The inheritance-based claim to reparations

Legal Theory

Volumn 8, Issue 2, 2002, Pages 243-267

  Kershnar, Stephen ^a  

^a STATE UNIVERSITY OF NEW YORK AT FREDONIA   (United States)

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EID: 84890643455     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325202082046     Document Type: Article

References (42)

1. Randall Robinson, THE DEBT: WHAT AMERICA OWES TO BLACKS (2001).
2. Reparations for Slavery, 1 (CBS News television broadcast, 2000), available from www.cbsnews. com/stories/2000/11/04/national/main246998.shtml.
3. Larry Neal and James Marketti estimate that the value of unpaid income to slaves amounts to $1.4 trillion and $3.4 trillion respectively. Dinesh D'Souza, THE END OF RACISM 69 n.18 (1995) citing Richard F. America, ed., THE WEALTH OF RACES: THE PRESENT VALUE OF BENEFITS FROM PAST INJUSTICES (1990).
4. Parts of sections II and III come from Are the Descendants of Slaves Owed Compensation for Slavery?, 16 J. APPLIED PHIL. 95-101 (1999).
5. The underlying assumption here is that the identity of one's parents is an essential property of a person. On some accounts, this follows from the more general principle that the origin of an object is essential to it. Saul Kripke, Naming and Necessity, in SEMANTICS OF NATURAL LANGUAGE 351 n.57 (2nd ed., Donald Davidson and Gilbert Harman, eds., 1972). These accounts probably depend on a physicalist account of personal identity. The idea for this point comes from Geoffrey Madell, THE IDENTITY OF THE SELF 80-87 (1981). In addition, for simplicity I have chosen to focus on slavery. However a similar argument can be made with regard to Native Americans, interned Japanese-Americans, etc., since unjust treatment affected the mate selection and reproductive choices of members of these groups.
6. This argument can be seen in Christopher W. Morris, Existential Limits to the Rectification of Past Wrongs, 21 AM. PHIL. Q. 175-182 (1984); Michael E. Levin, Reverse Discrimination, Shackled Runners, and Personal Identity, 37 PHIL. STUD. 143 (1980); Ellen Frankel Paul, Set-Asides, Reparations, and Compensatory Justice, 33 NOMOS 119 (1991); Onora O'Neill, Rights to Compensation, 5 SOC. PHIL. & POL'Y 81 (1987). George Sher also brings up this argument, although he does so in a different context; George Sher, Compensation and Transworld Personal Identity, 62 MONIST 388-390 (1979).
7. Jeffrie Murphy & Jules Coleman, PHILOSOPHY OF LAW 159 (2nd ed., 1990).
8. This view fits nicely with, but is not entailed by, Alvin Goldman's definition of an act token as the exemplifying of an act property by the agent at a particular time (and possibly in a particular manner); Alvin Goldman, A THEORY OF HUMAN ACTION 10 (1970). It also relates to the idea that an event's cause is an essential feature of it. Peter van Inwagen, Ability and Responsibility, 87 PHIL. REV. 201-224 (1978). On this view, the properly structured counterfactual is an epistemic guide but not the actual criterion for a token harm.
9. Versions of this argument can be found in Dinesh D'Souza, THE END OF RACISM 113 (1995); and Ellen Frankel Paul, Set-Asides, Reparations, and Compensatory Justice, 119.
10. Joel Feinberg, HARM TO OTHERS 95-104 (1984).
11. This idea comes from David Benatar, Why It Is Better Never to Come into Existence, 34 AM. PHIL. Q. 345 (1997).
12. This model can be seen in Feinberg, HARM TO OTHERS, 53-54.
13. Derek Parfit argues that causing a person to exist does benefit her even though it does not make her position any better. Derek Parfit, REASONS AND PERSONS 487-490 (1984). This account rests on a broader view of benefits and harms than the one I invoke above, but, if successful, it can account for the gratitude in question.
14. This point comes from Seana Valentine Shiffrin, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 LEGAL THEORY 122 (1999).
15. Recent case law seems to sharply restrict the ability of children to recover for harm to their parents. Ferriter v. Daniel O'Connell's Sons, Inc., 413 N.E. 2d 690 (Mass. 1980), held that children may recover for loss of society and companionship as a result of injuries done to their parent, but only if the children are minors who are dependent on the parent for nurture and development. Similar results occur in Berger v. Weber, 303 N.W.2d 424 (1981) and Weitl v. Moes, 311 N.W.2d 259 (Iowa 1981). It is not clear whether recovery under this line of cases requires that the children exist at the time the injury occurred, although such restrictions might in any case reflect pragmatic concerns.
16. Thomas Nagel and George Sher identify this as an unfair advantage that whitemales gain as a result of prior unjust acts. Thomas Nagel, Equal Treatment and Compensatory Discrimination, 8 PHIL. & PUB. AFF. 360 (1973); George Sher, Preferential Hiring, in JUST BUSINESS 48 (Tom Regan, ed., 1983).
17. George Sher and Judith Jarvis Thomson identify this as an unfair advantage that white males gain as a result of prior unjust acts. George Sher, Justifying Reverse Discrimination in Employment, in THE AFFIRMATIVE ACTION DEBATE 73-75 (Steven M. Cahn, ed., 1995); Sher, Preferential Hiring, 48; Judith Jarvis Thomson, Preferential Hiring, in EQUALITY AND PREFERENTIAL HIRING 38-39 (Marshall Cohen, et al., eds., 1977).
18. BLACK'S LAW DICTIONARY (5th ed., 1979), s.v. “Constructive trust.”
19. Feinberg, HARM TO OTHERS, 79-95.
20. On some accounts, promises are a type of conventional speech act that has illocutionary force. John Searle, What Is a Speech Act? in PHILOSOPHY OF LANGUAGE 120-125 (2nd ed., A. P. Martinich, ed., 1990); John Searle, How to Derive “Ought” from “Is,” in THEORIES OF ETHICS 101-114 (Philippa Foot, ed., 1990). On such an account, they may be independent of institutions (bodies that have authority over others) even if they are dependent of conventions. The notion that contracts and gifts are types of promises is defended in Charles Fried, CONTRACT AS PROMISE (1981).
21. Bernard R. Boxill, BLACKS AND SOCIAL JUSTICE 153-154 (2nd ed., 1992). Michael D. Bayles discusses the idea that reparations are owed to groups and not to individuals but not does not clearly endorse the idea; Michael D. Bayles, Reparations to Wronged Groups, in THE AFFIRMATIVE ACTION DEBATE 15-18 (Steven M. Cahn, ed., 1995).
22. Some of the ideas for this argument come from George Sher, Preferential Hiring, in JUST BUSINESS 36-37; and Michael Tooley, Abortion and Infanticide, in THE RIGHTS AND WRONGS OF ABORTION 58-65 (Marshall Cohen, et al., eds., 1974).
23. George Schedler objects that compensation for slavery is not owed for coerced labor on the basis that the relevant baseline is a world in which the work is not done or done by other workers. On this account, the relevant baseline world is not a world in which the slave does the work and is compensated for it. George Schedler, RACIST SYMBOLS & REPARATIONS 101, 107-109 (1998). Still, in the world in which slavery occurs, the slave's interest in receiving just compensation for one's work is set back.
24. David Friedman, What Is “Fair Compensation” for Death or Injury?, 2 INT'L REV. L. & ECON. 85 (1982).
25. Other adjustments would also have to be made. For example, there may be a diminishing marginal utility for injured parties that ought not be factored into the compensation that is owed. Friedman, 82-83.
26. Richard J. Herrnstein and Charles Murray argue for the existence of such differences in THE BELL CURVE (1994), ch. 13. Their argument has received a lot of criticism. For example, some authors have argued that that racial mistreatment and not genetics may account for the data that are used to support the notion of high intraracial heritability of IQ. Ned Block, How Heritability Misleads about Race, 56COGNITION 99-128 (1995); C. Jencks, RETHINKING SOCIAL POLICY 99, 107 (1991); and Andrew Hacker, TWO NATIONS 27 (1992). Others object that the inference from genotype to phenotype with a particular IQ that underlies the finding of interracial genetic differences in intelligence is flawed because the phenotypical patternsmay change whenwe consider unobserved environments. Block, id., figs. 4 and 5; D. Layzer, Science or Superstitution:APhysical Scientist Looks at the IQ Controversy, in THE IQ CONTROVERSY 194-241 (N. Block & G. Dworkin, eds., 1976). There are also general objections to the inference from IQ test scores to different genetic aptitudes. Among the more general objections are that there is no such thing as intelligence (as opposed tomultiple distinct abilities); even if there is such a thing as intelligence, it is not measured by IQ tests; and in any case, environmental factors alone explain intra-and intergroup differences. The summary of the different objections along with a critical response to them occurs in Michael Levin, WHY RACE MATTERS (1997), chs. 3-4; and Max Hocutt & Michael Levin, The Bell Curve Case for Heredity, 29 PHIL. SOC. SCI. 389-415 (1999).
27. An extended defense of this claim is provided in Thomas Sowell, CIVIL RIGHTS: RHETORIC OR REALITY? (1984).
28. U.S. Dept. of Commerce, STATISTICAL ABSTRACT OF THE UNITED STATES 2000, 70 (2001).
29. T. Gest, A Shocking Look at Blacks and Crime, U.S. NEWS & WORLD REPORT 53-54 (Oct. 16, 1995); Hacker, TWO NATIONS, 181; N.A. Wiener & M.E. Wolfgang, The Extent and Character of Violent Crime in America, 1969 to 1982, in VIOLENCE 32 (Neil Alan Weiner et al., eds., 1990).
30. Studies of identical twins raised in different families show a high degree of similarity in intelligence. This suggests that intelligence is to a significant degree heritable. These studies are summarized in T. J. Bouchard, The Genetic Architecture of Human Intelligence, in BIOLOGICAL APPROACHES TO THE STUDY OF HUMAN INTELLIGENCE (P. A. Vernon, ed., 1993). Adoption studies show that black children have IQ test scores closer to their genetic parents than their adopted white parents. This suggests the interracial difference in intelligence is genetic. R. Weinberg, S. Scarr, & I. Waldman, The Minnesota Transracial Adoption Study: A Follow-up of IQ Test Performance at Adolescence, 16 INTELLIGENCE 117-135 (1992). Herrnstein and Murray estimate that the black-white difference in intelligence is significant (one standard deviation) and that roughly 60% of it is hereditary. Herrnstein & Murray, THE BELL CURVE, 276-280, 298-299.
31. Herrnstein and Murray, chs. 5-12.
32. For example, an efficiency-based defense of property rights can be found in Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV.: PROC. & PAPERS 347-359 (1967). A desert-based defense of income earned via sacrifice can be found in Joel Feinberg, DOING AND DESERVING 88-94 (1970); and a general defense of desert as the object of one's hard work can be found in George Sher, DESERT (1987), ch. 4.
33. This example comes from Strong Affirmative Action Programs at State Educational Institutions Cannot be Justified via Compensatory Justice, 11 PUB. AFF. Q. 354 (1997). A similar point can be found in Louis P. Pojman, The Moral Status of Affirmative Action, in MORALITY IN PRACTICE 247 (5th ed., James P. Sterba, ed., 1997).
34. Here I am not committing myself to the stronger claim that compensatory justice allows a debt of compensation to be discharged by a person other than the one who caused the harm. Such a view is defended in Jules Coleman, Corrective Justice and Wrongful Gain, 11 J. LEGAL STUD. 421-440 (1982).
35. This point invalidates an argument from George Schedler. He argues that since slave owners did not receive any ill-gotten gains (at least by the end of the Civil War), they do not owe any compensation on these grounds. Schedler, RACIST SYMBOLS & REPARATIONS, 114-115. However, given the above point, it can be seen that whether they benefited is irrelevant to the issue of whether they owe damages for the token harm they have caused.
36. Michael Levin, Responses to Race Differences in Crime, 23 J. SOC. PHIL. 5 (1991); citing The Black-on-Black Crime Plague, U.S. NEWS & WORLD REPORT 54 (Aug. 22, 1988). For the figures on violent crimes, see IV.B above.
37. Michael Levin, WHY RACE MATTERS, 259. I suspect that Levin underestimates the degree of the transfer since he underestimates the progressivity of the income tax, but I will leave aside such an argument as it is irrelevant in this context.
38. The fugitive slave laws refer to federal laws passed in 1793 and 1850 and to the Constitution, Art. IV, Sec. 2. The 1793 law, for example, permitted slave owners and their agents to apprehend fugitives in any state or territory but did not give judges the power to issue arrest warrants or require federal marshals to assist owners. The federal marshals played an active role in the enforcement of these laws. Michael F. Holt, THE POLITICAL CRISIS OF THE 1850S 89-90 (1978).
39. Schedler, RACIST SYMBOLS & REPARATIONS, 117.
40. This account is dependent on a theory of interests and rights. This is common with regard to theories of justice, e.g., retributivism, which also depend on a theory of these elements. Note that the demands of compensatory justice may differ from the tort law and portions of contract law, since the law is often motivated and justified in terms of utilitarian concerns that are probably not a part of justice. For example, it is argued that where the optimal method of accident avoidance is greater care rather than less economic activity, efficiency favors a negligence criterion for liability. William T. Landes and Richard A. Posner, THE ECONOMIC STRUCTURE OF TORT LAW (1987), ch. 3, esp. 70.
41. The idea is discussed in Robert Nozick, ANARCHY, STATE, AND UTOPIA 152-153, 230-231 (1974); and David Lyons, The New Indian Claims and Original Rights to Land, in READING NOZICK 355-379 (Jeffrey Paul, ed., 1981). The situation is more complex, since where the victim and her inheritors and intended beneficiaries are all dead, an account must be given of the status of the good. For example, does it revert to being unowned? Does it become common property?
42. Some consequentialist accounts posit that moral entities such as desert and rights in part determine the goodness of a state of affairs; e.g., Fred Feldman, Adjusting Utility for Justice: A Consequentialist Reply to the Objection from Justice, inWHATDOWEDESERVE? 259-270 (Louis P. Pojman& Owen McLeod, eds., 1999); and Amartya Sen, Rights and Agency, in CONSEQUENTIALISM AND ITS CRITICS 187-223 (Samuel Scheffler, ed., 1988). Nothing in principle prevents the consequentialist from including certain principles of (or rights to) compensatory justice into her account.