Oddly Thomas Jefferson was probably the first to imply that America ought to make reparation to its slaves. He did not say that it did, and his proposal to send them off to “such place as circumstances of the time should render most proper”, and to “declare them a free and independent people”, was mainly motivated by a desire to rid the country of them, but it also suggests that they were a people and that the U.S. was under some obligation to set them up as a people (Jefferson 1954 [1785a]: 138). Some years after Jefferson’s proposal American slaveholders founded (1816) the American Colonization Society whose ostensible object, made plausible by the presence of some Quakers among its founders, was to help African Americans to go to Liberia and get a fresh start in a country free of racial discrimination. But the real object of the Society, or at least that of the slaveholders who founded it, was to rid the country of free blacks who they feared endangered their peculiar institution. Their stratagem was therefore dealt a deadly blow when Martin Delany who agreed with Jefferson that African Americans were a people and needed a territory on which to become a state, declared that Liberia was
not an independent nation at all; but a poor miserable mockery—a burlesque on a government—a pitiful dependency on the American Colonizationists
and its “principal man, called President, in Liberia” was a “mere parrot” of these individuals (Delany 1852 : 185, emphasis in original).
Demands for compensation related to slavery frequently came up during the Civil War, but not in the way present day Americans would expect. The demands were not to compensate the slaves for the injuries of slavery, but to compensate the slaveholders for the anticipated loss of their slaves. These demands were voiced in the South when they faced the prospect of having to free their slaves, but also voiced in the North, and from the highest sources. President Abraham Lincoln for example repeatedly urged compensated emancipation, which meant paying the slaveholders for the loss of their slaves who would then be deported from America. Indeed at one time he appeared to be ready to propose paying the South $400,000,000, for the loss of their slaves. As W.E.B. Du Bois observed dryly
Lincoln was impressed by the loss of capital invested in slaves, but curiously never seemed seriously to consider the correlative loss of wage and opportunity of slave workers, the tangible results of whose exploitation had gone into the planters’ pockets for two centuries. (Du Bois 1992 : 150)
And Lincoln did not even sugar coat his deportation proposal with the suggestion that the freedmen were a nation and therefore needed a separate territory on which to govern themselves.
Thaddeus Stevens, congressman from Pennsylvania argued that it was not enough to free the slaves and give them the right of suffrage; but that in addition they should be given land confiscated from the rebels. Charles Summer, senator from Massachusetts eventually came to agree with him, but surprisingly the radical ex-slave Frederick Douglass did not. In an excellent discussion Peter C. Myers speculates that Douglass’s “moderation” at this point was a reflection of “what was politically possible”, and of his concern that benevolent missions organized by whites might encourage dependence in the freedmen and prevent them from developing and exercising the virtues of a free people. Douglass’ proposed instead a federal corporation that would purchase tracts of land and then resell or lease them on favorable terms to the freedmen, urging that this arrangement was “more fully consistent with the principle of self-reliance” and give “greater societal recognition of the freed people’s virtue in providing for themselves”. Meyers suggests that Douglass was following Jefferson in emphasizing the corrupting effects of dependence. But while Jefferson had indeed identified dependence as a crucial corrupter, it “begets subservience and venality, suffocates virtue, and prepares fit tools for the designs of ambition” (Jefferson 1954 [1785a]: 165) he declared, he was equally clear that legislators must protect the independence of the small yeoman farmer “the most precious part of the state” from the usurpation of the powerful (Jefferson 2006 [1785b]: 154). In other words Stevens had proposed his scheme for the freed people for exactly the reasons Jefferson proposed legislation for protecting the white yeomen. Years later Douglass evidently saw the error of his moderation. Myers cites his comment in 1882 that had the counsels of Thaddeus Stevens, Charles Sumner, and ‘leading stalwart Republicans’ prevailed, “the terrible evils from which we now suffer would have been averted”, and “the Negro to-day”, would be “tilling his soil in comparative independence” (Myers 2008: 239, quoting Douglass 1882, Appendix A, 440–441). The theme continues to the present day.
Perhaps the most noteworthy demand for Black Reparations after the Civil War occurred in 1969 when James Foreman a member of the Student Nonviolent Coordinating Committee (SNCC), read his “Black Manifesto” at the National Black Economic Development Conference, in Detroit, and later on in Riverside Church. The “Manifesto” demanded $500,000,000, in reparations from Christian white churches and Jewish synagogues, or as the “Manifesto” put it, “15 dollars per nigger”. This demand for reparation the Manifesto argued was justified because over three and a half centuries, whites with the assistance and collaboration of their churches and synagogues had unjustly, through slavery and discrimination, wrested enormous economic advantages from blacks. Although this argument relied on widely accepted moral intuitions, the Manifesto received little popular support. It did however provoke discussion in newspapers and news magazines as well as some scholarly discussion. Boris Bittker included it as an appendix in his book The Case for Black Reparations (1973); Hugo Bedau provided and extended analysis in his “Compensatory Justice and the Black Manifesto” (1972); Michael Harrington and Arnold Kaufman debated its merits in “Black Reparations—Two Views” (1969); and a number of philosophers wrote essays inspired by its argument.
Although interest in the topic remained high among African American philosophers, the wider community of political philosophers preoccupied with Rawlsian ideal theory generally ignored it. But broad and vigorous interest has been rekindled. Perhaps the causes lie outside of academia; in 1988 Congress passed the Civil Liberties Act which authorized payment of reparations to Japanese American citizens who had been imprisoned during World War II; John Conyers has in each session of Congress since 1989 introduced a bill to create a commission to study reparations for slavery and segregation; in 2000 Randall Robinson published his book The Debt: What America Owes to Blacks; in 2003 David Horowitz published his Uncivil Wars; and in 2014 Ta-Nehisi Coates’s widely discussed essay “The Case for Reparations”, appeared in The Atlantic.
2. Locke on Reparation
John Locke provided an early and very clear argument for the reparation owed a lawful conqueror, and many arguments for black reparations follow the outlines of his argument. For Locke people have natural rights they get directly from Natural Law and rights they have acquired in accordance with Natural law. To restrain violations of rights he proposed punishment; punishment must be administered
with so much Severity as will suffice to make it an ill bargain to the Offender, give him cause to repent, and terrifie others from doing the like. (Locke 1689: sec 8)
And to repair the damage that crime “commonly” causes “some person or other” Locke proposed reparation. As he put it reparation must give the “satisfaction due to any private Man, for the damage he has received” (Locke 1689: sec 11). According to Locke reparation was a right stemming from the right of self-preservation. But he insisted that the right can be pressed only against the “goods or service of the Offender” (Locke 1689: sec 11). More precisely while the person damaged can seek help from anyone, she, the victim, has a right to reparation only against the one who wrongly caused her damage. But Locke does not say that she must be the immediate victim of the “Offender”. His claim that crime commonly damages “some person or other” suggests that she may be anyone damaged as a result of the offender’s violation of right. For example she may be damaged because someone murdered her father and thus caused her to live in straitened conditions. On Locke’s account she may be entitled to press her right to reparation against the murderer for the damage he caused her to suffer. On the other hand Locke’s claim that crime “commonly” damages someone suggests that crime or violations of rights do not always cause damage and consequently do not always generate rights to reparation, though it does not suggest that such violations of right do not deserve to be punished. But even when the violation of right does not cause material losses it may cause damages to its victim’s self-respect and moral standing, and in such cases the satisfaction due to her may include an admission of wrong doing from the wrongdoer, a plea for her forgiveness, and an apology. If such admission, plea, and apology require that the wrongdoer repent, reparation may seem to require that the wrongdoer be punished, given Locke’s view that repentance is among the objects of punishment (Locke 1689: sec 8). But Locke’s seems clear that the right to reparation and the right to punish are different rights. On his view we give up the right to punish to the state, but retain the right to reparation. The “Magistrate” he says “may remit deserved punishment where the “publick good demands not the execution of the Law”, but he cannot “remit the satisfaction due to any private Man, for the damage he has received” (Locke 1689: sec 11). Arguably then the apology the wrongdoer must give to his victim in order to give her the satisfaction she has a right to does not require that he repent and perhaps therefore does not require that his apology be sincere. It is also worth noting that although unjust enrichment from crime should not be tolerated, it has little if anything to do with reparation. Reparation focuses on getting satisfaction for the injured victim of crime and the criminal need not unjustly enrich himself as a result of the crime to have wrongfully injured her. He owes her reparation even if he impoverished himself in the process of injuring her. Finally given Locke’s separation of the right to punish from the right of reparation, and his claim that the right of reparation is about making satisfaction to the victim of wrongdoing, Locke would seem committed to holding that when an act of wrong doing is excused though it causes harm, that the victim has a right to reparation although the magistrate may well decide that the public good does not require that the state exercise its right to punish the wrongdoer.
3. Reparation, Restitution, and Compensation
In its primary sense restitution is “restoration of something lost or stolen to its proper owner” (The New Oxford American Dictionary 2001?). Clearly then reparation and restitution clearly both presuppose the separation of something from its proper owner. But equally clearly reparation is not restitution. Reparation can only occur after some losses or damage due to a prior wrongdoing. But though restitution can only occur after some loss or damage, that loss or damage need not be due to a prior wrongdoing. If A loses his wallet and B finds it and returns it to A, restitution has been made although no wrongdoing was committed. Further while reparation is a right, though the right can be outweighed, restitution is not always a right. If B leaves A’s wallet where it is, restitution has not been made, but it is not clear that a right was violated. I doubt that a person who loses things has a right that others find it for him. If B keeps the wallet then again restitution has not been made, and A has a right that B return it. But in that case A has a right that B return it because he has a right to reparation and restitution can sometimes be part of reparation. Some authors seem to think that B ought to return the wallet because otherwise he will have unjustly enriched himself at A’s expense. But it is not clear to me why his unjust enrichment is a necessary condition for his obligation to return the wallet to A. Even if the wallet is worthless and B is not unjustly enriched by keeping it, he has no business holding on to it since it is not his property.
Restitution is neither necessary nor sufficient for reparation even when the thing to be restored to its proper owner was stolen. If A steals a bicycle from B, B has a right to reparation and consequently to restitution if A has the bicycle; reparation must give satisfaction, and A’s satisfaction may depend on her getting back the very thing that was stolen from her. But she may have lost more that the bicycle as a direct result of its theft and her right to reparation requires satisfaction for that further loss. Consequently restitution is not always sufficient for reparation. On the other hand the bicycle may have been destroyed or loss after its theft, making restitution but not reparation impossible. Consequently restitution is not necessary for reparation.
Compensation is related to reparation and restitution but is not the same thing as either. It is not reparation because it simply makes up for damage, harm or loss or lack whether or not it was caused by wrongdoing. Robert Nozick’s famous definition of compensation makes this sufficiently clear. It goes as follows:
Something fully compensates a person for a loss if and only if it makes him no worse off than he would otherwise have been; it compensates person X for person’s Y’s action A if X is no worse off receiving it, if Y had not done A. (Nozick 1974: 57)
Note that Nozick (correctly) does not say that the loss or the action A must be wrongful. Thus a person may be compensated for a loss though he does not have a right to reparation. If a person deserves a loss he has no right to reparation for it, but he may be compensated for it, probably unjustifiably. Even if he has a right to compensation, he may still have no right to reparation. For example he may have a right to be compensated for a loss if he is insured against it, but his right is a right to compensation not a right to reparation if no wrongdoing caused his loss. Similarly if a government is obligated to compensate its citizens for damages caused by certain accidents or “acts of God”, then they may have rights for compensation against their government for losses caused by a hurricane though the government did not wrongfully harm them. Of course, as in the case of Hurricane Katrina and New Orleans in 2005 people who suffer losses caused by a hurricane may have rights to reparation against their government if it was obligated to build sea walls to protect them from hurricanes but negligently failed to do so. But in that case their right to reparation would not be based simply on their losses but also on the fact that they resulted from the wrongdoing of the government (Goldberg 2006: 83–95).
But if a person has a right to reparation he will also often have a right to compensation. This is because his right to reparation is a right to satisfaction for the damages he suffered and such satisfaction often requires that he be made no worse off than he would have been had he not suffered the loss. This does not make a right to compensation the same thing as a right to reparation since a right to reparation can only be generated by damages caused by wrongdoing.
Since a right to reparation is always generated by a wrongful harm, such rights are part of corrective justice or to use Rawls’s term, “partial compliance theory” (Rawls 1971: 8, 9). But Rawls must allow that there can be rights to compensation in full compliance theory. This follows since people can suffer damages that result from no one’s wrongdoing, and may have insured themselves against such damages. Consider too Rawls’s “principle of redress”. This is a principle of compensation for full compliance theory. It may be objected that it cannot be such a principle, but must be instead a principle of non-ideal justice, since according to Rawls himself it requires that “undeserved inequalities”, such as the “inequalities of birth and natural endowment” be “somehow compensated for” (Rawls 1971: 100). But Rawls’s use of “undeserved” at this point is not meant to imply that he is referring to inequalities that are the result of injustice. It only means that those with the inequalities in question did nothing to deserve them. People with the “inequalities of birth and natural endowment” did nothing to deserve these inequalities. Neither are these inequalities necessarily the result of any injustice, though of course they could be. No one’s wrongful act need have caused a baby to be born with autism or Down’s syndrome, though again it could have.
4. Reparation and Affirmative Action
As we have suggested reparation can require different things depending on the nature of the wrongful harm that it addresses. As we saw earlier it can require that territory wrongfully taken from a country be returned to that country. Or as Thaddeus Stevens urged it could require that freed slaves be given forty acres and a mule to enable them to become independent yeomen farmers. Conceivably reparation for blacks today could require that they be according preferential treatment in the competition for jobs and places at universities or colleges. That possibility has been challenged on grounds reminiscent of Douglass’s alleged opposition to Stevens’s scheme, namely, that preferential treatment would undermine the self-reliance of its beneficiaries. Jefferson’s proposal cited earlier that legislators should make laws to enable the poor to become yeomen meets this challenge as effectively. Legislators encourage rather than undermine the self-reliance of the poor when they make laws that protect them from the powerful or enable them to protect themselves from the powerful. Sycophancy not self-reliance is encouraged by being always at the mercy of the powerful. A different challenge has had more lasting effects and has thoroughly changed the face of affirmative action. Suppose to take a straightforward case that a firm wronged and harmed a black person by denying her on account of her race a well paying position for which she was the most qualified candidate. Plausibly the firm could satisfy her claim to reparation by hiring her in preference over better qualified candidates for the same position if it became available. In fact when affirmative action was introduced some years ago its fiercest and most effective critics usually claimed that they would support it if it involved reparation of the sort just described. The problem as they saw it was that most of affirmative action’s beneficiaries were young well qualified men and women who were entering the job market for the first time. The defenders of affirmative action tried to meet this objections by pointing out that if the youngsters’ parents and grandparents had suffered from unjust racial discrimination, then the youngsters too had probably suffered from such discrimination even if indirectly and even if they were entering the job market for the first time. But the critics had anticipated this reply by insisting that the parents and grandparents would have to prove in court that they had suffered from unjust racial discrimination which was of course usually almost impossible for them to do. The defenders of affirmative action tried more complicated replies, but their attempts to justify affirmative action as reparation came to an end when the Supreme Court offered a far easier and ostensibly less divisive way to justify affirmative action. In the Bakke decision of 1978 the Court rejected the argument that affirmative action for blacks could be justified as compensation for disadvantages caused by past unjust racial discrimination, but allowed that such affirmative action could be justified to secure “diversity”. Clearly with a suitably flexible definition of “diversity” this new argument could justify affirmative action for a very wide variety of groups. Probably it would fail to do so only for young able bodied middle and upper class white males. Although or perhaps because it’s main beneficiaries are now no longer African Americans it has proved to be far more popular than the older arguments that tried to justify affirmative action as reparation. But this essay is about reparation and not specifically about affirmative action so I will not attempt to examine the flaws of the new diversity based argument for affirmative action.
5. Reparations for Slavery
This entry focuses on making a case for reparations for contemporary blacks for the enslavement of their ancestors, partly because slavery was the most horrific experience that blacks have endured in America, and the one for which the immediate victims of the experience most clearly deserve reparation; and partly because making the case in question nevertheless presents peculiar, difficult, and interesting philosophical problems. As we will see much of that case will depend on the argument that the injustices blacks endured after emancipation have caused some of the injuries of the slaves to persist into the present. But there is no reason to suppose that these injustices did not themselves cause damages to their victims, quite apart from causing the damages of slavery to persist, and that these damages may also deserve reparation. In fact there is good reason to suppose that arguments to that effect may be more important politically that slave based arguments for black reparations. Andrew Valls and Jonathan Kaplan have published a stimulating essay that focuses less on slavery and more on Jim Crow segregation and systematic housing discrimination as a basis for contemporary black reparation claims. The issues they raise deserve more attention, but I will persist in this entry on the issue of black reparations for slavery because as I hope we will agree it retains its fascination despite its age.
Thaddeus Stevens’s argument for slave reparations was simply that the slave holders had committed serious harmful transgressions against the slaves, who consequently had rights for reparation against their masters that could plausibly be satisfied by some of their masters’ land. Today few would challenge that argument, at least publicly. The argument that many challenge today is that present day African Americans have rights to reparation from the American people or the American government because three hundred years ago the American government permitted the American people to enslave their ancestors. That argument seems to get no support from the undeniable fact that their ancestors had rights to reparations from their masters. People do not have rights to reparation for the wrongful harms others suffer. Two arguments which I have called the harm argument and the inheritance argument attempt to circumvent that difficulty.
The harm argument relies on the idea that the transgressions of slavery initiated an unbroken chain of harms linked as cause and effect that began with the slaves and continues among African Americans to the present day. Therefore since the transgressions of slavery harm present day African Americans they have rights to reparation against those who committed those transgressions. It differs crucially from the inheritance argument because it assumes that slavery’s transgressions against the slaves have harmed present day African Americans but the inheritance argument does not. The inheritance argument relies on the idea that present day African Americans have inherited the rights to reparation that was owed their enslaved ancestors and was never paid.
6. The Harm Argument
Three main objections have been urged against the harm argument. First, that although the transgressions of slavery harmed the slaves, and present day African Americans do suffer from many disadvantages, these disadvantages may not be the result of the transgressions of slavery; they could easily be the result of vast economic and political changes that have occurred since slavery ended one hundred and fifty years ago. As George Sher put it the present harms may not be the “automatic effects of slavery” (Sher 1981: 7). Second, that even if present day African Americans have been harmed by the slaveholders’ transgressions against their ancestors, and have rights to reparation against these slaveholders, such rights can only be pressed against the slaveholders who are now all dead. Third that if present day African Americans demand reparation for the harms that the transgressions of slavery caused them, then since reparation implies compensation they demand to be made no worse off than they would have been had the transgressions of slavery never occurred. But if these transgressions had never occurred present day African Americans would not exist. Consequently the harm argument is incoherent (Morris 1984, Levin 1980).
Fullinwider has reformulated the harm argument so that it avoids the first two objections. His reformulated argument goes as follows: the government after 1865 failed “to vindicate the rights to full and equal citizenship the Civil War Amendments extended to blacks;” but, had that government “vigorously” protected those rights, “the legacy of slavery would have faded considerably if not wholly by now through the industry of blacks themselves”. Consequently if present day African Americans do suffer from various aspects of the legacy of slavery, the real cause of those harms is not slavery, but the governments after 1865, for if those governments had vigorously protected the rights of the freed people and their descendants, the legacy of slavery would have faded and present day African Americans would not be disadvantaged by it (Fullinwider 2004).
Boris Bittker made a similar suggestion. His main argument is that had the goals of Reconstruction not been foiled by the “political settlement of 1877” and the network of Jim Crow laws not been introduced and finally fully authorized by Plessy v. Ferguson in 1896 the “only identifiable residue of slavery today would have been cultural”, and the descendants of slaves and the descendants of slaveholders would lead the same lives (Bittker 2003: 12, 13). In other words though Bittker seems to go a little further than Fullinwider, suggesting that the legacy of slavery would have disappeared completely if the nation had protected the rights of the freedpeople and their descendants, he too concludes that any responsibility for the legacy of slavery that persists today must be attributed to post Civil War governments.
The arguments of Fullinwider and Bittker are a clear improvement on the original harm argument. But they seem to assume that post Civil war governments committed only one transgression against their black populations, namely those governments failed to protect the civil rights of the members of those populations. In fact these governments committed another and quite distinct transgression against their black populations; they failed to make reparation to those populations. These two transgressions are not the same thing. The duty of government to protect its citizens’ civil and political rights is one thing; its duty to make reparation to them if it has wrongly injured them is another thing.
Fullinwider seems aware that protecting civil and political rights is not the same as making reparation. He seems clear that the U.S. government did not fulfill all of its obligations to the Japanese it interred during World War ll just because it released them after the war and protected their civil and political rights after that. But he writes as if he believes that the post Civil war governments would have fulfilled all of their obligations to their black citizens if only they had protected those citizens’ civil and political rights (Fullinwider 2004: 148). Bittker’s oversights on this point are strange. He writes on page 12 of his book that compensation in 1865 to the slaves for their forced or unpaid might have been “strong”, and on page 28 that “compensation in 1865 for blacks’ forced labor would certainly have been appropriate;” But having conceded that monetary compensation would have been in order in 1865, he then drops the point without comment. Interestingly too he seems to think that unpaid labor is the only harm the transgressions of slavery caused the slaves or that merits any mention. This is very strange in a book titled The Case for Black Reparations for of course unpaid labor was perhaps the least of the harms that the transgressions of slavery visited on the slaves. What about reparation for the theft of their liberty?
But Fullinwider’s claim that
Had the federal government done nothing after 1865 except vigorously protect the civil and voting rights of blacks, the legacy of slavery would have faded considerably if not wholly by now through the industry of blacks themselves
suggests that only the governments’ failure to protect the civil and political rights of the freed people and their descendants caused any problem (Fullinwider 2004: 148). An obvious difficulty with this view is that large economic inequalities make it difficult for the government to protect the rights of the poor. That problem aside, Fullinwider and Bittker give no argument to support their view that the freed peoples’ descendants would have recovered from the harms of slavery without the help of reparation if only government had protected their civil and political rights. Fullinwider’s confidence seems to rest on the “immigrant model”, by which he means the path to success taken by the European immigrants who came to America after the Civil War, and with “little to offer but their physical labor”, and “by dint of hard work” eventually “blended into the larger American fabric”. The implication is that the freed people were sufficiently like these immigrants to justify the inference that had government vigorously protected their civil and voting rights then they too by would have blended into the larger American fabric.
But the freed people and their descendants were not very much like the white immigrants arriving from Europe. To say the obvious, slavery is very bad for people. It prevents them from developing the useful dispositions and skills that people tend to develop in freedom. Although the immigrants had had a rough time in Europe—that is why they flocked to America—they were better prepared to take advantage of the opportunities available than the slaves. Consequently they would likely have kept well ahead of the freed people and their descendants even if the civil and political rights of each group were equally protected. The issue is debatable of course. Some black writers, Frederick Douglass, for example, seem to think that human beings are resilient, equipped as they are with an almost ineradicable love of liberty, and consequently the slaves would recover readily from the rigors of slavery if only they were given justice. He liked to say that all he asked for the Negro was “simply justice”, though the contexts always left it unclear how much he included in justice, whether it would involve reparation, and whether he was simply denying that he was not asking for “benevolence” or “pity” for the Negro (Douglass 1865: 283). Alexander Crummell on the other hand seemed to worry about the enduring effects of slavery especially because of the tendency of its victims to remember its horrors, though interestingly Douglass thought that these memories could be bracing (Crummell 1891: 18, 19). The issue of the effects of the memory of enslavement and domination on recovery from the effects of these evils deserves further study. Whatever the results of that study however it does not follow straightaway that the wrongly injured are not owed reparation just because they are resilient enough to recover from the effects of their injuries without it.
The economist Glenn Loury makes the further point that advancement depends on informal contacts that involve the sharing and transfer of genuinely useful information and skills among people who enjoy what used to be called “social equality”. But social equality cannot be secured by even the most rigorous protection of the civil and political rights of the freed people; on the contrary such protection can help social inequality to persist since it entitles individuals to choose their friends and associates even if their choice is determined by color prejudice. Since color prejudice remained strong after the Civil war the white immigrants would more readily associate with well placed and well educated locals and learn useful information and skills from them. Finally since social equals tend to marry each other rather than their inferiors, and since immigrant whites were more likely than the freed people and their descendants to become the social equals of prosperous native whites, they were also more likely to marry such individuals and thus to gain access to their wealth, much of it incidentally inherited from the spoils of slavery.
Bittker seems aware that the official enforcement of civil and political rights might not nullify the effects of personal prejudice. Thus he asks whether “personal” prejudice without official segregation would have produced segregation, “first in the home, then in Mrs Murphy’s boardinghouse, and then in business and politics”. This issue is of decisive importance for his implied contention that even without reparation blacks would have made themselves equal to whites if there had been no Jim Crow legislation. He rejects William Graham Sumner’s maxim “law-ways cannot alter folkways” which implies that segregation and prejudice could have persisted without the help of Jim Crow laws, but so far as I can see without given any argument to show that the maxim was mistaken. He says simply that he takes it as a “working hypothesis” that
statutes, ordinances, and other official actions have been the predominant source of the racial discrimination that has blighted our public and private life,
given that we have no science
capable of producing a model of the United States as it would have been if blacks had come here as voluntary immigrants rather than as slaves, or if emancipation had been followed by
an integrated society (Bittner 2003: 26).
The many and various considerations just canvassed suggest that Fullinwider and Bittker are far too optimistic in supposing that the descendants of the freed people, without reparation, would have achieved parity with the descendants of the immigrants if only their civil and political rights had been protected. In any case the issue they raise is a distraction from the central question whether African Americans are owed reparation. Achieving parity with the descendants of immigrants is not the same thing as receiving the reparation one is owed. The point of reparation is not to make people equal to others; reparation is not defined as making the wrongly harmed equal to others. In fact, equality has little to do with reparation. People deserve reparation when they have been harmed by transgression but a person may be harmed as a result of transgression and may therefore have a right to reparation and yet be better off than others. Similarly a person may be worse off than others without having suffered from any harm or disadvantage for which he deserves reparation. If reparation necessarily requires compensation it requires that people be put as far as possible in the condition they would have been in had they not been wrongly injured. This may make them equal to others, but it may not. It can leave them worse off than others and it can also make them better off than others. Some philosophers may protest that we should not allow claims for reparation to get in the way of an ideal egalitarian society, but of course their position is as bad as the utilitarian arguments they disparage that rights may and should be violated in order to maximize utility.
But it is now time to consider the third main objection to the harm argument. This objection let us recall is that making reparation to the present black population for the harms that slavery caused it is impossible because if slavery had never occurred the present black population would not exist. This problem is now known as the non-identity problem. This difficulty might seem to reappear in the revised harm argument I have just described. For although this argument does not call for compensating the present black population for the harms that slavery caused it, it may seem to call for compensating the present black population for the harms it suffers because of policies enacted and enforced before it was conceived. Given that these policies would have affected who was conceived in succeeding black populations, had they not occurred the present black population would not exist.
The following discussion shows how this difficulty can be avoided. Imagine two slaves, Tom and Beulah released from slavery. They were released from slavery but the government continued to wrong them in at least two ways: First, by preventing them from exercising rights guaranteed to every citizen; second, by violating their rights to be compensated for the harms that it had caused them by supporting their enslavement. And both these wrongs probably harmed them. Obviously preventing them from voting or going to school probably harmed them; and the harm that often results when one’s right to be compensated is violated is an additional harm, on top of the harm caused by the first violation of right. If you owe me a hundred dollars to compensate me for wrongly breaking my arm, you wrong me again by refusing to give me what you owe me, and you might owe me another thousand dollars for the harms that second wrong might cause me, for example going around for a month with the pain and inconvenience of an unfixed broken arm. Now the government wronged Tom and Beulah in the two ways mentioned as soon as it caused them to be released from slavery and before Beulah conceived any child; but it also continued to wrong them in these ways after the conception of their daughter, Eulah. These wrongs to Tom and Beulah almost certainly harmed them by forcing them to remain longer in the poverty and ignorance that slavery had put them in. But it is more germane to the present argument that the wrongs also almost certainly harmed their daughter Eulah. They harmed her by keeping her parents in poverty and ignorance and by therefore also keeping her in ignorance and poverty. They also harmed her by causing her to be raised by parents with the various disabilities that the experience of slavery normally causes its victims. And if she acquired these disabilities from her parents by imitation and necessity, and if these disabilities harmed her, the government’s wrongs caused those harms too. If wrongdoers must make reparation for the damages their wrongdoing causes other people then the government must make reparation to Eulah.
The argument is not that Eulah has a claim to the compensation her parents Tom and Beulah’s were owed and never paid. If that were the argument we would have an inheritance argument, not a counterfactual argument. Eulah’s claim for compensation is for harms she herself suffered. And she can rightly press that claim against the government. It is not as though her parents could have done better by her but chose not to. The government’s wrongs prevented them from doing better by her. They had no choice but to raise her in poverty and ignorance. The government could have given them a choice if it had compensated for their wrongfully caused harms, or allowed to recover from them. But it did not. Second the amount of the compensation she is owed does not depend on the amount of compensation they were owed. It depends on the harms she suffered. Though she suffered those harms because they were harmed and not compensated, compensating her for her harms may be much more, (or much less), than compensating them.
Third, she may have an inheritance based claim to their compensation. The fact that she was harmed because they were not compensated and can claim compensation for that harm does not mean that they lose their claim to be compensated for their harms. If they were never compensated she may therefore inherit a right to their compensation. The counterfactual argument is compatible with the inheritance based argument.
Fourth, her claim for compensation is not confounded by the argument that she would not exist had the wrongs that caused her harms not occurred. Those wrongs are not the wrongs of slavery, which occurred before she was conceived, and indeed were among the causes of her being conceived. And they are not the wrongs that government committed against her parents after it released them from slavery and before she was conceived. They are the wrongs that were all committed after her conception. They are the wrongs of not protecting her parents’ rights and failing to compensate them for the wrongs already committed against them. Had those wrongs not been committed, she would have lived in less straitened conditions, and would have been less constrained to imitate and duplicate her parents slavery induced qualities and habits.
Nahshon Perez has mounted a rebuttal of the argument to avoid the non-identity problem that I have just presented. He calls that argument the “timing argument”. Perez argues that the timing argument fails to distinguish two different arguments, one for restitution and one for compensation. He does not challenge the restitution argument, but claims that the compensation argument fails. This is because, he argues, a person owes compensation for the damage done to the victim/descendant from an earlier wrong for which he is culpable, but
by hypothesis the original wrong is over, all the original wrongdoers have passed away; current persons have not wronged descendants of victims of the distant original injustice. (Perez 2014: 212)
But in my version of the timing argument although the crime of slavery has ended and its main wrongdoers are all dead, new wrongdoers have taken their place, committing new crimes that ensure that the damages caused by the earlier crime of slavery persist, and it is these new wrongdoers who are required to compensate the descendants of the slaves. As I noted immediately after slavery ended these new wrongdoers were the former slaveholders now in the guise of exploiting capitalists, and committing new crimes that prevented the ex-slaves from recovering from their ordeal in slavery; for example by refusing to compensate their former slaves and preventing them from exercising the rights guaranteed to all citizens. Of course some of these crimes were committed before their ex-slaves had conceived any children, and consequently might have helped determine who the children they conceived were. But the crimes in question continued after their slaves conceived their children, in particular Eulah in my example, and could therefore not have helped determine that Eulah was conceived. And Eulah is claiming compensation only for the damages caused by the crimes that were committed after she was conceived. Had those crimes not been committed she would still have been conceived, and consequently her claim for compensation for the damages they caused her is not incoherent.
But suppose that a tenacious skeptic raises the following objection: the timing argument relies on the two crimes that I called the “later” crimes; but one of these two later crimes, the crime of refusing to compensate Tom and Beulah for their enslavement, seems impossible to commit unless the first crime of slavery was already committed. A person cannot commit the crime of refusing to compensate his former slaves unless he had former slaves and consequently had already committed the crime of slavery. Consequently if Eulah is claiming compensation for the harms she suffered because Tom and Beulah were not compensated for being enslaved, she is claiming that Tom and Beulah should be compensated for the harms they suffered as a result of being enslaved. That is, assuming that Tom and Beulah would not have been enslaved if there had been no slavery, she is claiming they should be brought to the condition they would enjoy if there had been no slavery. But if there had been so slavery, Tom and Beulah would never have existed. And if Tom and Beulah had never existed, then Eulah would never exist. Consequently the non-identity problem persists.
This attempt to revive the non-identity problem does not affect the second of the former slaveholders “later” crimes, namely, their preventing their former slaves from exercising the rights guaranteed to all citizens; the former slaveholders could have committed that crime without having first committed the crime of slavery. But it seems to affect the first of the former slaveholders’ later crimes, namely, failing to compensate Eulah for the harmful consequences she suffered because the slaveholders refused to compensate her parents for the damages they suffered as a result of being enslaved. Certainly the slaveholders could not possibly have committed that crime if they had not already committed the crime of enslaving Eulah’s parents. But this attempt to revive the non-identity problem ignores the difference between claiming compensation for the descendants of slaves for the evil consequences they suffered because of the enslavement of their parents and ancestors; and compensating slaves for the evil consequences they suffer because of their own enslavement. The first sort of compensation may run afoul of the non-identity problem, but the second does not. Compensating slaves for the harms resulting from their own enslavement involves compensating them for the pain, exploitation, and loss of liberty that comes with being a slave. It does not involve any attempt to compensate slaves for the harms they suffered because their parents were enslaved and not compensated. Such an attempt would raise the non-identity problem. But the timing argument for Eulah’s right to compensation does not claim that Tom and Beulah’s former masters should compensate Tom and Beulah for the harms they suffered because their parents were enslaved. It claims only that Tom and Beulah’s former masters should compensate them for the harms they suffered because they, Tom and Beulah, were enslaved. And although they wronged and harmed Tom and Beulah by never compensating them, my argument for Eulah’s right to compensation relies only on the harms they suffered after Eulah’s conception. That argument therefore raises no non-identity problems.
The case for Eulah’s compensation can be repeated for her children. The government did not compensate their mother; this injustice impoverished her mother, and although this began to harm her before her children were conceived, they began to harm her children too as soon as they were conceived; and they therefore have a claim for compensation against the government for the harm its injustice of failing to compensate their mother after they were conceived caused them. Their claim for compensation is not a claim to inherit the compensation she was owed for her harms, but a claim for compensation for their own harms. The amount of their compensation does not depend on the amount of her compensation, but on how much the failure to compensate her harmed them. I suspect that it will be greater than her compensation, given that there are many of them and one of her. In addition to their claim for compensation for their injuries, they may also have an inheritance based claim for the compensation she was owed but never paid. Their claims for compensation are for harms they themselves suffered from, but some of these harms would have their origin in slavery since they suffered them because their mother lived in straitened conditions, and she lived in straitened conditions because her parents, Tom and Beulah were harmed by slavery, prevented from recovering from these harms and never compensated. And again, there is no danger that their grandchildren would fail to exist had the injustice that caused their harms not occurred, for that injustice was not slavery or the failure to compensate their grand parents which occurred long before they were conceived and were probably among the conditions for their conception, but the failure to compensate their mother, which we can suppose occurred after they were conceived. No innocent is asked to make compensation since every new generation of whites did its part in holding down every new generation of blacks at or near the level to which their slave ancestors had been reduced. Proceeding in this way we can arrive at the present generation of African Americans. They are entitled to seek reparation from the government for the harms it caused them by failing to compensate their parents.
7. The Inheritance Argument
The inheritance argument for black reparation says that the freed people had rights to reparation for their injuries; that they held these rights against the slave holders and also against the state and federal government for failing in its duty to protect them from the slave holders; that these rights were never honored; and finally that they passed by the right of inheritance to present day African Americans who are their descendants and heirs.
This argument avoids the objection that the present black population would not exist if their ancestors had never been enslaved. As Thompson puts it
The claims of descendants depend on them being the heirs of their forebears—not on their being the particular individuals they are. The fact that they might not have existed if that injustice had not been done does not undermine their claim. (Thompson 2002: 108)
And each premise seems plausible. When people die their rights to their property are normally passed on to their heirs (Boxill 1972: 113–122; Kershnar 1999: 95–101). The reparation owed to the freed people was their property; it was never in their physical possession of course, but obviously something need not be in your possession to be your property. Neither did the freed people abandon their inheritance. Laws and guns very forcefully kept it from them. Consequently it should pass, by right of inheritance, to their descendants, the present black population.
Two important objections against the inheritance argument are: first that it relies on the counterfactual claim that the freed people and their descendants would have held on to their reparation had they received it; and second that it demands that people make reparation for the injuries of a crime that they could not have committed. Let us begin with the second.
Locke’s discussion of a lawful conqueror’s rights to reparation suggests how to solve it. “The right of Conquest”, Locke claims,
extends only to the Lives of those who joyn’d in the War, not to their Estates, but only in order to make reparation for the damages received, and the Charges of the War, and that too with reservation of the right of the innocent Wife and Children. (Locke 1689: sec. 180)
Locke’s claim is that the lawful conqueror has rights to reparation from the estates of those who unjustly waged war against him, though some part of these estates should be reserved for their wives and children. The clear implication is that the wives and children would have gotten a larger part of the estates in question had their husbands and fathers not harmfully transgressed against the lawful conqueror; but Locke would be guilty of self-contradiction if he had meant that the wives and children were being forced to make reparation for the harms their fathers’ and husbands’ the crimes caused. His view was that when people unjustly harm others, a portion of their estates may be used to make reparation to the people they harmed, and as a necessary result their children cannot inherit that portion of their estates.
The following argument parallels Locke’s argument: the slave holders harmed the slaves. Consequently the slaves had rights to reparation against the estates of the slave holders; these rights reduced the extent of the estates that the slave holders’ children would otherwise have inherited from them; the slaves were forcibly prevented from exercising those rights; but it is absurd to suppose that people lose rights just because they are forcibly prevented from exercising those rights; consequently the slaves retained their rights against the estates of the slave holders; present day African Americans are their heirs; consequently present day African Americans have rights against the estates of the slave holders. This argument does not prove much. Even if many descendants of the slave holders can be identified, proving that they inherited their property from their slave holding ancestors seems hopeless. But the argument can be improved. The first step is to see that the slaves did not have rights to reparation only against the slave holders. This step may seem to follow easily from Locke’s famous theory that residence in a state is tacit consent to it (Locke 1689: sec 119). This theory applied to the case of the lawful conqueror might seem to commit Locke to the view that the lawful conqueror had rights to reparation against all members of the state that waged the unjust war against him. But in fact Locke explicitly denied that it did. “The people” he said gave
to their governors no power to do an unjust thing, such as is to make an unjust War, (for they never had such power in themselves:) They ought not to be charged as guilty of the Violence and Injustice that is committed in an Unjust war, any further than they actually abet it. (Locke 1689: sec 179)
And he identified those who “actually abet” and unjust war as those who “assisted, concurred, or consented”, to that war (Locke 1689: sec 179). It may seem that Locke is guilty of self-contradiction here at least if we suppose that to consent to something, even tacitly, is to give the “power”, that is, the right to do it. But Locke evidently did not suppose that to consent to another’s action is to give the other the right to do it; and no one else supposes that it does, except perhaps confused philosophers. For such a supposition implies that one could not consent to another’s unjust action since of course one cannot give another a right to act unjustly, but of course people can and do often consent to another’s unjust action. To consent to another’s action is “to make oneself a partner in the other’s action and to accept a share in the responsibility for it” (Boxill 1993: 96–99). This suggestion may seem to leave us with the conclusion that if residence in a state is tacit consent to it, as Locke’s theory says, then all the residents of a state must have accepted responsibility for the state’s actions, including its unjust wars, and consequently that the just conqueror must have rights to reparation against all residents of the state. But as we have seen Locke denies that the lawful conqueror has such rights. The solution to this puzzle lies in a peculiarity of most signs of tacit consent. The peculiarity is that signs of tacit consent are normally conditions people have good reason to be in other than to give their consent. Thus residence in a state is a sign of tacit consent to it because most residents of a state have good reason to reside in the state other than to give consent to it. Since a sign of consent would be coerced, and consequently not a sign of consent if not making it is impossible or very costly, it follows that every sign of tacit consent, like residence in a state, must be such as to allow people to make the sign, while withdrawing their consent by making some cheap and easily performed sign of dissent. This reasoning suggests how Locke can say both that residence in a state is tacit consent to its actions and that the lawful conqueror has rights to reparation from only those who “assisted, concurred, or consented”, to their state’s unjust wars against him. All residents of a state have tacitly consented to its actions but only those who fail to make some sign of dissent to its unjust wars, have consented to its waging these wars, at least if there are signs of dissent that are relatively easy to make and are not too costly.
Returning to the question of reparations for slavery, Americans prior to the Civil war knew that their government permitted and supported slavery and also knew that slavery was a crime. The slave holding states certainly tried to conceal the full horrors of their “peculiar institution” but the evidence suggests that their efforts were not successful. Consequently, since few white Americans expressed dissent from their government’s complicity in the crime of slavery, although it did not punish such dissent, it seems fair to conclude that most white Americans consented to their government’s complicity in the crime. In Locke’s language they “assisted, concurred, or consented” to the government’s injustice against the slaves. Therefore still following Locke, it follows that the slaves had rights to reparation against the entire white population of the United States for the damages that their enslavement caused them. This argument is perhaps open to the objection that there was in the period of slavery more than a little dissent to the government’s complicity in the crime of slavery; certainly the abolitionists strongly expressed their dissent. Or alternatively it could be objected that dissenting from the government’s complicity in slavery in the Deep South did carry considerable costs including costs not necessarily imposed by the government. Finally the argument also requires a fuller account of what residents of a state must do in order to make appropriate signs of dissent from the injustice of their government, and consequently to avoid being accused of consenting to that injustice. Presumably confiding to a few friends that one was opposed to slavery would not be enough. But if these problems can be satisfactorily settled, then since the slaves had titles to reparation against the estates of those who assisted, concurred or consented to their enslavement, they would have titles to reparation against practically the entire white population, not just against the estates of the slave holders. This reparation was never paid. Instead each white generation specified that only whites of the succeeding generation were permitted to own, or compete for, or be educated by, the assets it was leaving behind. Since the slaves had titles to reparation against these assets, and the present generation of African Americans is the slaves’ heir, the present generation of African Americans has inherited titles to a portion of the assets held by the present white population. This includes the white immigrants who arrived in the U.S. after the abolition of slavery to take advantage of opportunities, funded by assets the slaves had titles to, or for the education the slaves and descendants were prevented from getting, or to take natural assets including land that the slaves also had titles to. The fact that they competed for these opportunities and worked hard misses the point since many of these “so called” opportunities had already been inherited by and were the property of, the slaves’ heirs.
Locke put a limit on the right to reparation. In the case he discussed the lawful conqueror’s right to reparation was limited by reservations made for the rights of the wife and children of those engaged in or consented to the unjust war against him. As Locke put it
The Conqueror has a Title to Reparations for Damages received, and the Children have a Title to their Father’s Estate for their Subsistence…What must be done in the case? I answer; The Fundamental Law of Nature being, that all, as much as may be, should be preserved, it follows, that if there be not enough fully to satisfy both, viz, for the Conqueror’s Losses, and the Children’s Maintenance, he that hath, and to spare, must remit something of his full Satisfaction, and give way to the pressing and preferable Title of those, who are in danger to perish without it. (Locke 1689: sec.183)
Thus Locke appeals to the Fundamental Law of Nature which requires that all or as much as may be should be preserved in order to argue that that the lawful conqueror’s right to reparation must give way if it comes into conflict with the rights to subsistence and maintenance of the children of those who owe him reparation. But Locke does not say that the lawful conqueror’s right to reparation is trumped by the children’s right to inheritance; on his account, it is the right to subsistence that trumps the right to reparation when the two rights conflict. When Locke limits the conqueror’s right to reparation he does so in order to accommodate the rights to subsistence of innocent children. He is concerned that such children will die if he presses the right to reparation too hard, not that they will inherit very little.
Do these reasonable limitations on the right of inheritance have any relevance to whether African Americans have a right to inherit the reparation owed their slave ancestors? Here it is important to note these limitations do not abolish or cancel the right to inheritance. They do not imply, that is, that there is no right to inherit at all. They allow that there is such a right, and that it holds in normal circumstances, but that it fails to hold or is outweighed when allowing it to hold would make innocent people destitute, or create large inequalities that are likely to lead to exploitation and domination. In other words we cannot set aside the inheritance argument just because it depends on the right of inheritance. We can set aside the inheritance argument aside only if implementing it would make innocent people destitute or create large inequalities that are likely to lead to their exploitation and domination. But would implementing the inheritance argument have these results? It would not. The slaves were horribly harmed by slavery, but making reparation to them would not have required turning over a continent to them. It would have called for no horrendous uprooting of populations, or driven anyone into poverty, or created morally outlandish inequalities. The slaves would not suddenly have become the masters and the whites their subordinates. The nation could have made reparation and suffered mild discomfort at worst. As for the right of inheritance of their heirs, we must remember that it is not limited by the mere length of time between benefactor and heir. The right of inheritance is limited by the dangerous and morally repugnant inequalities that would result from honoring it. These could appear after one generation, or fail to appear after ten generations. We are certainly not speaking here of a statute of limitations. It would be wrong for someone’s immediate heir to insist on his right to inherit his father’s goods if this would cause undue hardship to others, or put him in a position to oppress them. But it would be right for someone’s distant heir to insist on her right to inherit his goods if this could save her from hardship or oppression at the hands of her debtors. But is not this latter case exactly similar to that of African Americans in the U.S.? Would they not save themselves from hardship and oppression at the hands of their debtors if they insisted on their right to inherit the reparation that was owed their slave ancestors and never paid?
Jeremy Waldron has objected to arguments for reparation for “historic” injustices specifically Europeans’ theft of Australia, New Zealand, Canada and the U.S. from their original owners the Aborigines, Maori, and Native Americans (Waldron 1992: 4–28). His objection is that the historic wrongs of the ancestors of the Europeans now in the territories have been “superseded” (Waldron 1992: 24). Possibly the objection can be raised against the inheritance argument for black reparation.
Waldron uses the following example to illustrate what he means by an historic wrong being superseded. Suppose he says that there are plenty of water holes on the savanna and two groups P and Q each have a waterhole, but
motivated purely by greed, members of group Q descend on the water hole possessed by group P and insist on sharing that with them. (What’s more they do not allow reciprocity; they do not allow members of P to share any water hole that was legitimately in the possession of Q.) That is an injustice. But then circumstances change, and all the water holes of the territory dry up except the one that originally belonged to P. The members of group Q are already sharing that water hole on the basis of their earlier incursion. But now that circumstances have changed, they are entitled to share the water hole; so that their doing so no longer counts as an injustice. It is in fact part of what justice requires. The initial injustice of Q against P has been superseded by circumstances. (Waldron 1992: 25)
What does Waldron mean when he says that circumstances have changed so that the initial injustice “has been superseded?” The meaning his example suggests is that although the members of Q acted unjustly when they first shared P’s water hole, they do not act unjustly now when they share P’s water hole; and this is because circumstances have changed. In the changed circumstances the members of P and Q are now joint owners of the waterhole. Waldron indicates that this follows from one of the conditions Locke laid down as necessary for taking something as property, the Lockean proviso, as Nozick famously put it (Nozick 1974: 175; Locke 1689: sec 27). According to the proviso the water hole used to be P’s waterhole when circumstances were such that it was permissible for P to make it is property. But circumstances have changed so that it is no longer permissible for P to make the waterhole his exclusive property. The present circumstances make the waterhole the joint property of P and Q.
This argument seems persuasive if we suppose that the only alternative to making the waterhole the joint property of P and Q is for P to prevent Q from using its water since it that case Q would die very painfully. But there are other alternatives. Members of P (Ps) can generously allow the members of Q (Qs) to use the water; or they can sell the water to the members of Q; or they can rent Q a piece of land next to the waterhole. These alternatives may be ruled out by Locke’s apparent opposition to arrangements that put some people in a position of extraordinary dependence on others. For example he argued that a beggar has a “right” to a portion of a rich man’s surplus when she must have it in order to survive. If so the Qs must have rights to an adequate supply of the water in P’s waterhole. Otherwise if the Ps with ostensible generosity allowed Qs to drink they could also have demanded demeaning behavior from the Qs in exchange; or if they sold water to the Qs they could raise its price as much as they liked; and so on. But in any case there are alternatives to the joint ownership of the waterhole by the Ps and Qs that do not turn the Qs into P’s dependents. We could for example divide the waterhole so that the Qs get an adequate supply of water and are not dependent on the Ps.
In that case the entire case for supersession would seem to rest on the Lockean proviso and its alleged prohibition of claiming unowned stuff as property when there is not enough and as good left over for others. I say “alleged prohibition” for it is not at all clear that Locke’s words amount to such a prohibition. However I will not dispute the issue because the supersession thesis fails even if we allow the prohibition. To see this let us agree that the Ps and Qs are now joint owners of the waterhole and that the Ps cannot demand that the Qs depart leaving them the waterhole’s sole owners. Our agreement does not imply that we also agree that the Ps cannot demand reparation from the Qs for the damages that the Qs earlier wrongly caused them. That would be absurd because it implies that the Ps and the Qs had always been joint owners of the waterhole, but by assumption the Ps and Qs were not always joint owners of the waterhole. In particular, by assumption, the Ps were once the sole owners of the waterhole when the Qs attacked them and stole their water. This foregoing sketch is meant to parallel the case of the Europeans and native peoples in New Zealand, Australia, and the Americas. For convenience let us speak of the Europeans and the Maoris in New Zealand. We concede that these two people are now the joint owners of the land mass of New Zealand. The Maoris cannot demand that land mass back as reparation because they are no longer its sole owners. They used to be its sole owners, but circumstances have changed and now they are only its joint owners. No one can demand that anyone leave. But that concession does not make the injustice of the European conquest two hundred years ago disappear into thin air. New Zealand may not now belong exclusively to the Maori, but it once did, and when it did, the Europeans did then injure them unjustly. If those injuries persist in the Maoris’ descendants because the European conquerors and their descendants did not make reparation to the original Maoris, their descendants have rights to reparation against the Europeans’ descendants for their injuries, even if they do not have rights that the Europeans’ descendants leave New Zealand to them. To put the point in a different way, the fact that restitution is no longer possible and morally mandatory does not imply that reparation is not still possible and morally mandatory. Restitution, the return of a stolen item to its rightful owner, is often a part of making reparation to the victim of the theft, but as I stressed earlier it is neither necessary nor sufficient for such reparation. It is not sufficient because if I steal your bicycle and then return it to you, though I have made restitution I have not made reparation since the damages you suffer as a result of my theft may be more that the loss of the bicycle; and restitution the return of your bicycle may not cancel, undo or erase the damages you suffered as a result of my theft. And restitution is not necessary for reparation because while the loss or destruction of a stolen item may make its restitution impossible, it does not make reparation for the loss of the item impossible or obligatory. If the bicycle I stole from you is lost restitution is impossible. But it does not follow that reparation is impossible. I can still make reparation to you by providing you with the money to buy another one.
The distinction between restitution and reparation resolves another case that Waldron presents us with evidently in order to weaken sympathies for reparation for historic injustices. The case involves the theft of a car that ends up years later the treasured possession of the thief’s daughter who has no idea that it was stolen. In the meantime the car’s original owner has eventually outgrown his attachment to it and gotten many other cars. The inference that we are invited to draw is that it would be wrong for him to compel the thief’s daughter to return the car to him, given that she has invested so much of her life in it and he has lost interest in it. Perhaps; but just because it would be wrong of him to demand restitution, it does not follow that it would be wrong of him to demand reparation; that his rights to reparation are somehow “superseded”. This is an entirely different question. The owner may act wrongly in insisting on restitution; maybe he should allow the thief daughter to keep the car. But it does not follow that he cannot demand reparation from the thief for the losses he suffered as a result of the theft of his car.
These results should make it obvious that the supersession argument cannot nullify claims for reparation for historic injustices. To consider the example of New Zealand, perhaps restitution of the land mass of New Zealand to the Maori is out of the question. Perhaps justice cannot demand that Europeans leave New Zealand to the Maori. But it does not follow that justice does not demand that the Europeans make reparation to the Maori for violating their rights and injuring them when New Zealand belonged to them. Theft injures the victim by depriving him of the thing that was stolen from him; but it also injures him by depriving him of the benefits that he was going to earn and enjoy because of his possession of that thing. For the reasons we have surveyed he may lose his rights to restitution; the thing for example may be lost or destroyed. But it does not follow that he therefore also loses his rights to reparation. Arguments for those rights have to deal with the various objections to historic reparations reviewed in this entry, but they are not undone by the supersession argument.
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A Response to Bernard R. Boxill’s Lockean Argument for Reparations
Philosophers who ignore the extensive evidence of Locke’s racism and yet still cling to the misguided notion that Locke intended his principles of liberty to be applied universally to all ‘men’ not only are being false to the past and false to the present efforts to shed light upon the history of the racism of Western philosophy, but they are also being false to the future, insofar as efforts to establish a society free from racist institutions will be thwarted until there is greater honesty about the past.” –
Race and Racism in Modern Philosophy - "The Contradictions of Racism: Locke, Slavery, and the Two Treatises" - "Robert Bernasconi & Anika Maaza Mann"- edited by Andrew Valls
The issue of reparations for harms done as a result of slavery and Jim Crow laws is one rife with problems to be overcome. Problems arise when asking whether reparations should be made, who (or what) should make them and how any culpability for harm should be distributed, to whom reparations should be made, the amount of reparations to be made, and in what manner they should be made, to name just a few. Bernard Boxill makes two arguments that reparations should be made in A Lockean Argument for Black Reparations using parts of John Locke’s Second Treatise of Government and an appeal to natural law (as opposed to positive law or any other moral or legal philosophy) to justify his position. Boxill’s arguments that the US government should make reparations to African Americans rely on an ad hoc point of causation while employing sections of Locke’s work that fail to completely incorporate Locke’s theory, leaving unaddressed contradictory or mitigating sections of Locke’s essays. Furthermore, Boxill’s use of Locke’s just conqueror to justify reparations is incoherent as it stands, relying on assumptions that are not entirely clear and only serve to weaken his argument when that section is given a reasonable interpretation of who is and is not the unjust ruler, just conqueror, and their heirs and assignees. By taking into account the aforementioned issues, addressing those sections of Locke that Boxill leaves unaddressed, and by showing how the just conqueror analogy he uses actually hurts his argument, this paper will show that Boxill’s arguments are not as strong as they may seem.
The two arguments addressed are the counterfactual and the inheritance arguments. The counterfactual argument is one that concludes present day African Americans have a just claim for reparation because they are harmed as a result of the enslavement of their ancestors. The inheritance argument asserts reparations are justified, though current harms are not necessary and the reparations are for the harms done to their ancestors during slavery and Jim Crow laws, and the descendents have inherited the rights to those unpaid reparations (68). The counterfactual argument is such that if there is ever a time when no harms are being, or have been, suffered by the potential claimants then there would be no right for reparations. The inheritance argument does not account for current harms so heirs would have a right to reparations in perpetuity regardless of harms they may suffer themselves. Boxill argues that it seems reparations cannot be sought from those individuals who perpetrated the original harm of slavery, but asserts that a solution might be to hold the U.S. government and individual state governments culpable for such harms (65). Boxill’s possible solution, though not fully supported by Locke, is a requirement for both his counterfactual argument and for his inheritance argument.
Counterfactual Argument Rebuttal
Boxill continuously forces a perspective that slavery, specifically the effects of US laws that permit the institution, is the first cause. He addresses a causal chain of harms that will need to be unbroken and his first link in the chain is, mistakenly, the US government: “The injustice or injustices that caused her harms was the U.S. Government’s failure to compensate her parents after her conception, as well as the unjust policies it enacted and enforced to prevent them from recovering from the effects of slavery” (89). Harms suffered by African Americans today could stem from many potential sources; their own bad decisions, any number of racist behaviors they have been victims of over the course of their lives, the lingering effects of bad social policies (both federal and state) including the criminal justice system, the lingering effects of Jim Crow laws, and the effects, whatever they may be, of their ancestors enslavement and loss of wealth and opportunity as a result of the institution, as Boxill correctly points out. But the causes do not stop there. They not only continue from the time of US sanctioned slavery, they continue ever farther back into history to the social institutions of European colonization and imperialism that accepted slavery as a norm in the first place, to the African nations or tribes who may have been complicit in any way to the institution, and to the even more ancient idea that slavery was ever justifiable in the first place. These *causes* should also serve to distribute the culpability for any harms done as well as dilute the liability of any individual agent for any future reparations even further, which Boxill does not address in his essay. The problem here is not with whom or what caused the harms suffered today, but with what was the original cause of those causes. If the moral argument is to be made for reparations to be paid by the US government, it should be made with a full understanding of the idea of original cause. If original cause is irrelevant then the necessary question becomes what justifies any single interim cause as the cause which justifies reparation so that it is not merely an arbitrary existential target. Furthermore, if one assumes the harm is from a long chain of causal agents then any reparations should be apportioned between the agents as no single agent can be considered the sole cause of the harms done.
It seems a strong argument can be made that the result of slavery and Jim Crow laws has been harm for not only African Americans but all the citizenry of the country (admittedly to different degrees and in different forms), at the very least by staining their moral conscience and resulting in the necessity to make reparations. Had those who are eventually deemed culpable for the harms and the resulting reparations been operating from a position of fully informed consent at the time of the actions which brought harm to themselves and others they would not have made the decisions they made. For all practical purposes the moral normativity that accepted and justified slavery as an institution existed as a result of ignorance that is not present now, and is therefore like holding a two year old child culpable for accidentally harming an adult, at least as far as the relationship between the actor and ignorance is concerned. Furthermore, if it is true that there has also been some harm to at least some of the rest of the population, who or what should be held accountable for those reparations? Should the governments or the people of the United Kingdom, Spain, France, Portugal, or descendents of those who were complicit in the African kingdoms during the period of transatlantic slavery be held accountable? If so, and if this is morally correct, then they would have the same argument for whatever agency influence they were under that led them to act in such an immoral way, at the time somewhat unknowingly, or so common understanding of what was deemed right and wrong would lead many to believe based on the normative views held during those times. How far back should this moral culpability go? Ideally, and for the sake of moral consistency, it should end up finding some causal agent in the mists of antiquity. If those earlier damages may not be rectified and they were the direct causes of later injuries and harms, it seems somewhat unfair to demand reparations from a party who is also owed reparations for the same or similar morally reprehensible acts who cannot be made whole. The reparations made from a similarly damaged entity unable to be repaired could be considered an additional injustice in a whole string of injustices. All of the above is valid as an assemblage of potential criticisms, notwithstanding any arguments dealing with the role of determinism, if any.
If one sees this argument as specious, ask what harm slavery or Jim Crow laws have done to all African American embryos and newborns. If damage has not been done to all, then an argument can be made that newborns who have suffered harms have suffered those harms not as a result of slavery or Jim Crow laws, but from intervening causes in the lives of the parents, grandparents, or other ancestors of the child, and not from the two causal elements of slavery and racist laws. Another argument at this point might be one that claims secondary or tangential harms stem from those two causal targets, and reparations should be made for them. However, if those elements are deemed secondary or tertiary causes of harms, then the newborn should be able to demand reparations for the harms done by their ancestors as those would be the primary causal agents in this case. For some reason, this argument has not been found to be addressed in any of the arguments for or against African American reparations. It also could result in the argument that just because one agent in the causal chain is unable to receive reparations it does not absolve it of making reparations for its part in the harms further down the causal line. This is a stronger argument from a deontological standpoint (though distribution of liability for harms would still need to be a consideration), but not necessarily from a utilitarian or natural law perspective.
Inheritance Argument Rebuttal
Notwithstanding causal culpability arguments, Boxill relies on an appeal to Locke’s position on the right to inheritance in order to justify his position for reparations. In his argument pressing for reparations to be paid by the state and federal governments, he addresses the idea that the governments now may arguably be different from those which were around during the time of slavery. However, he proceeds to address the idea that the governments “are in all relevant respects the same governments that now exist” (70). What is relevant is that nations and governments exist over long periods of time, sometimes centuries, and that their identities cannot be tied to the identities of those who make up the governments (71). This, however, does not show what those relevant aspects are. Instead, it is a way of disputing the idea that the governments are so different that the culpability for reparations does not presently hold true. Boxill goes on to claim that this, however, is not enough. He must also show that the citizens have inherited more than they needed to merely be free. Boxill admits that his ideas, at this point, require the inheritance argument to be repaired in order to justify the position he has taken. For this he refers to sections 179, 180, and 183 in Locke’s The Second Treatise of Government.
Locke’s basic argument in those sections is that a lawful conqueror acquires rights and powers over the citizens of the conquered country. Section 179, speaking of the despotical power the conqueror has, states that it is, “Secondly…only over those, who have actually assisted, concurred, or consented to that unjust force, that is used against him” (111). Boxill goes on to quote a small part of section 178, without referencing, which asserts the lawful conqueror “has an absolute power over the lives of those, who by an unjust war have forfeited them; but not over the lives or fortunes of those, who engaged not in the war, nor over the possessions even of those, who were actually engaged in it” (111). As Boxill rightly points out, this is a limiting factor and is more succinctly put when Locke states in section 182 that by conquest one has “a right over a man’s person to destroy him if he pleases, has not thereby a right over his estate to possess and enjoy it,” and, “The right then of conquest extends only to the lies of those who joined in the war, not to their estates, but only in order to make reparations for the damages received, and the charges of the war, and that too with reservation of the right of the innocent wife and children” (113-114).
Boxill applies Locke’s statements to the question of reparations by positing;
1) Slaveholders did, in fact, harm slaves.
2) Slaves had a right to reparation from the slaveholders.
3) The right of reparation extended to the estates of those who assisted, concurred, or consented to the transgression which caused the harm(s) (74).
Another restriction addressed is that the right to reparation may extend only so far that it would not endanger the lives of the heirs. Boxill then goes on to require a critical assumption that, “present day white U.S. citizens are the heirs of the slave holders and those who assisted, concurred or consented to their transgressions, and that present day African American are the heirs of the slaves” (76). His argument rests on this unqualified statement, which he reiterates when he states, “it maintains that the slaves had titles to reparation against the assets of the entire white population, not just against the slave holders.” What is curious here is how he can state that such a claim necessarily follows from what he says is his premise for the aforementioned statement upon which his argument rests, and immediately follows, saying, “this is because most white citizens consented to the government’s support for slavery and consequently entitled the slaves to seek reparation from them” (77) This immediately demands an explanation as to how the pronoun “them” in his premise, which refers to some, necessarily becomes all in his conclusion.
Utilizing Locke may or may not persuade others as to whether or not reparations should or should not be paid. There are some relevant points, however, that should be made. One such point is the glaring absence of the prerequisite, according to Locke, for what Boxill relied on for his argument in favor of reparations. While Boxill did, without attribution, refer to a line from section 178, what he did not do was provide the introduction which states, “But supposing, which seldom happens, that the conquerors and conquered never incorporate into one people, under the same laws and freedom. Let us see next what power a lawful conqueror has over the subdued” (111). This prerequisite requires that the lawful conquerors and conquered have not incorporated into one people and are not under the same laws with the same freedoms. The argument against Boxill’s position, which would rely on this prerequisite condition, is that the citizenry of America is “one people” and are “under the same laws and freedom.” This is not to say that disparities in treatment between whites and African Americans do not exist, but that they are not sanctioned by law, are arguably not based on race, and therefore those disparities do not have the support of the governments involved.
Another point is that Boxill fails to address, in his analogy of the lawful conqueror and the unjust ruler, which is which and who are their respective heirs. Does Boxill mean to say that African Americans are the lawful conqueror with the rights and powers enumerated by Locke, and if so, was it the whites who were conquered? This seems a farfetched claim considering the existential realities of the fight over reparations nowadays. He cannot mean to say that the current government is the lawful conqueror over the old government which was complicit in slavery as he has already argued that the governments are the same in all relevant respects. Boxill does not address how the act of conquering would look or what its relevant characteristics would need to be in order for the analogy to be meaningful. As it stands, it seems the analogy does not provide any clarity whatsoever when it comes to how it should be applied to the question of reparations.
It has been shown that Boxill’s argument in favor of reparations has some serious failings, if not flaws. The counterfactual argument has problems when it is conceded, as it should be, that all of the citizens in the U.S. have been harmed to varying degrees and in different ways by the idea of racism, the institution of slavery, Jim Crow laws, and the ways in which our society often fails to account for the injustices that have and continue to exist. It also requires an appeal to a strictly deontological moral philosophy, whereas a utilitarian one is likely to be more pragmatic and mandate a forward looking perspective regarding reparations, and as a result be more aligned with remedies to class issues than racial issues with the idea being that they are currently intertwined to such a degree that addressing the one is the most effective way of addressing the other. His inheritance argument also has, as this paper has shown, serious failings. First, it presents an analogy that relies on a prerequisite that Boxill left entirely out of his argument, which had it been included would have risked the entire argument being invalidated. Second, the failure to characterize the conqueror, the conquered, and their heirs makes the entire analogy incoherent in relation to the specific issue Boxill is attempting to address. Even if the argument made perfect sense, Locke had this to say in A Letter Concerning Toleration: “But to come to particulars. I say, first, no opinions contrary to…those moral rules which are necessary to the preservation of civil society, are to be tolerated by the magistrate” (424). If reparations are contrary to the moral rules that are necessary to the preservation of civil society, as some utilitarians, pragmatists and legal positivists might claim they are, then they should not be allowed.
Boxill, Bernard R.. "A Lockean Argument for Black Reparations." The Journal of Ethics 7.1 (2003): 63-90. Print.
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