Responding to historic wrongs: Practical and theoretical problems

Oxford Journal of Legal Studies

Volumn 27, Issue 2, 2007, Pages 339-354

  Chowdry, Monica ^a   Mitchell, Charles ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34447627937     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqm002     Document Type: Article

References (70)

1. R. L. Brooks (ed), When Sorry Isn't Enough: The Controversy over Apologies and Reparations for Human Injustice (New York: New York University Press, 1999) 3.
2. The rapidly expanding academic literature on this topic is helpfully collected and analysed in M. R. Marrus Official Apologies and the Quest for Historical Justice (Toronto, Munk Center for International Studies, University of Toronto, Occasional Paper No 3, 2006).
3. (2002) 60 OR (3d) 737, (2002) 217 DLR (4th) 583; leave to appeal to the Supreme Court of Canada denied: [2002] SCCA No 476.
4. Canada was not the only British colony to take measures of this kind. A similar poll tax was imposed on Chinese immigrants into Australia between 1855 and 1903, and on Chinese immigrants into New Zealand between 1881 and 1952. In 2002 the New Zealand Prime Minister, Helen Clark, formally apologized to Chinese New Zealanders who had paid the poll tax, and their descendants.
5. See now Garland v Consumers' Gas Co [2004] 1 SCR 629
6. Pacific National Investments Ltd v City of Victoria [2004] 3 SCR 575
7. Gladstone v Canada [2005] 1 SCR 325.
8. B. L. Paulson and S. L. Paulson (trans) G. Radbruch 'Statutory Lawlessness and Supra-Statutory Law (1946)'
9. and 'Five Minutes of Legal Philosophy (1945)' (2006) 26 OJLS 1 and 13.
10. Calling, 82-3.
11. Ibid, 156 7.
12. Lu goes on to note that the case for reparations by the Chinese head tax payers and their families referred to the successful claim for redress by Japanese Canadians interned during the Second World War, and asserted that the plaintiffs were no less the victims of official racism than the latter group.
13. For example, P. S. Atiyah, Accidents, Compensation and the Law (London: Weidenfeld & Nicolson, 1970)
14. and subsequent editions; also P. S. Atiyah, The Damages Lottery (Oxfod: Hart Publishing, 1997).
15. E. L. Sherwin, 'Reparations and Unjust Enrichment' (2004) 84 Boston University Law Rev 1443, 1455, n 71 and text. As Sherwin is careful to stress, this observation does not amount to an expressive theory of claims of historic wrongdoing according to which judicial recognition of claims communicates judicial endorsement of the atitudes which they entail.
16. On expressive theories of law, see M. D. Adler, 'Expressive Theories of Law: A Sceptical Overview' (2000) 148 U Penn L Rev 1363
17. E. S. Anderson and R. H. Pildes, 'Expressive Theories of Law: A General Restatement' (2000) 148 U Penn L Rev 1503
18. M. D. Adler, 'Linguistic Meaning, Nonlinguistic "Expression", and the Multiple Variants of Expressivism: A Reply to Professors Anderson and Pildes' (2000) 148 U Penn L Rev 1577.
19. Discussed in B. Neuborne, 'Holocaust Reparations Litigation: Lessons for the Slavery Reparations Movement' (2003) 58 NYU Annual Survey of American Law 615
20. M. J. Bazyler and K. G. Everitt, 'Holocaust Restitution Litigation in the United States: An Update' (2004) ACLU Civil Liberties Report; http://www.aclu.org/iclr/bazyler.pdf.
21. Discussed in A. L. Brophy 'Some Conceptual and Legal Problems in Reparations for Slavery' (2003) 58 NYU Annual Survey of American Law 497.
22. Calling, 364.
23. See too D. A. Crerar, 'The Restitutionary Class Action' (1998) 56 Univ of Toronto Fac of Law Rev 47, 77-83.
24. J. Edelman, Gain Based Damage(Oxford: Hart Publishing, 2002), 36-8
25. P. Birks, Unjust Enrichment (Oxford: OUP, 2nd edn, 2005), 12.
26. K. Barker, Understanding the Unjust Enrichment Principle in Private Law: A Study of the Concept and its Reasons' in J. W. Neyers et al. (eds), Understanding Unjust Enrichment (Oxford: Hart Publishing, 2004) 79
27. H. Dagan, The Law and Ethics of Restitution (Cambridge: CUP, 2004)
28. K. Barker 'Theorising Unjust Enrichment Law' (2006) 26 OJLS 609.
29. Deutsche Morgan Grenfell Group plc v IRC [2006] UKHL 49; [2006] 3 WLR 3, [21] (Lord Hoffmann).
30. A. J. Sebok, 'Should Claims Based on African-American Slavery Be Litigated in the Courts? And If So, How?' (4 December 2000), online at: http://writ.corporate.findlaw.com/sebok/20001204.html.
31. See too A J Sebok, Reparations, Unjust Enrichment, and the Importance of Knowing the Difference Between the Two' (2003) 58 NYU Annual Survey of American Law 651
32. A. J. Sebok, 'Two Concepts of Injustice in Restitution for Slavery' (2004) 84 Boston University Law Rev 1405.
33. Cf. R. Mawani, '"Cleansing the Conscience of the People": Reading Head Tax Redress in Multicultural Canada' (2004) 19 Can J L & Soc 127, arguing that two national-racial myths impeded the head tax payers' demands: That Canada was 'settled' (rather than colonized) by immigrants who 'chose' to enter the country in search of a better life, and that Chinese Canadians are an economically successful 'model minority' (suggesting that their claims for redress were unreasonable or excessive).
34. 'Statutory Lawlessness', above n 6, 7.
35. Calling, 241.
36. See too H. O. Pappe 'On the Validity of Judicial Decisions in the Nazi Era' (1960) 23 MLR 260. At pp 242-3 of his essay, Rivers also discusses various post-war cases in which the German civil courts relied on the Radbruch formula to determine the outcome of property disputes relating to the ownership of assets which had been expropriated from Jews under Nazi decrees, including Hitler's notorious decree of 23 November, 1941 depriving all such German Jews as were living abroad of their nationality and confiscating their property.
37. These cases were noted in F. A. Mann, 'The Present Validity of Nazi Nationality Laws' (1973) 80 LQR 194, 199, which was subsequently cited by Lord Cross in Oppenheimer v Cattermole [1976] AC 249, 278, where he held that 'a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all'.
38. Cf. Lord Woolf, 'Droit Public - English Style' [1995] Public Law 57, 69: 'if Parliament did the unthinkable, then I would say that the courts would also be required to act in a manner which would be without precedent. Some judges might choose to do so by saying that it was an unreburrable presumption that Parliament could never intend such a result. I myself would consider that there were advantages in making it clear that ultimately there are even limits on the supremacy of Parliament which it is the courts' inalienable responsibility to identify and uphold.'
39. Judgment of 29 January 1952, BGHSt 2, 234, 237 et seq.
40. Judgment of 26 July 1994, BGHSt 40, 218.
41. See too the court's judgment of 20 March 1995, BGHSt 41, 101, where it relied still more heavily on the Radbruch formula.
42. Section 27, para 2, of the Border Statute (Grenzgesetz) of 25 March 1982.
43. J. Gardner, 'Legal Positivism: 5 1/2 Myths' (2001) 46 Am J Juris 199.
44. This is a slight over-simplication, because as Gardner discusses at 204-7, some (though not all) legal positivists hold that legal norms which are valid on their sources have the in-built merit that they can settle matters that cannot be settled by reference to any other norms.
45. H. L. A. Hart 'Positivism and the Separation of Law and Morals' in H. L. A. Hart Essays in Jurisprudence and Philosophy (Oxford: OUP, 1983) 49, esp 77 ('we say that laws may be law but too evil to be obeyed').
46. V. G. Curran, 'Racism's Past and Law's Future' (2004) 28 Vermont Law Rev 683, 696-9.
47. It is often said that Radbruch's argument marked a departure from the legal positivist position which he had occupied prior to the 1930s, and that his recantation was prompted by the belief that legal positivism had caused the failure of German judges to resist Nazi enactments, which they had thought it their duty to apply without assessing their moral merits: See e.g. P. Caldwell, 'Legal Positivism and Weimar' (1994) Am J Juris 273, 273-5.
48. However, for a more nuanced reading of Radbruch's earlier position, see S. L. Paulson, 'Radbruch on Unjust Laws: Competing Earlier and Later Views?' (1995) 15 OJLS 489.
49. L. L. Fuller, 'Positivism and Fidelity to Law - A Reply to Professor Hart' (1958) 71 Harvard Law Review 630, 655.
50. Ibid.
51. In The Morality of Law revised edn (New Haven, Vale U P, 1968) 41, he characterized these moral values as follows: 'legality in which all rules are perfectly clear, consistent with one another, known to every citizen, and never retroactive[;] the rules remain constant through time, demand only what is possible, and are scrupulously observed by courts, police, and everyone else charged with their administration.'
52. Ibid, 96-7.
53. D. Dyzenhaus (trans.) R. Alexy 'A Defence of Radbruch's Formula' in D. Dyzenhaus (ed.), Recrafting the Rule of Law: The Limits of Legal Order (Oxford: Hart Publishing, 1999) 15.
54. Calling, 265-6.
55. Ibid, 265.
56. Ibid, 248.
57. Ibid, 280.
58. Ibid, 275.
59. Ibid, 248.
60. Ibid, 272-3.
61. Ibid, 249.
62. See cases cited above n 5.
63. Woolwich Equitable BS v IRC [1993] AC 70, 172 (Lord Goff)
64. Deutsche Morgan Grenfell Group plc v IRC [2006] UKHL 49; [2006] 3 WLR 3, [21] (Loord Hoffmann) and [155] (Lord Walker).
65. Calling, 298.
66. For example, Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32.
67. Cf Razborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516, 557 (Gummow J): 'Here, "failure of consideration" identifies the failure to sustain itself of the state of affair contemplated as a basis for the payments the appellants seek to recover.' Roman lawyers would recognise this as the condictio causa data causa non secuta.
68. Calling, 298.
69. A better option is to make suspended orders to give public authority defendants time to set their affairs in order: Re Eurig Estate [1998] 2 SCR 568
70. Kingstreet Investments Ltd v New Brunswick [2007] SCC 1 [12] and [25].