the descendants of deceased victims of past wrongs differs somewhat from “normal” 176

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notes

50.

51. 52.

53.

54. 55. 56. 57. 58. 59.

60. 61.

disputes between “fairness” and “efficiency” theorists. Theorists from the law and economics “school” usually rely on current allocation of property as a starting point to their arguments and, from this baseline of ownership, raise objections to “fairness” theorists. In our subject matter, however, this exact baseline is the disputed point. See, for example, D. Friedman, Law’s Order (Princeton University Press, 2000), pp. 119–122; and R. D. Cooter and T. Ulen, Law and Economics, 6th edn (Prentice Hall, 2011), chs 4 and 5. It is an intriguing question whether Epstein’s thought on this issue has changed and evolved, but to answer it I shall have to compare his various books and articles, a task I cannot undertake here. Charles Dickens, Bleak House (Public Domain Books, Kindle edn, [1853] 2009), pp. 149–158. This point may become more complex if the wrong is committed without the knowledge of the victim (e.g., if the property stolen is not in the immediate vicinity of the victim) or in cases in which the victim is prevented from petitioning to a court of law. In such cases, when the “count” should begin is controversial; should the focus be on the moment of (illegitimate) acquisition or the moment in which the victim had access to adequate information and legal remedy? This depends on the goal of the rule: to protect the victim or to facilitate economic activity? Epstein will probably emphasize the latter. On the issue of accrual, see: S. Malveaux, “Statutes of Limitations: A Policy Analysis in the Context of Reparations Litigations,” George Washington Law Review, 68, 2005/6, 68–122, at 86–92. T. Scanlon, “Libertarianism and Liberty,” The Boston Review, online edition, October 19, 2011, accessible at: http://www.bostonreview. net/BR36.5/ndf_t_m_scanlon_libertarianism_liberty.php. Epstein, Simple Rules for a Complex World, p. 64. Epstein, Simple Rules for a Complex World, pp. 37–42. Quoted in: Hein Marais, South Africa Pushed to the Limits. The Political Economy of Change (Double Storey Publishers, 2011), p. 98. See especially, R. Epstein, Skepticism and Freedom: a Modern Case for Classical Liberalism (University of Chicago Press, 2003). On Weber’s “ideal Types” see his “Objectivity in Social Science and Social Policy,” in The Methodology of the Social Sciences, p. 90. There were several legal issues, including whether Adele herself requested that the paintings be given to Austria, and the retroactive status of the relevant American laws that enabled an American citizen (Maria Altmann) to sue the Austrian government in an American court. Quoted in: W. Glaberson, “For Betrayal by Swiss Bank and Nazis, $21 Million,” New York Times, April 15, 2005. M. Bazyler, Holocaust Justice: The Battle for Restitution in America’s Courts (New York University Press, 2005), pp. 241–242. 177

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freedom from past injustices 62. The paintings were allegedly donated to the museum by Ferdinand, but the date of the donation was during the war, in 1941, meaning that the “donation” was given by someone else. That person was Erich Fuhrer, the Nazi liquidator of Ferdinand’s estate, and the donation was accompanied by a letter signed “Heil Hitler”! Ferdinand was in exile in Switzerland at that point. This fact was well known to the museum, but kept hidden. Bazyler, Holocaust Justice: The Battle for Restitution in America’s Courts, p. 243. 63. The main details of the cases may be found at: D. Wallace, Jr., “An Introductory Note to Certified Award to Claimant Maria Altmann,” 44 ILM, 1304 (from which the above quote is taken); Republic of Austria et al. v. Altmann, 541 U.S. 677 (2004); Schoenberg, “Whose Art Is It Anyway?,” in Bazyler and Alford (eds), Holocaust Restitution, pp. 288–297; Bazyler, Holocaust Justice: The Battle for Restitution in America’s Courts, ch. 5; and Claims Resolution Tribunal, Case No. CV 96-4849 (on file with the author). 64. Note that while the direct victims (Ferdinand and Adele) had passed away, it may be argued that some of the wrongdoers were still alive in 2006, so are other Holocaust survivors, so even though the direct victims and probably the direct wrongdoers have passed away, it is a question as to whether we can classify this case as a pure “historical wrong.” A possible response is that the next generation (the descendants of Maria Altmann, who indeed had children) are not vulnerable to the non-identity problem as well, and, at least for the next generation, the arguments in the text above with regard to further relevant variables are as valid. This opens up a larger issue, as obviously the wrong done to Ferdinand is not a “regular” wrong, such as theft or robbery, but a wrong done to him because he belonged to a certain collective – the Jewish people, yet my analysis of the redress policy is based on individual interests to restitution. The response to this observation is that in intergenerational cases (although not necessarily in contemporary cases as discussed in Chapter 4), this structure is probably the justified response in most cases, following the argumentation of Chapters 2–4. 65. As discussed above in this chapter, restitution claims are not sensitive to the redistributive consequences of the restitution, so this consideration would not be discussed here. 66. Bazyler, Holocaust Justice: The Battle for Restitution in America’s Courts, ch. 1. Conclusion 1. I. Berlin, The Hedgehog and the Fox: An Essay on Tolstoy’s View of History (Ivan R. Dee, 1993). 178

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notes 2. See also Rawls’ discussion of “reasonable pluralism” in: J. Rawls, Political Liberalism (Columbia University Press, 1993), p. xviii. 3. Ernest Renan, “What is a Nation,” in S. Woolf (ed.), Nationalism in Europe 1815 to the Present (Routledge, 1996), pp. 48–61, at p. 50. 4. Hume, A Treatise of Human Nature, Bk 3, Pt 2, section 8, pp. 347, 350. 5. Plato, The Republic, trans. A. Bloom (Basic Books, 1968), 414b– 415d, articulating the famous idea of “noble lies”; J-J. Rousseau, “Considerations on the Government of Poland,” in The Social Contract and other Later Political Writings, ed. and trans. V. Gourevitch (Cambridge University Press, 1997), pp. 181–182, 189–193. 6. E. Burke, Reflections on the Revolution in France, ed. J. C. D. Clark (Stanford University Press, 2001), p. 241. 7. As convincingly argued by D. Herzog, “Puzzling Through Burke,” Political Theory, 19(3), 1991, 336–363. 8. Nietzsche famously discussed the usefulness of history for life, but his style of writing and his insights are not easily integrated into the style of writing of the current work, so I will simply add that the idea of rectification would have been, as far as I can understand his essay, foreign to his approach. See: F. Nietzsche, On the Advantage and Disadvantage of History for Life, trans. P. Preuss (Hackett, 1980). 9. J. Rotondi and N. Eisikovits, “Forgetting After War: A Qualified Defense,” unpublished paper, on file with the author. 10. This “open” approach fits easily with considerations of the private sphere, but it is somewhat more challenging as an approach to ceremonies, public holidays, public education, etc. Nevertheless, I would follow the “open” approach in each of these “public” fields as well, regardless of what some theorists of “motivation” and “civil religion” may argue. At most, if such symbols are required, they can be devised from, and focus on, civic symbols and content or by integrating symbols from different communities. On the civic option see Brian Barry: “Statism and Nationalism: A Cosmopolitan Critique,” in I. Shapiro and L. Brilmayer (eds), Global Justice (New York University Press, 1999), pp. 12–67. On the option involving integration of the symbols of various communities in one state, see: Miller Citizenship and National Identity, pp. 125–142. 11. Note that we are discussing past wrongs here – not a regular timing problem. The temporal decision in past wrongs should pass a strict justificatory bar, as it aims to override regular statutes of limitations, double decoupling problems, and so on. 12. In Chapter 1, I suggested a threshold criterion – the availability of adequate information with regard to past wrongs – as a way to begin the conversation regarding past wrongs. However, while this criterion helpfully classifies many cases, it does not provide further criteria for choosing among cases that pass this threshold. 179

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freedom from past injustices 13. P. Twambley, “Mercy and Forgiveness,” Analysis, 36(2), 1976, 84–90, at 86. 14. L. Allais, “Wiping the Slate Clean: The Heart of Forgiveness,” Philosophy and Public Affairs, 36(1), 2008, 33–68, at 62. 15. I shall not discuss here whether any of those reasons do justify forgiveness or mercy, as we shall see, these categories are irrelevant to the context of intergenerational redress, and this complex discussion is therefore not necessary. 16. L. Wenar, “Rights,” Stanford Encyclopedia of Philosophy, section 2.1.1, available online at: http://plato.stanford.edu/entries/rights/#2.1; see also W. N. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal, 23, 1913/14), 16–59, at 32. 17. Wenar, “Rights,” Stanford Encyclopedia of Philosophy, section 2.1.4. See also: Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” p. 55. 18. We can introduce some sort of a baseline condition, and only if the non-egalitarian results of the compensation bring the person under a duty to compensate below this baseline level will compensation become sensitive to the non-egalitarian consequences; and, vice versa, the entitlement of the recipient if she or he is above a certain threshold; see Chapter 3. 19. Aristotle, The Nicomachean Ethics, trans. D. P. Chase (Everyman Library, 1940), Bk 5, 1132b–1133a.

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Index

acceptance, and consent, 75–76 African National Congress, 117 aggregation of individual responsibility, 62 wrongdoers and non-wrongdoers, 105, 127 alternative realities, 45 Altmann, Maria, artwork case, 119–124, 126, 177 (n59), 178 (nn62, 64) apologies, 12–13 Apostolides, Meletis, 83–87 Aristotle, 136 Arneson, R., 78 assets crucial, 22 unpaid labor as, 154 (n8) Australia, 3 indigenous people (Aborigines), 73–74, 158 (n45), 165 (n33) Wik case, 164 (n32), 168 (n64 ) avoidance of benefit, 77 of participation, 66–67, 68–69 benefit (CRC), 70–80 “diffused” to collective, 71, 73, 76–77, 81, 97, 165–166 (nn38, 45), 166 (n55, 56) and fair play argument, 75–80 and good faith, 164 (n30) identifiable, 74 and intergenerational collective responsibility, 72–74, 97 passive receipt of, 74, 76–77, 165 (n34) significance (size of), 74, 78–79 and unjust enrichment, 71–72 Berlin, Isaiah, fox and hedgehog thesis, 125 Bloch-Bauer, Adele, bequest, 120 Bloch-Bauer, Ferdinand, will, 120 Boxill, B., 29, 40–41

Burke, Edmund on history, 128–129 on society, 14 children existence at time of wrong, 33–35 normal connection with parents, 152 (n23) right to support of parents, 150 (n16), 155–156 (n22) as special case of third parties, 46–47 Christie, G., 78–79 citizenship and collective responsibility, 67, 161–162 (n17) and duty of redress, 79–80 as non-voluntary, 66, 161–162 (n17) and promises made by state, 92–93 clean slate, right to, 131–137 Cohen, A., 29, 40–41, 150 (n16) collective responsibility, 3 avoidance of, 162 (n20) and citizenship, 66–67, 161–162 (n17) compared with individual responsibility, 62–63, 169 (n73) corporations and, 160 (n7) definitions, 60–61 intergenerational, 60, 72–74, 85–86 and moral duty, 163 (n24) and payment of redress, 80–87 see also employee; taxpayer collective responsibility creators (CRC), 61–80 benefit, 70–80 identification, 63–65 participation, 65–70 collectivities, 60–98, 128 defined, 60, 160 (n8) diffused benefits, 71 identification with, 63–64 intergenerational redress to improve relations, 106–108

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freedom from past injustices collectivities (cont.) lower current welfare of, 82–83 possibility of backlash against reparations, 107 and promises, 89–91 compensation definitions, 13, 42 and economic position of nonwrongdoers, 102 entitlement to, 53, 55–56 non-egalitarian consequences of, 135–136 overall (Nozickian), 43 payment of costs of, 53–54 for setbacks in welfare, 43, 44–45, 55–56 see also monetary compensation; nonmaterial compensation consent, principle of, 75–76 continuing injustice argument (CIA), 29–30, 40–41 and compensation for setbacks in welfare, 44–45 counterfactual problem, 48, 57–58 critique of, 49–58 failure to compensate as, 46 and “family-line” argument, 47, 155–156 (n22) and non-identity, 47–48 presentation of, 46–49 contracts, 169 (n75); see also promises and contracts corporations and collective responsibility, 160 (n7) diffused benefit to, 166–167 (n56) see also employees corrective justice, 38, 55, 105, 140 (n6) and distributive justice, 86, 118–119, 136 no duty of (by descendants), 134, 135 costs and distributive justice, 86 imposed on descendants of wrongdoers, 17 imposed on individuals born after wrong, 3 imposed on uninvolved third parties, 17, 105–107 obligation to bear, 78 and statute of limitations, 112, 113–114, 116–117 counterfactual problem, 48 of hypothetical increase in welfare, 57–58

criminal guilt, 94 cultural assumptions, and identification with collective, 63–64 cultural defense, in criminal law, 154 (n34) Cyprus, Northern, 3 Orams case, 83–87 Demopoulos and others v. Turkey, 84 descendants and non-identity problem, 26 and property, 19–20 see also children descendants, of original wrongdoer claims to stable continuation of life, 49–53 responsibility of, 53, 158 (n50) and right to clean slate, 133 status of, 41 welfare situation of, 55 descendants, of victim and collective payment of compensation, 81 current level of welfare of, 41, 54–55, 81, 82–83, 102, 158–159 (n51) and entitlement to compensation, 53, 102, 152–153 (n24) identifiable, 155 (n19) interests of, 113 responsibility of, 41, 55–56 strength of claims to material redress, 118–119 deterrence, as forward-looking consideration, 108–109 Dickens, Charles, Bleak House, 114 distributive justice, 83, 102–103, 119 and cost-sharing, 86 and right to clean slate, 135 double decoupling, 45, 48, 54, 126, 173 (n12) Dworkin, R., on collectivities, 60 economics, effect of restitution, 103, 109 efficiency as forward-looking consideration, 109–119 not trump argument, 117–118 emotion and collective responsibility, 64–65 and redress, 134 employees and collective responsibility, 63 indirect participation, 68–69, 163 (nn27, 28) and intergenerational redress, 70

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index enforcement, 165 (n37) entitlement, to property, 146 (n43) Epstein, Richard, 176 (n45) on efficiency, 111–112 statute of limitations, 112–117, 176 (n47) existence, causally connected to wrong, 28–29, 30, 148–149 (nn5, 7) “fair play” argument, 74 applied to intergenerational redress, 75–80 failure of, 79–80 “family-line” argument, 47, 155–156 (n22) Fichte, J. G., 37 forgiveness, as clean slate, 131–133 forward-looking considerations, 99–124, 173 (n6) deterrence, 108–109 and efficiency, 109–119 empirical arguments, 103 general evaluation, 100–106 and individual rights, 105 and intercommunal relations, 106–108 and payment of material redress, 105–106 promises, 88, 92, 93 Germany and guilt about Holocaust, 93–94 payment of compensation to Holocaust survivors, 53–54 good faith, 164 (n30), 168 (n64) good will, and forgiveness and mercy, 132 group identity, 31–32 centrality of, to members, 37–38 connection of current members to, 36–37 cultural, 32, 36–37, 151–152 (n22) genetic, 32 and mental association, 83 national, 153 (n29) guilt four concepts of, 94 metaphysical, 93–97 and redress, 96 sources of, 95 harm, defined, 140 (n5) Hart, H. L. A. and consent, 75 on responsibility, 14–15

heirs, as non-descendants, 156 (nn26, 27) Herder, J. G., 37 historical injustices choice of, for redress, 130–131 and continuing injustice argument, 44–45 and current harm to group, 28 defined, 2, 8–10, 42 identifiable consequences, 48–49 and ongoing consequences, 100 and property rights, 18–19 typology of remedies, 10–13 historical memory, 128–131 Hohfeld, W. N. immunities, 134 privileges or liberties, 133–134 Holmes, O. W., on loss from accident, 85 Holocaust German guilt about, 93–94 payment of costs of, 53–54 Honoré, A. M., on ownership, 20 Hume, David on past, 128 on promises, 93 identity, and intergenerational groups, 24, 27–29 immunity, concept of, 134 incentive structure counterproductive, 107–108 in intercommunal relations, 107 incentives, perverse, 112, 116–117, 131, 174 (n18) individual responsibility, 14–18 aggregation of, 62 individual rights, and forward-looking considerations, 105 individuals and promises, 87–88 and promises made by states, 89 as separate persons, 2 see also persons information about benefit, 74 and CIA, 41 to establish historical injustice, 8–9, 119, 122 information-related problems, 56–58, 126 for restitution, 56–57 intergenerational groups, identification with, 24, 27–29

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freedom from past injustices monetary compensation, 11, 141 (n7) justification for, 40 moral duty, and collective responsibility, 163 (n24) moral guilt, 94, 96 moral intuition, and compensation, 42 moral luck, 143 (n26) moral reproach, for broken promises, 88

intergenerational redress and benefit/fair play argument, 75–80 famous objections to, 43–46 and forward-looking considerations, 99–124, 173 (n6) and identification, 65, 119 justified (Maria Altmann case), 119–124, 178 (n64) no single argument against, 125–128 and participation, 69–70 and right to clean slate, 131–137 to improve intercommunal relations, 106–108 intrinsic value, of promises and contracts, 88 Israel/Palestine, 3 Jaspers, Karl, metaphysical guilt, 93–97 Judaism, and property rights, 18–19 Klimt, Gustav, paintings, 120 law(s) obedience to, 75 unjust, 109 legal system, and broken contracts, 92 Lewis, H. D., 61 libertarianism and ownership, 148 (n51) and rectification of injustices, 146–147 (n45) liberty, effect of statute of limitations on, 112, 114–115 Locke, John, and property rights, 19, 21, 121–122, 147–148 (nn48, 50), 157 (n41) Mabo decision, 50, 156–157 (nn30, 31), 164 (n32) mandatory (payment of taxes), defined, 68 Mandela, Nelson, 117 Maria Altmann case, 119–124, 126 material redress, 13–14 May, Larry and metaphysical guilt, 95–97 on participation, 161 (n16) memorials, 12, 142 (n16) memory see historical memory “mercy”, as clean slate, 131–133 metaphysical guilt (Jaspers), 93–97 and moral guilt, 96 motivational aspect, 95 Miller, David, on promises, 89 misfortune, and loss, 85–86

non-identity problem, 24–36 CIA and, 47–48 and compensation, 151 (n17) defined, 24, 26 and identity argument, 30–32 other critiques, 36–38, 152–153 (n24) and timing argument, 32–36 see also descendants non-material compensation, 12–13 apologies, 12–13 memorials, 12, 142 (n16) non-wrongdoers aggregated with wrongdoers, 105 and cost of redress, 108–109 economic position of, 102 Nozick, R. definition of compensation, 13, 42–43, 146 (n45) and Epstein’s statute of limitations, 112 property rights, 146 (n43) and social cooperation, 75 Orams case (Linda and David Orams case), 83–87 Ostrom, E. and Schlager, E., concept of property, 145 (n34) Otsuka, M., 171–172 (n90) ownership, 20, 121–122, 146 (n43) Pareto efficiency (optimality), 110–111, 176 (n47) participation, in redressing wrongs, 67 participation, indirect and avoidance, 66–67, 68–69 as collective responsibility creator, 65–70 employee example, 68–69 and intergenerational redress, 69–70 taxpayer example, 66–68 past, glorious and inglorious, 129 perpetual constitution, 171–172 (n90) “person”, and “identity”, 37–38 persons, separation of, 1–2, 16, 61, 105, 127

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index Plato, 128, 129 political guilt, 94 pride, and identification with collective, 64 promises and contracts, 87–93, 169 (n75) and collectivities (states), 89–91, 169–170 (n81) connections between parties, 90–91, 170 (n86) external involvement, 91 forward-looking concerns, 88, 92 intrinsic value of, 88 and moral reproach, 88 obligation to correct breaks, 91–92, 170–171 (nn87, 88) and perpetual constitution, 171–172 (n90) value of assurance, 90–91, 168 (n79) value as social institution, 90 property economic effects of disputes over, 109–110, 111, 117 lawfully held by descendants of wrongdoer, 57–58 return of, 42–43 property rights, 3, 18–21 and claims of ownership, 121–122 defined, 145–146 (n43) and efficiency, 111, 116, 117 fading over time, 52, 123, 135, 147 (n46) limits on, 21 and Orams case (northern Cyprus), 84–87 and supersession thesis, 21–23, 50–51, 127, 147 (n47) public goods, as benefits, 78 punishment deterrence theories of, 108–109 impossible for historical wrongs, 10, 11 Raikka, J., 162 (n20) Rawls, John and consent, 75 and individual responsibility, 16, 144 (n34) and separation of persons, 16, 61 to receive, as passive, 75–76 redress of historical injustices and easing of guilt, 96 as fashionable, 3 “fox” argument against, 125–128 justification, 9–10

Maria Altmann case, 119–124, 177 (n59), 178 (nn62, 64) see also intergenerational redress; material redress; non-material compensation religion, as source of guilt, 95 remedies, 10–13 monetary compensation, 11, 141 (n7) non-material compensation, 12–13 restitution, 11–12 Renan, E., on historical memory, 128, 129 resources, ability to pass on to children, 34–35, 47 response, adequate, 17–18 responsibility, 143 (n25), 159 (n2) and adequate response, 17–18 vicarious, 158 (n48) and voluntariness, 14–17 see also collective responsibility restitution, 11–12, 42–43 in Altmann case, 123 and assistance from state, 102–103 and claims of descendants of wrongdoer, 49–53 conditions for, 119–124, 125 and economic situation of current holder, 102 and link between wrongdoer and victim, 104–105 and state policy, 104 right to clean slate, 131–137 and immunity, 134 mercy and forgiveness, 131–133 and privileges or liberties, 133–134 Rousseau, J.-J., 128, 129 Scanlon, T., on efficiency, 114 setbacks in welfare and alternative realities, 45 and collective responsibility, 80–81 compensation for, 43, 55–56 and double decoupling, 45 evaluation of, 49, 126–127 and forward-looking considerations, 102 information-related problems and, 57–58 and level of welfare of claimants, 55, 82–83 shame, and identification with collective, 64 Sher, G., 29, 40–41, 150 (n16) Simmons, John, on fair play principle, 75–76

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freedom from past injustices social cooperation, 75 associated cost of, 77 social relations, effect of reparations on, 103, 107 society and forward-looking considerations, 105 and ongoing consequences of past wrongs, 100–101 as open space, 77 state and individual responsibility, 15–16 and interpretation of history, 128–131 and level of welfare, 56 payment of compensation, 53–54 and principle of consent, 75–76, 92–93 promises made by, 87, 92–93 statute of limitations (SL) (Epstein), 112–117 and accrual, 139 (n2) and administrative costs, 112, 113–114, 116–117 and liberty deprivations, 112, 114–115 and Pareto optimality, 176 (n47) and (perverse) incentives, 112, 116–117 timing, 112, 115 supersession thesis, 21–23, 50–51, 121 limitations, 22–23, 51 and non-owners, 122 Swiss banks and Altmann case, 120, 121, 122 and “dormant” accounts of Holocaust victims, 57 symbolism, national, 129, 179 (n10) taxpayers, 161 (n13) and collective responsibility, 63, 66–67 indirect participation, 65–68 and intergenerational redress, 69–70 temporal baseline, for redress for historic wrongs, 130–131 third parties children as special case, 46–47 role in situation of victim’s descendants, 41, 56 Thompson, J., on contracts, 89 time and baseline for historic wrongs, 130–131 and property rights, 21–22

timing argument, and non-identity, 25, 32–36, 150 (n16) tort law, 81 Turkey, invasion of Cyprus (1974), 83 United States of America, 3 African Americans, 73, 167 (n58) and Sioux nation, 141–142 (n13) unjust enrichment collective, 71–72, 165–166 (n45) and good faith, 164 (n30), 168 (n64) identification of beneficiaries, 72 and restitution, 12, 50–51 and right to clean slate, 134–135 significance (size of), 74, 78–79 utilitarianism, 144 (nn33, 34) value, remaining where it currently resides, 84, 85 van den Beld, T., 151 (n20) Vienna, art gallery, 120, 121, 122 voluntariness in collective responsibility, 62, 66 and inaction, 143 (n28) and responsibility, 14–17 Waldron, J. concept of property, 145 (n43) supersession thesis, 21, 50–51 Warren, Robert Penn, 45, 140 (n3) Weinrib, Ernest, 140 (n6) welfare, defined, 154 (n9); see also setbacks in welfare; welfare levels welfare levels and distributive justice, 83 and intervention of third party, 56 irresponsible way of life, 56 and right to restitution of property, 55 of victim’s descendants, 41, 54–55, 81, 82–83, 102, 158–159 (n51) Wik case, 164 (n32), 168 (n64) Williams, Bernard, on responsibility, 14–15 wrong, new, continuing unlawful holding of property as, 70, 71 wrong, original, magnitude of, 31–32 wrongdoer(s) link with victim(s), 104–105 and passage of time, 151 (n20) special debt to victim(s), 136, 140 (n6)

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