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In this essay I want to focus on the questions:
a) On what grounds, if any, are living individuals owed compensation for
injustices committed against their ancestors?
b) And who, if anyone, is obligated to pay this compensation?
Following Korsgaard’s advice for good philosophizing “that a clear
statement of the problem is also a statement of the solution” (1996, 49),
Morris (1984) forcefully denies that there are any obligations to
compensate descendants for wrongful harms done to their ancestors.
This position taken together with our strong intuitions1 that we do have
such obligations creates the problem and the topic of this essay. It gives
rise to the Non-Identity-Problem (NIP) dealt with by Sher (2005) and
Boxill (2010, 2003) who offered two different ways not to solve,
however, but to circumvent the NIP. Sher (2005) presents the
harm-argument (so called by Boxill (2010)) and Boxill (2010) presents
additionally the inheritance-argument. Both arguments try to establish an
obligation of compensation for ancestral wrongful harms to descendants.
In this essay I want to challenge Sher’s solution (harm-argument) –
although I am initially able to defend his account against the
badly-brought-up-child objection raised by him against his own account
– Sher’s argument yields counterintuitive results (fade-out objection and
no-rights-violated objection). On the other hand, I want to espouse 1 I assume in this essay contrary to Morris (1984, 179) that our intuitions do play an important role in moral reasoning.
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Boxill’s account (inheritance-argument) as more convincing and more in
line with our intuition. Finally, I want to consider the second question,
which has not been dealt with so far. In doing so I will draw on Boxill’s
argument and give a more slim-lined defence as Boxill gave against the
objection that only those who are responsible for wrongful harms are
obliged to compensate; thus current governments are not obliged to pay
compensations.
For the following discussion of the NIP-solutions a conceptual
background is needed. I will provide it by spelling out the NIP in more
detail and by giving an account of the rectification principle as presented
by Nozick (1974), since Sher relies explicitly, and I assume Boxill tacitly,
on this account.
The standard view of compensation according to Nozick is the
following:
“Something fully compensates a person for a loss if and only if it
makes him no worse off than he otherwise would have been; it
compensates person for person ’s action if is no worse
off receiving it, having done , than would have been
without receiving it if had not done .”
(1974, 74; italics added)
It is already insightful that Nozick’s account, strictly speaking, is not
applicable to the question(s) above since it leaves open whether the
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action done by was wrongful, hence unjust. This creates in so far a
difficulty, since it is possible to harm someone without wronging (just
punishment) or wronging someone without harming (beneficial
involuntary euthanasia) (Morris 1984, 180 fn. 3). Thus it is necessary to
add to Nozick’s account that the action done by was wrongful; as
already indicated by Sher (2005, 183 fn. 5). Moreover, for the further
discussion it must be highlighted that the unjust nature of ’s action
comes from a transgression of ’s rights by ’s action – this precisely
makes ’s action unjust. This Lockean understanding (1690, Chp. II)
can authentically be used to specify Nozick’s account and is in line with
his understanding of rights as side-constraints (1974, 26-53)2. In a
nutshell: “[I]f we wrong some person, we owe her compensation for the
harm done” (Morris 1984, 175). This compensation owed to rectify is
called reparation.
The NIP is due to the application of counterfactual reasoning within the
principle of rectification to establish that the descendants are worse off
than they otherwise would have been in consequence of ancestral
(uncompensated) wrong since the identity of those descendants cannot
be definitely established. According to Sher the branching-condition of
personal identity (Sher 2005, 187, 190) and according to Morris (1984)
the same-sperm-and-egg-criterion (Sher 2005, 196) do not hold since
2 In this essay I will focus only on right-transgression, which was wrong − and harmful.
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“[t]he most minute circumstantial difference will determine which
spermatozoon will fertilize the ovum and thus the identity of the
individual conceived” (Morris 1984, 177), hence in the absence of
ancestral wrong the individual conceived would be different, therefore
the actual descendant has no claim for compensation. Thus we are left
with the dilemmatic conclusion that those descendants are not owed any
compensation, contrary to our intuition.
Sher tries to circumvent the NIP by claiming that the “unrectified
wrongs of the past generations are systematically correlated with certain
wrongs done within the current generation”3, thus “what look like claims
to be compensated for the earlier wrongs are in fact claims to be
compensated for the associated recent wrongs – wrongs which, having
been done within the current generation, do not give rise to the non-
identity problem” (the harm-argument) (2005, 191). Those wrongs are
the wrongs of non-rectification of ancestral injustices.
This argument initially convincing, gives rise to the
badly-brought-up-child example (ibid., 198-200), which I want to
consider next. According to this objection “the effects of the original
wrong that intuitively appear to give the child a claim to compensation
are causally independent of any recent failure to compensate the original
victim” (ibid., 198). If Sher’s solution of the NIP is applied, the child is
3 This solution was already indicated by Morris (1984, 177).
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not owed any compensation contrary to our intuition; thus Sher
concludes that his principle “coincides only imperfectly with our
intuitions about when transgenerational compensation is warranted”
(ibid., 199-200). This is too hasty a conclusion, since, as I want to argue,
this objection confuses again rectification and redistribution, as already
pointed out by Morris (1984, 178) against Sher’s earlier article (1981).
Our intuition in this case is not about (transgenerational) compensation
at all, it is rather an expression of a principle of fairness or fair equality of
opportunity to ensure “that every child has equal life chances, no matter
what their background” (Skills 2006, 4), which clearly belongs to
redistributive than to rectificatory justice, thus this objection misses the
point. Although this objection can be refuted, Sher’s harm-argument
faces further problems.
First and foremost Sher’s harm-argument gives rise to the fade-out
objection: If one assumes that “the sequences of injustices each of which
is distinct from the original” injustice, as done by Sher (2005, 192) –
further that the original injustice is graver than the subsequent injustice
of not-compensating the first generation after the initial injustice and
graver than not-not-compensating, etc. thus there are owed less (ibid.,
194) and one can conclude that the amount owed as compensation will
eventually become insignificant as depicted in Figure 1 (see appendix). It
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shows that, for example, after 150 years (6th generation)4 only 32 per cent
of the original claim is owed to the descendant5, assumed a 20 per cent
discount. This assumption is justified, since the victims of recent wrongs
are owed less than the victims of ancient wrongs “the only definite
intuition is […] that they are owed something” (Sher 2005, 194). This result
stands in marked contrast to our intuition that time should have no
(significant) impact on the amount owed as reparation; this is especially
true for grave crimes such as war crimes. The disparity between “the
amount of compensation that the child is owed” and “the amount that
we take him to be owed as compensation for the original injustice” (ibid.,
193) – cannot be such, that former can become insignificant – a result
not anticipated by Sher, who merely pointed at this problem.
Secondly, the no-rights-violated objection: The harm-argument
overemphasises the less-well-off situation (harm) of descendants they
otherwise would have been in and underemphasises the necessary
wrongful character of this harm (rights-transgression). This becomes
apparent when cases like the badly-off flower-seller are considered. It is
perfectly sound to imagine that a couple who used to buy flowers daily
for each other at the next flower-seller stopped doing so because of an
uncompensated injustice; hence the flower-seller is worse-off than he
otherwise would have been if the couple had been compensated and thus 4 One generation equals 25 years. 5 By a generation-length of 20 years, after 150 years (7th/8th generation) approximately 23 per cent of the original compensation is left.
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had continued their habit. Has the flower-seller got a claim for
rectification? For Sher he does, but this overstretches the notion of
rectification. It is unfortunate that the flower-seller cannot sell anymore
flowers to the couple, but no right-violation took place. The same is true
for children of those parents – unless one assumes that there is a right to
a happy childhood6. This result seems to indicate that the boundary
between unfair disadvantaging which is a matter of distributive-justice
and unjust right-violations (rectificatory-justice) are easily crossed. Thus,
it can be concluded that Sher’s principle is too weak – it only accounts
for the claim that the child is owed something, since it is less well-off as
it otherwise would have been (disadvantaged and not wrongful harm) –
but distributive-justice principles like the principle of fairness or fair
equality of opportunity can account for this intuition. In sum, Sher’s
harm-argument seems to be not a promising road to take. Thus we are
left with Boxill’s inheritance argument, which I want to consider
subsequently.
Boxill, different from Sher, claims that those descendants of ancestral
uncompensated injustice are owed compensation because “when people
die their rights to their property are normally passed to their heirs […]
[t]he reparation owed to the freed people was their property; they had
rights to it” (Boxill 2010). The inheritance-argument is more plausible,
6 Nozick’s account of rights as side-constraints understands rights as negative-rights against intervention and not as positive rights for particular purposes.
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since it can avoid both objections. Due to the concentration on ancestral
rights-violation and not merely harm, the second objection is ruled out.
The first objection is not applicable, because rightful entitlements do not
fade to exist over time. Furthermore, considering the amount of
thought-experiments where descendants of ancestral uncompensated
wrongs are discussed and not someone who is also worsened but not
immediately related to the victim it is more intuitive to apply inheritance
principles rather than too broad applicable harm principles.
Boxill already anticipates the problem of who has to pay the
compensation which is in particular hard to answer for collective actors,
which I want to consider in the reminder of this essay.
His rather complex solution trades on Lock’s account (1690, Chp. XVI)
that the people were/are responsible for the unjust action done by the
government due to their assistance, concurrence and consent. This
solution is, however, vulnerable to the following objection: It establishes
collective responsibility and thus collective guilt, which has since the
Nuremberg Trials and according to the Geneva Convention IV §337
been abolished and replaced by individual guilt. To respond to this
rejection one has to differentiate between liability and
responsibility/guilt, which is common in international law. Thus,
although the collective is not responsible, it is liable for individual acts
7 “Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”
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(e.g. war reparation). This differentiation must also be reflected in the
principle of rectification, since it is tacitly assumed that is responsible
for action hence solely obliged to compensate, which according to my
argument is not necessarily true. With this principle it is also clearer why
we have the intuition that beneficiaries of ancestral injustice are obliged to
compensate, not because they are responsible but liable, since they
inherit with the benefits also the obligation to compensate.
In this essay I have argued that Sher’s harm-argument for
transgenerational compensation and his attempt to circumvent the NIP
fails to be convincing due to the fade-out objection and
no-rights-violated objection. Thus, Boxill’s inheritance-argument is left
and seems to be more intuitive and can avoid both objections, when
liability and responsibility are differentiated.
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Bibliography
Boxill, Bernard R. 2003. "A Lockean Argument for Black Reparations." The Journal of Ethics no. 7 (1):63-91. doi: 10.1023/A:1022826929393.
Boxill, Bernard R. 2010. Black Reparations. In The Stanford Encyclopedia of Philosophy, edited by Edward N. Zalta.
Korsgaard, Christine M. 1996. The sources of normativity. Cambridge: Cambridge University Press.
Locke, John. 1690. "The Second Treatise of Civil Government." In. http://www.constitution.org/jl/2ndtreat.htm (accessed 06.04.2014).
Morris, Christopher W. 1984. "Existential Limits to the Rectification of past Wrongs." American Philosophical Quarterly no. 21 (2):175 - 182.
Nozick, Robert. 1974. Anarchy, state, and Utopia. Oxford: Blackwell.
Sher, George. 1981. "Ancient Wrongs and Modern Rights." Philosophy & Public Affairs no. 10 (1):3-17.
Sher, George. 2005. "Transgenerational Compensation." Philosophy & Public Affairs no. 33 (2):181-200. doi: 10.1111/j.1088-4963.2005.00029.x.
Skills, Department for Education and. 2006. "Education and Skills: Widening participation in higher education." In, ed Department for Education and Skills. London.
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http://issuu.com/piersland/docs/6820-dfes-wideningparticipation2 (accessed 07.04.2014).