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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).

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