Responsibility for Historical Injustices: Reconceiving the Case for Reparations (original) (raw)

2006, Journal of Law and Politics

I. Introduction "We will have to repent. .. not only for the vitriolic words and actions of the bad people, but for the appalling silence of the good people." [FN1][FN1] The twentieth century ended with the vindication of many of its most mistreated victims' cries for reparation. [FN2][FN2] Holocaust survivors retrieved over $8 billion in assets frozen in bank accounts or looted by the Nazis; [FN3][FN3] Japanese Americans interned during World War II received compensation from the U.S. government; [FN4][FN4] Chile compensated descendants of Pinochet's victims; [FN5][FN5] Japan redressed Korean "comfort women"; [FN6][FN6] and Canada paid damages to Aboriginals for forced assimilation of their children. [FN7][FN7] Absent from the list was the longest suffering and most visible of groups seeking repair-African Americans. [FN8][FN8] *184 Embarrassed by the satisfaction of these other victims' claims, opponents of Black reparations are left to find a legitimate ground upon which to distinguish the claims of contemporary African Americans. To this end, they construe the 140-year-long failure to offer repair not as the egregiously lengthy omission that it is, but instead as the feature that would render moot any entitlement to redress. [FN9][FN9] Thus, the common rejoinder to pleas for Black reparations has opponents protesting that they never owned slaves, and so they should not be made to pay for those who did. [FN10][FN10] *185 Besides, they continue, the slaves are long dead and the effects of slavery now nonexistent, [FN11][FN11] so there would not be anyone who could legitimately claim compensation anyway. [FN12][FN12] The opposition to Black reparations thus focuses on the temporal dislocation between slavery and the present, but the argument loses none of its force when applied to more recent injustices. After all, "righteous gentiles" in Germany did not exterminate Jews; [FN13][FN13] most Japanese never availed themselves of the "comfort" of Korean prostitutes; [FN14][FN14] and many Chileans ardently resisted Pinochet's rule. [FN15][FN15] If opponents of Black *186 reparations are correct to insist that an individual may be held responsible, and hence liable, only for transgressions in which he participated directly, then none of these reparations programs is justifiable. Supporters of Black reparations, or "reparationists," [FN16][FN16] have largely remained silent in the face of this challenge to their campaign. [FN17][FN17] Instead, the recent reparations literature is rife with internal debates regarding whether legal claims should be framed in the language of compensation or restitution;