Saturday, April 24, 2010

Superseding reparations

This slightly mad Henry Louis Gates op-ed (apparent thesis: the history of slavery has responsibility that's widely distributed and hard to disentangle across North America, Europe, and west Africa, so thank goodness we now have a President whose half-east African, half-white ancestry gives him magical historical-responsibility-apportioning powers) made me, possibly, realize something.

Gates hints that, if reparations are owed to the descendants of slaves, they might be owed in part by [some] west Africans whose ancestors were involved in the slave trade.

I think this is finally a case that lets my moral intuition click into the patterns set by Jeremy Waldron's famously controversial article Superseding Historic Injustice. Waldron argues that forward-looking demands of distributive justice and the welfare of the poor trump backward-looking rectification. There's much more to it, but that's one of the key moral ideas. As applied to the indigenous land rights cases that he talks about, I've never found this even slightly compelling. But: I can't imagine the fact pattern or historical evidence that would make me think taxing west Africans in 2010 to make payments to African-Americans in 2010, when the latter have a standard of living between 20 and 50 times higher than the former. Liberia has a per-capita income of just over a dollar a day. Extracting even millions, to say nothing of tens or hundreds of millions, of dollars (and in dollars, that is, exhausting-and-then-some the foreign exchange reserve capacity of west African states) from people many of whom are among the poorest in the world just can't be what justice demands.

I could just fall back on the following, which is part of how I think about reparation cases anyways: the United States government and the government of the several states within it are historically and institutionally continuous with those that perpetrated slavery. There's been no repudiation of the national debt in the US since that time. So those governments are corporate actors that could still be liable for "their" misdeeds of a century and a half ago (and more recent misdeeds as well, since I think much of the case for reparations rests on the Jim Crow era). No west African state and probably no west African collectivity or corporation has that same demonstrable intergenerational continuity. The relevant actors have ceased to exist. So there's no one who could be held responsible today in west Africa, although there is in the US.

That seems plausible to me. But it also seems unnecessary to reach the conclusion. Forward-looking distributive and welfarist considerations alone would, it seems to me, trump any backward-looking evidence of continuity one could find. That's not a comfortable view for me, and maybe my intuition is still entangled with other facts about the case. But at least I can now see Waldron's point on a basic level that I've never managed before, even though I can follow the argument just fine.

(Hat tip Melissa Harris-Lacewell on twitter.)


danbutt said...

Hi Jacob,

I agree that there are many good reasons to think that taxing those West Africans who have low contemporary living standards to make payments to modern day African-Americans is a bad idea. That’s straightforward if you have a basically forward looking approach to distributive justice, and, as you say, the morally relevant forms of continuity are unlikely to be in place for modern day *communities* for those who espouse backward looking accounts. So three broad perspectives - (i) forward looking, don’t worry about the past; ii) backward looking, but require particular form of connection with past to give rise to modern day responsibilities, iii) initially backward looking, but can be trumped by forward looking considerations if backward looking approach would give rise to unacceptable poverty and/or inequality, etc – seem to lead to the same conclusion. But there might be particular individuals or families in West Africa who have rectificatory obligations. The following is from a newspaper report from 2001 on the UN Racism Conference in Durban:
“The president of Senegal, Abdoulaye Wade, has ridiculed reparations by saying he is the descendant of generations of slave-owning African royals. "If one can claim reparations for slavery, the slaves of my ancestors or their descendants can also claim money from me because slavery has been practised by all people in the world," he said.”

I think this is meant to be a reductio ad absurdum – “if one accepts that Western countries have to pay reparations for slavery, then one must also accept that I, President Wade, should also do so, which is ridiculous”. I’m rather tempted to bite the bullet on this!

Anyway, the wider point here is that I can’t really imagine an argument that would end up with a county like Senegal possessing a net debt to countries such as the US. If one is serious about reparations for slavery to the descendants of African-American slaves, and believes that there may be contemporary duties which are held across state borders, then one has to think systematically about all historic international injustice, and think about what West African states are owed as a result of their colonial history. It is, of course, theoretically possible, if one has a broadly backward looking view of international distributive justice, to think of a situation where a people was historically responsible for serious wrongdoing and as a result possesses rectificatory obligations in the present. And, of course, it’s possible for there to be a situation where the people with the obligations is, in the present day, very poor, and the country with the rights to compensation is very rich. That’s when you need to start worrying about when you let forward looking concerns trump backward looking concerns. But it’s just implausible to think that we could characterize real world relations between the developed and less developed world in this way. I could say a lot more about Waldron specifically, but I think I’d better stop at this point, and subtly do some self-promotion by pointing out that there’s discussion of all this in my book, Rectifying International Injustice: Principles of Compensation and Restitution Between Nations (OUP).


Jacob T. Levy said...

Dan, Thanks, and I'll have a look. (Should have done so before I wrote my essay on David Miller's book, I suspect.)

But if we think in pairwise terms it becomes less implausible, doesn't it? I take it that you're saying "any debt Senegal might owe to African-American slaves is swamped by the debt that France, by similar standards, would owe to Senegal." Accepted [only] arguendo. But claims won't be settled all at once. If the US were to make reparations for American slavery and then start pressuring some west African states to pay 5% of the bill, there's no reason to think that France would just happen to pay its colonial debts at the same time.

In other words, real-world particular pairs of rich and poor countries might face the situation that you deny "real world relations between the developed and less developed world" do. And so the difference between perspective (ii) and perspective (iii) could matter in practice-- no?

Timothy said...

Hi Jacob,

Thanks very much for this post. I'll have to write more about this later on my own blog.

Here's one possible fact pattern: suppose the reparations amount owed by the U.S. were so large that strict payment of it would make it so that the U.S. wealth vastly decreased, nearing the levels of west Africa. Considering some estimates for how much is owed, this may not be too far-fetched.

(Of course, it is hard to see how paying the reparations hurts the US, since presumably the wealth remains in African American hands)

Anonymous said...

Reparations are usually awarded for illegal acts. Slavery was not illegal. If we were to retroactively apply reparations for every historical shift in ethical standards, noone would be left without a claim, and the subsequent accounting would get out of hand very quickly.

We could also factor in the suffering that would have been caused if an international campaign against slavery hadn't begun in England some 200 or so years ago. The decedents of former slaves owe their freedom - and all the benefits freedom brings - to those who fought to rid the world of slavery.

How much is a future (and recent past) without slavery worth? - must be an awful lot.

Is it even just at all to punish the decedents of those who ended slavery?

Jacob T. Levy said...

There are a number of cases of reparations for acts that apparently weren't illegal at the time under the positive law of the relevant society-- reparations to Japanese-Americans in World War II, West German reparations to Israel for the Holocaust, Austrian reparations to Jews forced into slavery in WWII, Canadian reparations to Indian children taken from their homes, etc. I say "apparently" and add the rest of the qualifiers because in lots of these cases there's a claim that the underlying law (constitutional law, natural law, law of nations) meant the action was always illegal anyway even if people didn't realize it at the time-- but that's true for slavery, too.

The basic precedent has long since been set, so you can't get anywhere with a slippery slope/ "where will it end?" argument. Arguments have to reach the particular case.

No, no one owes compensation because an injustice was ended. If you were hitting me, and then you stopped, the debt you owe me for the assault isn't canceled by some debt I owe you because you were gracious enough to cease. Even if it's a completely disconnected third party who intervenes to stop the assault (and, e.g., England was far from a disconnected third party in the case of slavery), I don't owe a debt to the third party (though I might choose to give a reward).

Anonymous said...

"Arguments have to reach the particular case." - Jacob T. Levy

Arguments do hit the particular when the general holds.

Reparations to Japanese-Americans in World War II; paid to individuals who themselves suffered directly. West German reparations to Israel for the Holocaust; this did nothing for Canadian holocaust survivors and frankly, is an argument against collective reparations. Canadian reparations to aboriginal children taken from their homes; paid to the individuals who themselves directly suffered and also an argument against collective colouring of justice - non-aboriginal children who have experienced the same have received nothing. (I don't know much about the Austrian case I'm afraid).

But these aren't merely poor precedents...

"If you were hitting me, and then you stopped, the debt you owe me for the assault isn't canceled by some debt I owe you because you were gracious enough to cease." - Jacob T. Levy

Who is "you"? If you want to make a personal analogy, a more accurate one would look like this:

"If your cousin was hitting me, and then you stopped him, the dept you owe me for the assault isn't canceled by some dept I owe you because you were gracious enough to stop him."

That's a little warped don't you think? Your confusion is that you're treating collectives as if they were individuals. They aren't, and if we are to consider them so, we have some laws against collective punishment that need mending.

Collective justice, to the degree there can be such a thing at all, isn't about the regressive balancing of old scores, or communitarian quotas, but about a progressive distributional justice. There is a slippery slope when conceptions of justice not only threaten to dole out special benefits to those who are not suffering particularly, but overlooks others sufferers because the nature of history obscures their grievances. Reparations paid to a former slaves living in poverty does nothing for a Mongolian immagrnt living in poverty next door him, nor anyone else living in a trailer down the street, though they're all suffering the same distributional injustice.

Indirect distributional justice, in my view, is folly.