Making Reparations Possible: Theorizing Reparative Justice

Chapter 15
Making Reparations Possible: Theorizing Reparative Justice

Margaret Urban Walker

To hold that redressing a wrong is an obligation of justice is to hold that some remedial action is (at least prima facie) necessary, something that morally must be done. The requirements of justice are usually understood to be ones that we are required to meet in all cases in which practical circumstances are not so dire or chaotic as to prevent our performance, and in which no other obligations of comparable gravity or urgency conflict. It is curious, then, how often arguments in recent theoretical literature on reparations for massive violence and abuse aim to show that reparations are impossible (or nearly impossible)—logically, morally, or practically—to make. Some claim to show that, regrettably, the very worst among actual injustices—atrocity, genocide, slavery, dispossession, and the like—are ones for which just repair is simply impossible. Yet these are the very cases for which we invoke the concept of reparations.

The absence of theory concerning justice in repair is curious as well. Despite vast and varied theoretical literatures on distributive and retributive justice, with competing positions grounded in philosophical commitments and tested by practical implications, the contemporary theoretical literature on reparative justice remains relatively slight. To begin with (and not inconsequentially), there is no uniformly agreed-upon terminology for the kind of justice in question. While many authors speak of corrective or (in an older tradition) commutative justice, others speak of compensatory, rectificatory, reparatory, or reparative justice, without clarification about whether these are labels for the same kind of theory or principle. There is relatively little in the way of genuine theories of reparative justice. Instead, many writers assume or invoke some version of the principle that justice requires a victim of wrongdoing to be returned by the wrongdoer to the state the victim enjoyed prior to, or would have enjoyed in the absence of, the wrong. This is, of course, Aristotle’s conception of commutative (or corrective) justice. But whatever luster of authority that philosophical pedigree imparts to corrective justice, its more immediate referent is legal practice concerning remedies for unjust harms and losses, where responsible parties are required to make restitution to wronged individuals, or pay them compensation in proportion to harm or loss, in cases of tort or breach of contract. The principle of corrective justice is for the party at fault to restore the prior condition of the wronged party as nearly as possible by wiping out the consequences of the wrong.

To illustrate the poverty of such narrow thinking about reparative justice, I begin with a number of arguments in very recent theoretical writing on reparations that aim to show that justice in repair is defective or deceptive, where it is possible at all. I call them “impossibility arguments.” They share the assumption that justice in repair is identical to or exhausted by corrective justice: justice in repair consists in cancelling out or reversing wrongful harms, typically by means of restitution or proportionate compensation. I propose that we see impossibility arguments, resting on the corrective justice premise, as reductio arguments: if reparations are necessary as obligations of justice, they must typically be possible; if certain assumptions about the nature of reparative justice make them (nearly or commonly) impossible, then those assumptions must be incorrect. Reliance on the corrective justice assumption represents a failure to pursue an adequate theory of (what I will call) ‘reparative justice’, the broadest genus of justice in repair. A theory of reparative justice must expose its core concerns, guiding aims, and implications in practice. A useful theory would also identify the specific challenges and limits, including sources of resistance, to justice in repair.

I will offer in broad outline an account of the nature and guiding aim of reparative justice. My view takes as a reference point the new contemporary practice of political reparations for mass violence and systemic human rights abuse that emerged in the mid-twentieth century. This nascent practice, I will argue below, is an important reference point for the theory of reparative justice. It has resulted (and will no doubt continue to develop) through tests and struggles that can be seen as a set of experiments in discovering what constitutes and signifies justice in repair, however imperfect, for massive human rights crimes. An adequate account of reparative justice ought not only to cohere with but to explain prominent features of this new practice, especially for my purposes here, the diversity of measures that embody justice in repair. Finally, corrective justice ought to find a place within this broader account; I think it can be seen as one implementation of reparative justice within a certain institutional framework under certain political conditions.

Impossibility Arguments

A surprising number of current arguments concerning reparations for mass violence and political repression aim to show that reparative justice is impossible or irrelevant. A number of very recent papers illustrate common ways of thinking about reparative justice that result in impossibility arguments (Du Plessis and Peté 2007; Williams et al. 2012). Some arguments aim to deflate or abuse the idea of corrective justice in response to massive harms while others aim to displace the application of reparative justice in favor of “prospective,” “forwarding looking,” or distributive justice. All of these arguments assume that justice in repair of wrongs is corrective justice, so whether the standard of corrective justice is fulfilled determines whether reparations, envisioned or made, are true, real, “first-best,” adequate, serious, or meaningful as attempts at justice. The conclusion in various versions is that reparations are doomed to inadequacy; in the benign case they fail at doing justice while in the worst case they impede justice or violate it.

Gary Bass argues that reparations are at best a “noble lie,” since atrocity or genocide “cannot be undone” and compensation for such crimes “can never be adequate if measured against the depth of the wound” (Bass 2012: 167 and 171). Bass places reparations in parallel to war crimes tribunals, calling reparations a kind of war tort. By the corrective justice standard of “normal tort law” (169) that requires compensation in proportion to injury, reparations cannot be other than a “tokenistic measure … to mollify the victims … ” (167). While he recognizes that in some cases victims seek admissions and apologies instead of or in addition to compensation, justice demands proportionate compensation (171). This argument may seem simplistic, but I have heard versions of it on many occasions in discussion: reparations are inherently wrong-headed or incoherent because we cannot change the past or undo what has been done. It is worth remarking this kind of argument, not only for its equation of money payments with “real” justice, but because it is problematic in two other ways. No one is more acutely aware than victims of grave wrongs that there is no undoing many of them; what they seek as reparations can hardly be that. On the other hand, in some cases what has happened in the past may indeed be “undone” and is exactly what victims seek: return of land, restoration of rights and status, or the correction of false history.

Jon Elster, in the same volume, shares the idea that only material reparations are real reparations. But while Bass sees symbolic gestures as noble, or at least kindly, Elster scorns them. In the aftermath of widespread abuses, he argues, there are demands of distributive, retributive, restitutive, and compensatory justice to be met (Elster 2012: 80). When it comes to reparations, “Unless governments are willing to put their money where their mouth is,” it is nothing but “cheap talk,” including official apologies, which are likely to be “meaningless,” “absurd,” or “empty” (86). If, on the other hand, governments do fund reparations, they might unjustly “punish” non-victims or collateral victims if reparations draw resources away from compelling distributive justice demands (92–3). In any case, “full reparation at a large scale may be economically unfeasible” (93). Reparations, seen as corrective compensation, are probably unwise if not unjust, and often impossible.

Adrian Vermeule also assumes that reparation means compensation and that corrective compensation in reparations is chronically inadequate. But it is no more “disastrously unprincipled” than the ordinary legal system of corrective justice (Vermeule 2012: 163). In many such cases, Vermeule argues, inadequate and non-individuated compensation fails to satisfy justice but responds to an unprincipled sense of “rough justice,” an intuition that some compensation is better than none at all (151). While reparations are “indefensible on any plausible first-best criterion of justice,” and although there may be problems of unequal treatment among the compensated, and between the compensated and the uncompensated, this second-best is not more objectionable than what goes on in ordinary corrective justice. Vermeule thus defends reparations, but not because it answers to any principled idea or conception of justice appropriate to its own aims and demands. In other words, to say that it is rough justice is to say it’s not really justice at all, and to say that arbitrary compensation is better than none at all suggests that compensation, and only compensation, is at issue in the justice of repair.

Other arguments claim that reparations are not really best understood as an exercise of backward-looking justice at all, or that if they are so understood, they are superseded or preempted by forward-looking distributive justice demands. These arguments say, in effect, that if we seek justice in addressing wrongs we should adopt forward-looking or distributive justice as our guide (see also Wenar 2006 and Pierik 2006).

Writing on expropriated land in former communist countries, Christopher Kutz argues that corrective justice is a distinct and valid normative ground for justice in repair, and one that embodies ideals of accountability, but it is often “the wrong framework for considering reparative claims” (Kutz 2004: 302). Because corrective justice rectifies wrongful invasions of entitlements it is dependent for its force on a distributively just scheme of entitlements (297). As a consequence, a state has “no business” meeting reparations claims in those cases where it is unable to ensure minimally adequate standards of living generally (301). Applied generally, Kutz’s claim for the priority of distributive justice would put material reparations—and possibly symbolic ones that too have their cost—out of bounds in most cases. Given the serious distributive injustice of most societies even by minimal standards, limited resources should be put to the more fundamental work of distributive justice. If there is an argument for return of expropriated land, he argues, that argument will be one of distributive justice, where a group is entitled to its land as a condition of continuing its tradition and culture (310). Kutz sees the reparative value of symbolic recognition, including symbolic monetary payments, as acknowledgment of “the legal and moral subjectivity of the victims” (284). But he seems to see these as forward-looking questions of national identity being reconstructed or transformed (281–3). It is unclear what space is left in his scheme for a kind of reparative justice—neither corrective nor retributive—that grounds independent claims of redress for victims of specific grievous wrongs in the past.

Jeremy Webber argues that reparations (and other transitional justice measures) are often about “prospective justice” that seeks to bring parties into relationship on a just foundation for the future (Webber 2012: 104). Retrospective corrective justice, on the other hand, involves a “narrow optic” that simply seeks to reverse a wrongful transaction without addressing broader questions (121). Even payment often functions symbolically, as an “earnest” to lend weight to apologies or other measures that look forward to better future relations. (105). While reparations programs can partake of both backward-looking corrective compensation of individuals and constructively forward-looking reconstruction of relationships, these forms of justice operate by “very different logics” (107). They pose choices, and potentially dilemmas, about whether “to focus on the nature of past wrongs” or “to manage parties’ relations from here on” (108). So, where Kutz finds a dependency of corrective justice on distributive justice, Webber finds a tension between two independent and competing principles.

Webber illustrates this claim with the case of indigenous peoples, who may seek redress through actual land restitution but also seek to reconstitute their relationship through prospective claims to greater resources and autonomy (111–12). Indeed, Webber points out, they might be willing to forego retrospective remedies to secure self-determination (112). While this claim about some indigenous peoples might be correct, it establishes only that cases of profound, multifaceted, extended, and deeply destructive histories of relationship between people or peoples may give rise to multiple justice claims of distinct types that compete for resources, practical priority, and political traction. What it does not show is that reparative justice is exhausted by corrective justice and its modes of redress for the past are confined to that “narrow optic” of reversing an unjust transaction. If corrective justice alone redresses the past, then where corrective justice cannot be done the past cannot be the focus of justice, and justice claims must look to the future instead. What is missing is an examination of diverse ways, beyond corrective justice, that reparative justice can engage the past and attempt redress. In the choice between past and future, the actual scene of reparations struggles—the present—is not in view.