Academic journal article The University of Memphis Law Review

Reparations for Slavery and Justice

Academic journal article The University of Memphis Law Review

Reparations for Slavery and Justice

Article excerpt

I. INTRODUCTION

On some accounts, the amount of reparations owed for slavery is a staggering sum, with some estimates ranging from $2.5 trillion1 to $8.3 trillion.2 One problem with the claim to reparations for slavery relates to the uncertainty with regard to whom compensation is owed and the amount owed. I argue that this uncertainty need not be fatal if we view compensatory justice as allowing certain moral analogues to market-share liability. I then argue that even if these epistemic objections are not fatal to the case for reparations, the case probably fails given the difficulty in finding any current party who has the duty to pay.

The first part of this essay consists of an argument that slavery did not unjustly harm the current descendants of slaves. In the second part I argue that this might still allow an inheritance-based justification of reparations whereby a slave's descendants inherit his right to compensation. In the third part, I argue that such a right is capable of persisting over time, but problems exist in identifying the party that has the duty to pay the reparations.

II. THE DESCENDANTS OF SLAVES WERE NOT UNJUSTLY HARMED BY SLAVERY

A. Claims of Compensatory Justice Require an Unjust Harm

Compensatory justice aims at eliminating unjust harms or gains.3 It is concerned with placing the harmed party in qualitatively the same position she would have been in had the unjust harm not occurred.4 Given this assumption, it involves a comparison between the well-being of a person in the world in which the unjust harm occurred and the world in which it did not occur. In making this determination, the actual world in which the injured party lives is compared to a relevantly similar world where the unjust harm did not occur. This comparison thus requires that the injured party exist in the relevantly similar possible world where the unjust harm did not occur.

In addition, only unjust harm constitutes a right to a justice-based claim to compensation. A harm is a mere setback to an interest, and there are many ways in which a person might set back another's interest without infringing on the latter's right.5 For example, attracting a woman's fiance may harm the heartbroken woman, but such an act hardly gives rise to a claim of compensation. Compensatory justice is part of a more general system of rights, and it involves the just response to certain right infringements. The background idea is that property rights protect a person's autonomy (or perhaps interests) and set the boundaries of a person's rights.6 Contractual rights involve the permissible modification of these boundaries,7 and compensatory justice rights involve the right to rectification that is created by boundary trespasses.8

A claim is often held to be a two-party relation whereby one party (the duty holder) has a duty to the second (a claim holder).9 However, some theorists challenge the notion that a person can have a claim to compensation only if it is held against another individual or group of individuals.10 I shall assume this notion is correct and that a claim to compensation thus requires the existence of an appropriate party against whom such a claim can be made. For now, let us leave aside who the duty holder is in the context of reparations.

B. Slavery Did Not Harm the Descendants of Slaves

Obviously, slavery unjustly harmed enslaved persons. However, slavery did not harm their descendants because they do not exist in the relevant possible world (or worlds).11 This can be seen if we make certain assumptions. First, the relevant possible world involves roughly the same distribution of geographical features, technologies, resources, persons, and cultural forces that characterized the past in the actual world. Second, the identity of a person's parents and genetic makeup are essential features of her. Third, slavery had large-scale effects on reproductive timing and mate selection of slaves and their immediate descendants. …

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