One of my main interests in political philosophy is reparations. More specifically, I am very interested in historical reparations (HR) (and not just because it is uncontroversial that reparations are due to victims of violations in the distant past). Paradigmatic cases where HR might be due are African American slavery, aboriginal atrocities, and Native American atrocities. HR are very controversial, however. One of the most famous opponents of HR is Jeremy Waldron. Waldron’s initial arguments against historical reparations is found in his (in)famous “Superseding Historic Injustice.” Waldron gives many arguments against HR, but his main argument is derived from his superseding argument. In this post, I will argue that Waldron’s conclusion does not follow from his premises.
Waldron starts by considering what role context plays in just acquisitions in general. He holds that, in general, a context shift can affect the justness of one’s holdings. I think that this true. In support of this, consider the following case:
(1) The context is C1. Water reservoirs are aplenty. You acquire a very large reservoir. Others have similar reservoirs and no one goes thirsty. However, the context shifts to C2, where a drought destroys all of the other reservoirs.
It seems plausible that your entitlement changes when the context shifts to C2. In other words, when the context shifts, you must share your reserves with the others. Even if you think this is false, grant for the sake of argument that context plays a role in acquisitions in general.
Waldron argues that context-dependence in acquisition entails that historical reparations are not justified. He writes,
“By exactly similar reasoning, it seems possible that an act which counted as injustice when it was committed in circumstances C1 may be transformed, so far as its ongoing effect is concerned, into a just situation if circumstances change in the meantime from C1 to C2. When this happens, I shall say the injustice has been superceded (sic)” (24).
Waldron’s argument, then, is that it is possible for the context to shift such that the victim of a historical wrong is no longer entitled to full reparations. Now, it is important to understand that Waldron is claiming that one is not entitled to what we can call ‘full’ reparations. If one is entitled to full reparations, then one is entitled to their original holding. Strictly speaking, Waldron’s conclusion seems to go through. It seems plausible that the U.S. government is not required to give back all of the land it stole from Native Americans (perhaps because of the larger population and thus the larger resource needs of the population. Waldron seems to think that this is a good reason. Regardless, it seems plausible to me to think that some type of context shift can lessen the amount of reparations due).
Perhaps we ought to even reject this weaker conclusion. That is, perhaps we ought to reject the conclusion that context shift can lessen the amount of reparations due. Regardless, Waldron thinks that, for a wide range of cases, it is the case that the context has shifted such that no reparations are due. Not only is this jump empirically preposterous (for the actual world), it seems very implausible theoretically. We can see this just by examining his own example. Consider the following two cases:
(2) The context is C1. Water reservoirs are aplenty. You acquire a very large reservoir. Others have similar reservoirs and no one goes thirsty. However, the context shifts to C2, where a drought destroys all of the other reservoirs. Your entitlement is diminished. You must share your reservoir with the others.
(3) The context is C3. Water reservoirs are aplenty. You acquire a very large reservoir. Others have similar reservoirs and no one goes thirsty. However, a malicious group of bigots steal your reservoir because you like ponderosa pines, and this group hates anyone who loves ponderosa pines. However, the context shifts to C4, where a drought destroys all of the other reservoirs. Your entitlement is diminished. If you were still in control of the reservoir, you would be obligated to share with the others.
The first case is just a normal context shift. Let’s just assume that the set of just entitlements can vacillate according to context. Now, in (3) your reservoir is stolen from you before the context shift. Still, you are justly entitled to the reservoir. Now, Waldron claims that his argument establishes that when the context shifts in (3), you lose all justification for reparations. This seems clearly false, though. You are entitled to some reparations. Perhaps you aren’t entitled to all of your original holding, but it is theoretically unfounded to claim that you have lost all claim to the reservoir. It seems much more plausible to say that you are entitled to the share that you would enjoy if you continued to hold the land when the context shift occurred. If this is true, then Waldron’s argument is not valid. Or, at least his implicit argument is not valid. He is very unclear exactly what his conclusion is. When he actually states the conclusion, he seems to leave himself some wiggle room against this type of attack. However, when he refers to the conclusion–e.g., when he is talking about real cases–he talks as if his argument establishes that when there is an appropriate context shift all claims for reparations are unjustified.
6 Comments
June 8, 2007 at 12:45 pm
I don’t think you can get him on theory, although you may be able to get him in practice. Part of the problem may be that, as you present it, it’s not totally clear whether Waldron is committed to a strong or weak version of the context-shifting claim. (I’m quite fine with the claim that this is his problem, though, not yours!)
Looking at the weak claim, it looks unimpeachable: in principle, context could shift such that one no longer had any entitlement whatsoever to some resources. This is just an instance of the idea that moral claims can change as context changes. Your example doesn’t refute that claim, as could be proven with C5:
The context is C4. Water reservoirs are aplenty. You acquire a very large reservoir. Others have similar reservoirs and no one goes thirsty. However, a malicious group of bigots steal your reservoir because you like ponderosa pines, and this group hates anyone who loves ponderosa pines. However, the context shifts to C5, where a drought destroys all of the other reservoirs. Your entitlement is diminished. If you were still in control of the reservoir, you would be obligated to share with the others. However, your original acquisition was by stealing the reservoir from a group of Douglas fir lovers, due to your devotion to ponderosa pines. Your entitlement is eliminated.
In other words, we can shift the context far enough that any original entitlement claim falls apart. I’ve picked a very extreme case of such a context-shift (acquisition of stolen property), but all that would show is that it’s very hard to find cases where entitlement goes away entirel.
If we read Waldron as endorsing a stronger claim — context actually has shifted such that someone no longer has any entitlement whatsoever to some resources — then he’s easier to argue against; the easiest counter-argument would, I think, be empirical. Waldron would have to fill in how context affects entitlement, in particular stating which empirical circumstances destroy entitlement and which maintain it. Then, for any given reparations claim, we go out and see which circumstances obtain. I suspect we’ll never (or hardly ever) find circumstances which destroy entitlement actually obtaining.
June 8, 2007 at 4:58 pm
Thanks for the comment.
W/r/t the weaker claim, I don’t think that your case shows that a context shift can totally eliminate one’s entitlement. This is because you were never entitled to the reservoir. Theft is never a means to just entitlement. Thus, you have no claims to the reservoir, either in C4 or C5. I think that as long as you are actually entitled to a piece of property that is unjustly taken from you, no context shift can totally eliminate your claim for reparations. The douglas fir lovers would be the one’s entitled to reparations–in all contexts.
That said, it seems overwhelmingly plausible to think that context can diminish one’s reparations entitlement in any case whatsoever.
June 8, 2007 at 7:35 pm
I’m shockingly bad at on-the-spot examples. Here’s a slightly better one, but heavily gimmicked. Suppose, once again, you have a reservoir. Suppose that all the other reservoirs dry up, leaving yours as the only functional one. This reduces your entitlement to the reservoir. Suppose also, though, that you don’t really need it right now: you can function on far less water than anyone else, and you’ll be fine for a few weeks, at least. Add to that that everyone around you is desperately in need of water, and will die in a matter of minutes if they don’t consume all the water currently in your reservoir. In that circumstance, would you still say that you have any residual entitlement to the reservoir and its contents?
Of course, you could — I’m just not sure why you would. Even though it was indeed yours, your need of it is so minimal, compared to the much greater need of others, that I don’t see what claim to entitlement you could have left.
June 9, 2007 at 12:29 pm
In the new case, I think that you are still entitled to the reservoir. I think that, in this case, you are morally obligated to share your water with those that are close to death. However, that doesn’t mean that you are not entitled to ownership of the reservoir. In other words, you are obligated to share the fruits of your property. However, you are not obligated to hand over the rights of that reservoir. If that truly was the case, then in a few weeks when you need water, you would not be entitled to take some from the reservoir (well, perhaps on your story the new owners would be obligated to give you the reservoir back. If that is the case, then your theory of acquisition is getting pretty shaky). That seems wrong, though. The momentary needs (however severe) of those other people can obligate you to share the reservoir, but I don’t think that it can obligate you to give up the land forever. Note that the type of context shift that Waldron and I are talking about is a large scale permanent change in context. The case you gave is no such case.
June 10, 2007 at 8:19 am
I could make the change large-scale and permanent, though. Taking a leaf from I Am Legend: suppose that your lack of need for water is a new and permanent change, due to exposure to some virus, and everyone else’s severe need for water is similarly a new and permanent change, due to exposure to the same virus.
I see what you’re saying about having to ask for the reservoir back, but, if I’m right and need flips the entitlement claim, then once the others had drunk their fill and you needed water, then you would have a legitimate claim to the resource. That is, the entitlement would flip back to you.
I’m starting to get a little lost now as to what you’re taking “entitlement” to amount to. If you can be obligated to share your resources with others in need, in what sense is it still yours? Because you could, wrongly, say “no” and they couldn’t force you to share?
June 12, 2007 at 9:15 pm
[I'm sorry for not replying promptly. No excuse, really]
So, in the new case I think that it is right to say that you lose your entitlement completely. I must say that this is a bad result for accepting context-dependence because I find it really counterintuitive.
Let’s go back to the previous case, though. I only want to accept context-dependence in cases of large scale need change. This is because I think that a theory of property gets very shaky if we accept context-dependence for smaller need shifts. In other words, if we accept context-dependence for lesser need shifts, then it might turn out that what we are entiteld to own fluctuates on a monthy, weekly, or even daily basis. I think that this would raise many worries. Here are some. It would conflict with our intuitions that we are, at least sometimes, entitled to what we put our labor into (I’m not supporting a full Lockean/Marxist theory of labor here. That view contains a kernal of truth, though; viz., that some of our entitled property is gained through putting our labor into that thing). It would interfere greatly with our abilities to invest our (current) property long-term. If we wouldn’t know if we would still have a claim to our current property in any long-term sense, then what is the point of investing it long term? This points to a broader epistemological problem. I think that such a theory would be psychologically harmful because of our lack of knowledge in the same way that I think act-utilitarianism is psychologically damaging because of our lack of knowledge about which act will maximize aggregate utility.
None of that counts against a different route to redistribution of wealth. Here are two possible routes: (i) argue that it is a moral requirement for the more affluent residents of the world to give away some of their resources; (ii) argue that political justice (but not necessarily a theory of property) demands a redistribution.