Should descendants of slaves be offered reparations for harm allegedly done to them by the institution of American slavery and its aftermath? A 2004 court case involved African American descendants of slaves who sued 18 corporations that allegedly benefited from slave labor at a time when slavery was legal in the United States ("In re: African American slave descendants litigation," 2004). The plaintiffs argued that slavery in the United States was unjust and immoral and that the corporations' predecessors became rich through the slave trade and slavery from 1619 to 1865. For relief, the plaintiffs sought compensatory and punitive damages from the corporations. The court dismissed the suit based on several "well-settled legal principles":
Case 4.5 reminds us that questions about commutative justice can involve exchanges across ethnic groups and generations. At times, government may be a party to these exchanges; at other times, government may be the arbiter of these exchanges. Or it might be appropriate for the government to stay out of the exchange. What issues do we need to consider? Think about whether there is an intergenerational contract between the young and the old. Examine the challenges to commutative justice for various economic classes posed by government leaders whose loyalty to their party may conflict with their loyalty to their constituents.
The central question about reparations for slavery is based on the social contract—which the Constitution embodies—between the United States and its inhabitants. Was this contract violated when slavery was legal? If so, does this violation extend to descendants of slaves? Let's address this in four steps: the nature of reparations, arguments for and against reparations, the problem of design and content, and constitutional constraints.
Arguments for and Against Reparations
Let's consider three views concerning reparations. One view is that forcing anyone to pay reparations is always commutatively and retributively unjust. A second view is that it may be commutatively just to pay reparations if the payer was somehow complicit in the original wrongdoing—as a member of the offending organization, for example. A third view is that reparations are generally commutatively and retributively just, given the wrong that demands justice. One form of this third view is ethical collectivism, which holds that "racial, ethnic, or national groups, in which individuals hold membership involuntarily, may have group-level rights and duties" (Posner & Vermeule, 2003, p. 690). How we assess these views depends on the arguments behind them but also on our general views concerning individual and collective rights and responsibilities. Libertarians, for example, would object to any effort to take their property without their permission. On the other hand, if they were the victims requiring reparations, they might insist that justice requires them to receive those reparations regardless of what others have to give up. Utilitarians would promote reparations only if they would provide a greater good than not paying them. And egalitarians would insist that whatever decision authorities make concerning reparations should lead to all stakeholders benefiting equally.
There are at least two common arguments in defense of reparations. First, alleged victims have been unjustly harmed. In the case of slavery, there is no doubt that the slaves were unjustly harmed and it's likely that some descendants of the slaves benefited less than they would have if their ancestors had had better opportunities. But this doesn't necessarily mean the descendants were harmed in a way that reparations could justly repair.
A second argument in favor of reparations is that there is precedent for paying reparations. For example, the United States has paid reparations in at least the following instances:
In 1997 President Clinton offered an official apology to Herman Shaw, who had been an unwitting participant in the infamous Tuskegee syphilis study. In this study, government doctors knowingly left untreated African American men with syphilis. The United States paid living victims of the study $9 million collectively. But if descendants of these victims required reparations, how should the United States respond?
- $800 million to Native American tribes in 1946
- $16.5 billion to Japanese Americans in 1988 (for having been forced into internment camps in the United States during World War II)
- An apology in 1993 to Hawaiians for annexation of Hawaii as a state
- $2.1 million in 1994 to victims and relatives of victims for the 1923 Rosewood massacre, in which some White men stormed the town of Rosewood, most of whose residents were Black, claiming falsely that a White woman in a nearby town had been raped by a Black man
- $9 million to victims of America's syphilis experiments in which Black men were unknowingly left untreated for syphilis so the researchers could observe the development of the disease (Posner & Vermeule, 2003).
But this doesn't necessarily mean the United States is obliged to pay reparations in all instances where people request or demand them.
There are at least four common arguments against reparations. First, the direct victims are no longer alive and so whatever commutative injustice was done to them no longer exists and cannot be made right for them. Still, there may be living descendants who suffer hardships because of the injustice to their ancestors, in which case these descendants may count as victims too.
Second, it would be difficult to assess who among the living was victimized, or third, to assess the damage done and the amount of just compensation. In the case of slavery, for example, how might one determine who is a descendant of the direct victim and how the descendant has suffered in ways directly connected to the original victim's suffering? On the other hand, if reparations are the only or best way to respond to the commutative injustice of slavery, then identifying living victims and making the necessary assessment would be obligatory, no matter how difficult.
A fourth argument against reparations is that it is unclear how far back people are supposed to go to determine the wrong for which reparations should be paid today (Sher, 2004). Suppose someone can demonstrate that he is a descendant of a slave and that this ancestor was one in several generations of relatives who were slaves. In identifying the original victims and assessing the damage done, is it necessary to go back as far as possible or is it enough for the living descendant to prove such lineage in general? Here again, the response might be that this is not the victim's responsibility but the task of those who must see that reparations are paid.
Problem of Design and Content of Reparation
When we limit reparations to a cash payment, the arguments against reparations are quite strong—there appears to be no way to assess the damage, identify the victims, or establish the proper amount to pay. But there are other steps the government could take and, arguably, has taken to right the wrongs of slavery, for example, apologies, Affirmative Action, and land grants.
Also, even if the authorities could come up with a clear sense of who should get paid and how much, some "temporal" issues linger (Posner & Vermeule, 2003). For example, are they compensating for discrete harms at a particular time or continuing harms? If the latter, have the harms stopped? Should reparations be made all at once or on a continuing basis? How will it be clear that the reparations have been paid and there is no more to pay?
In the United States, the question of reparations concerns the social contract as governed by the Constitution. What, if anything, does the Constitution say about who should get paid, how to respond to objecting payers, and how to respond to objecting beneficiaries (because of the stigma, for example) (Posner & Vermeule, 2003)? The powers that the Constitution confers on the legislature to make law and on the executive branch to issue orders necessary to fulfill the executive office's obligations seem to allow for America's making and distributing reparations at will. But this doesn't settle the moral question. For example, if you are a recently nationalized citizen who is the first from your family to come to America and there is no history of slavery in your genealogy, why should you have to contribute to the reparations for slavery? Or is it possible for the United States to collect money for reparations only from a select group according to their genealogies or ability to pay?
What redress is possible if when you get old there is no one in the working generation to take care of you? Can you claim that younger generations violated a contract that you subscribed to in your working years?
The question of reparations raises the question whether there are contracts across generations, reaching back in history to times of slavery or unjust internment of certain ethnic groups. In a comprehensive treatment of commutative justice, we might also ask whether there are intergenerational rights and responsibilities, thus forming a contract between different generations of people living at the same time—between the young and the old, for example.
Historians Peter Laslett and James Fishkin (1992) note that
the modern welfare state is commonly said to be founded on a kind of intergenerational contract. During its productive years, each generation pays to support those who are dependent on it, assuming that when its own dependent phase comes, it will be supported in turn by successor generations. (p. 2)
On this model, commutative justice requires that people during the years they are able to work and earn a living have a duty to provide for those who went before them and are now elderly. Unlike the standard contract in which each party gives something to the other, the intergenerational contract does not require the older party to give anything to the younger. Instead, the younger are to believe that they have a contract with subsequent generations who will be responsible for taking care of their elders, and so on.
Laslett and Fishkin (1992) express skepticism about this contract. For one thing, in a standard contract, "the comparability of benefits and burdens must be reasonably foreseeable" (p. 2). But this comparison isn't possible in the intergenerational contract since the party that receives the benefits (the old) is not beholden to the party that bears the burden (the young). Also, if there are "gross unforeseen inequities undermining" the comparability of benefits and burdens, then "there must be a possibility of redress" (p. 2).
Superficially, then, it would appear that younger people—those in their "productive years"—have no contract with older people to take care of them, and the older ones have no right to accuse the younger people of being commutatively unjust if they don't take care of their elders. Still, there is something unsettling in the contemplation of older people not being taken care of by those with the financial ability to do so. Perhaps this is a matter for distributive justice rather than commutative justice—perhaps older people have a right to a fair share of public goods and services, for which they paid in their working years. This is the point of Social Security, for example. But even here there appears to be a contract of sorts: by putting a share of their paychecks into Social Security, the workers were at least tacitly party to an agreement whereby the government would keep that money until the workers retired and then give it back to them in increments that contributed to their living expenses. In this way, both the young and the old contract with the government. There is no direct contract between the young and the old. And commutative justice in this model requires that the current workers contribute to the pool for their own benefit in retirement, that the government take good care of the workers' money until they retire, and that the government give the retirees their money at the appointed time and in the agreed-upon amount. While this absolves young people of certain contractual obligations to the elders, it requires the young people to contribute to a fund from which they may not get any benefit for a long time—or ever. Thus, if there is a contract here, it is an unusual one, in that the parties aren't in mutual agreement and the payoff is a long way away.
Does commutative justice look different from the viewpoint of the poor, the middle class, and the wealthy? If the United States is a social contract and its legislature is a party to that contract, with the responsibility of taking care of the people, should the legislature be sensitive to the differences among economic classes concerning commutative justice? And for those of us who are party to the social contract but are not in political position to promote commutative justice among various economic classes, what is our responsibility?
Let's start with the legislature. Today, stereotypically, Democrats are seen as defenders of entitlement programs that benefit the poor and working class, while Republicans are seen as defenders of the wealthy, with a mandate to keep the government from taking too much of their money, especially through taxes. Given these stereotypes, Democrats would be acting commutatively unjust if they failed to fulfill their (social) contractual obligation to help the financially needy, and the Republicans would be acting commutatively unjust if they failed to fulfill their contractual obligation to help people keep more of their own money.
In his presidential farewell address, George Washington (1796) pleaded with his successors not to split into parties, for fear that people would put their loyalty to their party ahead of their loyalty to their country. Does the current state of affairs in Congress suggest that there are competing contracts—one between the congressman and his or her party and the other between the congressman and his or her constituents? If so, is Congress being commutatively unjust by putting party ahead of the economic well-being of its constituents? How people answer this may depend on their financial status and whether they believe the right congressional decisions could improve their economic situation.
The legislature is not the only party to the social contract in the United States. All citizens, and arguably all residents, of the United States have a stake in the justices and injustices that follow from or affect American society. If someone in a particular economic class feels that other parties to the social contract aren't holding up their end of the bargain, they may have to look somewhere other than the government for justice. Perhaps they can reassess their own position and conclude that matters aren't as bad as they seem. While people of modest means may not be able to afford the luxuries that they dream about, this may not be a matter of commutative injustice—that is, it may not be a result of any broken agreements. Perhaps the aggrieved can change their circumstances by budgeting more carefully or taking on extra work. For those who cannot improve their lot on their own, they may find help from religious or community organizations whose sense of commutative justice (and distributive justice) obliges them to reach out to those in need. How people respond to these challenges depends on whether they are libertarians, utilitarians, or egalitarians. The libertarian would argue that the social contract was designed to enable people to keep what's theirs and that any claim on someone's property or any effort to take that property without the owner's consent would be a violation of the social contract and thus commutatively unjust. The utilitarian would argue that the primary purpose of the social contract is to ensure that the greatest number of stakeholders under the contract benefit and that commutative justice may require assisting the less fortunate at times. The egalitarian would argue that every party to the social contract has an equal right to its benefits and that all parties are obliged to do what they can to ensure this equality. What this means for the poor, the middle class, and the wealthy remains a matter for further consideration.
Commutative Justice and Implications for Future Generations
Edmund Burke (1790) wrote:
Society is indeed a contract . . . a partnership in all art, a particular in every virtue, and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born, each contract of each particular state is but a clause in the great primeval contract of eternal society, linking the lower with the higher natures, connecting the visible and the invisible world. (pp. 143–144)
Do people not yet born have rights—the rights of future generations? This could refer to contracts already made, with implications for the future. Or it could refer to contracts not yet made but which we should anticipate being possible or necessary in the future. Each of these possibilities raises issues for commutative justice, including who the parties are, what the scope and limits of such a contract could be, and how to enforce such contracts.
In a sense, every contract has implications for the future, since the benefits of the contract come after the contract has been agreed to. We may follow Edmund Burke's lead in asking whether we have a contract with parties that don't exist yet. If so, then ensuring commutative justice in this case becomes tricky. Since these parties don't exist yet, how can we know who or what they are? Since we can't identify individuals, we will have to think of the class of them.
Many, including Burke, insist that we must construct the social contract today to prepare for subsequent generations so that they can benefit from the contract as well. We must use and develop resources wisely so that there is enough for future generations and those generations have ready access to these resources. These include natural resources, financial stability, and technology for health, security, and comfort. But if we fail to live up to this contract with the future, who is hurt and how can we tell? In a previous section we considered reparations as a means for people hurt by previous generations to recoup some of their losses (the discussion of slavery). We also saw how difficult it can be to assess the damages, identify the present injured parties, and make reparations that are just for both the recipient and the provider. Learning from the past, we might prepare for the future by not making the same mistakes. But how do we ensure this, and who pays if we fail?