Justice in Time

I***1*1*» « - * • • * * «i a«, Lukas H. Meyer ( H r s g j "

Justice in Time Responding to Historical Injustic

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Nomos Verlagsgesellschaft Baden-Baden

Lukas H. Meyer (Hrsg.)

Justice in Time

Responding to Historical Injustice

Interdisziplinäre Studien zu Recht und Staat In Verbindung mit Winfried Brugger, Joachim Hruschka, Arthur Kaufmann f, Hermann Kienner, Ernst-Joachim Lampe, Niklas Luhmann f, Manfred Rehbinder, Hubert Rottleuthner, Rüdiger Schott herausgegeben von Werner Maihofer und Gerhard Sprenger Band 30

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Nomos Verlagsgesellschaft Baden-Baden

Die Interdisziplinären Studien zu Recht und Staat sind eine neue Folge des Jahrbuchs für Rechtssoziologie und Rechtstheorie, das in den Jahren 1970-1993 beim Bertelsmann Universitätsverlag Reinhard Mohn bzw. Westdeutschen Verlag erschienen ist. Bereits in den letzten Jahren gingen die Inhalte sachlichen Notwendigkeiten gehorchend zunehmend über die Bereiche Rechtssoziologie und Rechtstheorie hinaus. Fast immer wurden auch grundlegende Fragen der Rechtsphilosophie und Staatstheorie mitbehandelt. Dies soll im neuen Titel der Reihe zum Ausdruck kommen und noch ein anderes: die in den Jahrbuch-Bänden veröffentlichten Beiträge und Diskussionen haben durchweg fachübergreifenden Charakter. Sie sind überwiegend aus Tagungen hervorgegangen, die durch das Zentrum für interdisziplinäre Forschung (ZiF) der Universität Bielefeld gefördert wurden. Auch dies sollte in dem neuen Namen deutlich werden. Überlingen/Bielefeld 1994

Die Herausgeber

Vorwort

Vom 12.-14. Juli 2001 fand am Einstein Forum Potsdam in Kooperation mit dem Institut für interkulturelle und internationale Studien der Universität Bremen eine Tagung zum Thema "Historical Justice/Historische Gerechtigkeit" statt, die die Deutsche Forschungsgemeinschaft und das British Council gefördert und zu der Professor Chaim Gans und ich eingeladen haben. Chaim Gans und ich hatten im Juni 1998 erstmals über eine Tagung zum Thema "Historische Gerechtigkeit" gesprochen. Der überwiegenden Zahl der Beiträge in diesem Band liegen Referate der Potsdamer Tagung zugrunde. Im Namen aller Beteiligten möchte ich der Direktorin des Einstein Forums, Professor Susan Neiman, und ihren Mitarbeitern, insbesondere Dr. Martin Schaad und Dr. Matthias Kroß, für die Unterstützung des mit diesem Band dokumentierten Vorhabens herzlich danken. Matthias Kroß machte den Vorschlag, die Veranstaltung am Einstein Forum durchzuführen. Martin Schaad hat das Zustandekommen und die Durchführung der Tagung beispielhaft und auf vielfältige Weise unterstützt. Frau Susanne Baass, Bremen, hat mit größter Geduld und Sorgfalt die Manuskripte für den Druck vorbereitet.

Bibliografische Information Der Deutschen Bibliothek Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.ddb.de abrufbar. ISBN 3-8329-0503-0

1. Auflage 2004 © Nomos Verlagsgesellschaft, Baden-Baden 2004. Printed in Germany. Alle Rechte, auch die des Nachdrucks von Auszügen, der photomechanischen Wiedergabe und der Übersetzung, vorbehalten. Gedruckt auf alterungsbeständigem Papier.

Bremen, im Juli 2003

Lukas H. Meyer

Table of Contents

Vorwort Lukas H. Meyer Einleitung

I.

Philosophical Perspectives

53

1. Jeremy Waldron Redressing Historic Injustice

55

2. Chaim Gans Historical Rights

79

3. Janna Thompson Collective Responsibility for Historical Injustices

101

4. Thomas W. Pogge Historical Wrongs. The Two Other Domains

117

5. George Sher Ancient Wrongs and Modern Rights

135

6. Rahul Kumar and David Silver The Legacy of Injustice. Wronging the Future, Responsibility for the Past

145

7. Paul Patton Colonization and Historical Injustice - The Australian Experience

159

8. Lukas H. Meyer Surviving Duties and Symbolic Compensation

173

9. David Heyd Ressentiment and Reconciliation. Alternative Responses to Historical Evil

185

10. George P. Fletcher The Relevance of Biblical Thought for Understanding Guilt and Shame

199

8

Table of Contents

Einleitung*

II.

Institutional Responses to Historical Injustice

207

11. Ruti Teitel Transitional Historical Justice

209

12. Jon Elster A Case Study of Transitional Justice. Athens in 411 and 403 B.C.

223

Lukas H. Meyer

Inhaltsverzeichnis 1.

13. Claus Offe and Ulrike Poppe Transitional Justice in the German Democratic Republic and in Unified Germany 14. David Lyons Unfinished Business. Racial Junctures in US History and Their Legacy 75. Jaime Malamud Goti The Moral Dilemmas about Trying Pinochet in Spain 16. Christian Tomuschat Comments on: Jaime Malamud Goti, "The Moral Dilemmas about Trying Pinochet in Spain" 17. Andrei Marmor Entitlement to Land and the Right of Return: An Embarrassing Challenge for Liberal Zionism 18. Chaim Gans Comments on: Andrei Marmor, "Entitlement to Land and the Right of Return: An Embarrassing Challenge for Liberal Zionism" 19. Andreas F0llesdal The Special Claims of Indigenous Minorities to Corrective Justice

239 271

299

315

319

335

339

Das Nicht-Identitätsproblem

11

1.1 Die Schwellenwertskonzeption der Schädigung

12

1.2 Andere Interpretationen historischen Unrechts

13

2.

15

Die Relevanz hypothetischer Geschichtsverläufe

2.1 Epistemische Probleme und Freiheit der Entscheidung

15

2.2 Unterlassungen in der realen und Leistungen in der hypothetischen Welt

15

3.

16

Die Aufhebung historischer Ansprüche aufgrund veränderter Umstände?

3.1 Jeremy Waldrons Aufhebungsthese

16

3.2 Die identitätsstiftende Bedeutung von Land und der Anspruch der Palästinenser auf Rückkehr

17

3.3 Der Anspruch indigener Gruppen auf Restitution der Kontrolle über identitätsstiftendes Territorium

20

4.

23

Pflichten aufgrund historischen Unrechts und historischer Schädigung

4.1 Indirekte Pflichten von Mitgliedern andauernder Gesellschaften

23

4.2 Geteilte Scham oder kollektive Schuld?

26

4.3 Das Verbot des Trittbrettfahrens

27

5.

30

Strafrecht und Strafverfahren als Modus der Transition to Democracy

5.1 Transitorische Strafverfolgung im internationalen Vergleich

31

5.2 Moralische Dilemmata der Strafverfolgung von System verbrechen durch Fremde

32 36

20. Axel Gosseries Historical Emissions and Free-riding

355

5.3 Transitorische Strafverfolgung in der Wahlsituation

21. David A. Crocker Punishment, Reconciliation, and Democratic Deliberation

5.4 Transitorische Strafverfolgung in der Notsituation

40

383

6.

Die Haltung der Opfer

44

List of Contributors

409

7.

Schlussbemerkung

46

10

Lukas H. Meyer

Der Titel Justice in Time. Responding to Historical Injustices verweist auf die Fragen, ob Gerechtigkeit in der Zeit und über die Generationen möglich ist, und inwiefern historische Gerechtigkeitsansprüche sich abhängig unter anderem vom temporalen Abstand zur Unrechtstat ändern. Zugleich will der Titel daran erinnern, dass z.B. der Anspruch auf Kompensation wegen historischen Unrechts ein dringender Anspruch ist. Den überlebenden Opfern kann nur geholfen werden, solange sie leben. Die vorliegenden Beiträge von Philosophen, Rechts- und Sozial Wissenschaftlern untersuchen also die Frage: Welche Reaktion auf historisches Unrecht ist angemessen oder erforderlich? Insbesondere geht es um die Klärung der moralischen Ansprüche, Rechte1 und Pflichten von Menschen wegen historischen Unrechts. Unter historischem Unrecht wird erstens verstanden: das an anderen Menschen als denen, die heute wegen der Unrechtshandlungen Ansprüche erheben, und von anderen als denen, die heute wegen der Unrechtshandlungen unter Pflichten stehen, in der Vergangenheit verübte Unrecht. Unter historischem Unrecht wird zweitens verstanden: Handlungen, die unter einem vorrechtsstaatlichen Regime als rechtmäßig galten und womöglich positiv sozial sanktioniert wurden, aber gemäß Grundannahmen liberaler politischer Philosophie2 als Unrechtshandlungen einzuschätzen sind und nach einer Transition zu einer rechtsstaatlichen Ordnung negativ sanktioniert werden können oder sollen. Historische Gerechtigkeit hat demnach Aspekte intergenerationeller Gerechtigkeit3 und der Gerechtigkeit bei der, um den Terminus technicus zu nennen, Transition to Democracy4 zum Gegenstand, nämlich die normative Bezugnahme gegenwärtig lebender Menschen auf das Handeln und das Leiden früher lebender Personen oder von Personen, die unter einem früheren, vorrechtsstaatlichen Regime gelebt haben. Es handelt sich dabei um eine Bezugnahme aus Gründen der Gerechtigkeit,5 wenn von zukünftig und gegenwärtig lebenden Menschen gesagt werden kann, dass sie Rechte gegenüber gegenwärtig lebenden Menschen haben und wenn von gegenwärtig lebenden Menschen

* 1

2

3 4

5

Für Hinweise danke ich Barbara Reiter und Jutta Gabriela Richter. Im Folgenden verwende ich moralische Rechte und legitime Ansprüche gleichbedeutend. Das scheint unproblematisch, solange wir annehmen, dass auch einen legitimen Anspruch zu haben impliziert, dass eine andere Person oder andere Personen unter (der) korrelativen Pflicht(en) stehen, dem Anspruch zu entsprechen. Zu den Annahmen zählen ein universell geltender Wertindividualismus und ein Kriterium richtigen Handelns, das für alle Personen gleichermaßen gilt, und in diesem Sinne neutral ist. Zu den substantiellen Annahmen zählt die intrinsische Wertschätzung der Handlungsautonomie. Zu den dringendsten Handlungsgründen im Sinne des genannten Kriteriums richtigen Handelns zählt, die Verletzung fundamentaler Rechte zu vermeiden: niemand darf fundamentale Rechte von Menschen verletzen, jedenfalls dann nicht, wenn nicht der Schutz anderer ebenfalls durch gleich- oder höherrangige Menschenrechte geschützter Werte eine solche Verletzung erlaubt oder gar erfordert. Ob wir uns je in einer solchen Situation befinden ist umstritten, und, wenn das zugestanden ist, dann ist umstritten, ob und in welchem Sinne die genannte Bedingung die Verletzung eines fundamentalen Rechts rechtfertigen kann. Siehe mein "Justice, Intergenerational", Stanford Encyclopedia of Philosophy (http://plato.stanford. edu/). Siehe N.J. Kritz, Transitional Justice. Die besonderen Probleme der Transitional Justice gehören typischerweise zur nicht-idealen Theorie und zwar in beiden von John Rawls unterschiedenen Hinsichten (J. Rawls, A Theory of Justice, 2450: Transitional Justice ist eine Reaktion auf Unrecht und dessen langfristige schädigende Konsequenzen, und häufig sind zudem die ökonomischen, sozialen und kulturellen Bedingungen der Transition für die Durchsetzung von Gerechtigkeitsansprüchen ungünstig. Siehe Abschnitt 5, insbesondere 5. 3-4, und Fn. 50 unten. Für dieses Verständnis von Gerechtigkeitsansprüchen und Pflichten der Gerechtigkeit siehe z.B. J.S. Mill, "Utilitarianism", Kap. 5.

Einleitung

11

gesagt werden kann, dass sie unter den korrelativen Pflichten gegenüber diesen Menschen stehen. Historische Gerechtigkeit wirft eine Reihe philosophischer Fragen auf. Zu ihnen zählen: Das Nicht-Identitätsproblem (Abschnitt 1), die Frage der Relevanz hypothetischer Geschichtsverläufe (Abschnitt 2), die der Relevanz veränderter Bedingungen für die Geltung historischer Ansprüche (Abschnitt 3), und die Frage, wer aufgrund historischen Unrechts heute unter welchen Pflichten steht (Abschnitt 4). Ein Fokus der philosophischen und rechtswissenschaftlichen Überlegungen zu Transitional Justice ist die Frage der Legitimität insbesondere strafrechtlicher Sanktionen gegen Menschen aufgrund von Handlungen, die sie unter und womöglich im Namen des Vorgängerregimes verübt haben und die zur Tatzeit als legal galten und womöglich positiv sanktioniert wurden (Abschnitt 5). Wenn Versöhnung auch um den Preis des Verzichts auf strafrechtliche Verfolgung als politisches Ziel der Transition ausgewiesen wird, wie prominenterweise in Südafrika geschehen, verweist dies auf Fragen der Zumutbarkeit für die Opfer und der Haltung, die für sie angemessen ist (Abschnitt 6). Viele Autoren dieses Bandes, z.B. Andreas F0llesdal, Chaim Gans, David Heyd, Andrei Marmor, Lukas Meyer, Paul Patton, und Jeremy Waldron, untersuchen oder bemühen sich um die Vermittlung von zwei grundlegenden Perspektiven auf vergangenes Unrecht, der zukunfts- und der vergangenheitsorientierten. In zukunftsorientierter Perspektive untersuchen wir die Signifikanz der bleibenden Wirkung vergangenen Unrechts für gegenwärtig und zukünftig lebende Menschen und insbesondere für deren Gerechtigkeitsansprüche. Diese werden dann als Ansprüche distributiver Gerechtigkeit gedeutet. In vergangenheitsorientierter Perspektive untersuchen wir die Implikationen des an früher lebenden Menschen begangenen Unrechts für die Pflichten, unter denen gegenwärtig lebende Menschen stehen können, und zwar unabhängig von Konsequenzen des vergangenen Unrechts für das Wohlergehen gegenwärtig und zukünftig lebender Menschen. So es hier um Pflichten der Gerechtigkeit geht, sind dies Pflichten der korrektiven und kompensatorischen Gerechtigkeit.6 /.

Das Nicht-Identitätsproblem1

Die Beziehungen zwischen gegenwärtig lebenden und zukünftig lebenden Menschen 6

7

Wenigstens vier Interpretationen des Verhältnisses von distributiver und korrektiver bzw. kompensatorischer Gerechtigkeit lassen sich unterscheiden. Erstens, kompensatorische Gerechtigkeit weist Prinzipien aus, die der Wiederherstellung oder dem Erhalt distributiv gerechter Verhältnisse dienen. Siehe z.B. G.F. Gaus, "Does Compensation Restore Equality?", 45-81, insb. 54f. Mit diesem Verständnis des Verhältnisses konkurrieren wenigstens drei Alternativen: kompensatorische Gerechtigkeit ist ein konstitutives Element distributiver Gerechtigkeit, insofern erstere Bedingungen angibt, die es bei der Verfolgung des Ziels der distributiven Gerechtigkeit zu beachten gilt, weil diese Bedingungen Aspekte unseres Verständnisses distributiver Gerechtigkeit ausdrücken; siehe z.B. E. Anderson, "Compensation within the Limits of Reliance Alone", 178-85, 179f. Zweitens, kompensatorische und distributive Gerechtigkeit sind begrifflich voneinander unabhängig und die Verfolgung des Ziels kompensatorischer Gerechtigkeit kann mit der Verfolgung des Ziels distributiver Gerechtigkeit konfligieren; siehe z.B. J.S. Fishkin, "Justice between Generations", 85-96, 92. Schließlich sei auch das Verständnis erwähnt, nach welchem kompensatorische und distributive Gerechtigkeit dasselbe Ziel verfolgen; siehe R.E. Goodin, "Compensation and Redistribution", 14377, 157f, 165f. Zu diesem Fragenkomplex siehe J. Coleman, Risks and Wrongs, 303-54. Zu Colemans jüngsten Arbeiten S.R. Perry, "The Distributive Turn", 141-62; Colemans Antwort, "Second Thoughts and Other First Impressions", 257-322, 306-16. Siehe mein "Justice, Intergenerational", Stanford Encyclopedia of Philosophy (http://plato. Stanford, edu/), insbesondere Abschnitte 2.1-2.

12

sind durch eine Reihe von Merkmalen charakterisiert, die nicht für die Beziehungen unter Zeitgenossen gelten. Wieder andere Merkmale charakterisieren das Verhältnis von gegenwärtig lebenden zu früher lebenden Menschen. Aber das Kontingenzproblem, wie ich es nennen werde, stellt sich gleichermaßen für wichtige Aspekte beider Seiten der intergenerationellen Beziehungen: hinsichtlich der Pflichten gegenwärtiger Generationen, die Rechte zukünftiger Generationen nicht zu verletzen, und der Pflichten gegenwärtig lebender Generationen, die Schäden gegenwärtig lebender Menschen zu kompensieren, die ihnen durch die bleibende Wirkung von historischem Unrecht zugefügt werden. Das Kontingenzproblem beruht auf der Tatsache; dass die Existenz und Identität von zukünftig lebenden Menschen von den Entscheidungen und Handlungen gegenwärtig lebender Menschen abhängen können. Dies gilt auch für Handlungen, die wir gemeinhin als schädigend auffassen. Wenn die schädigende Handlung zugleich notwendige Bedingung der Existenz und Identität von Menschen ist, wie können diese dann aufgrund dieser Handlung als geschädigt gelten? 1.1

Die Schwellenwertskonzeption der Schädigung

Die Schwellenwertskonzeption, nicht aber das übliche diachronische8 oder hypothetisch-historische9 Verständnis von Schädigung erlaubt uns, Handlungen als zukünftig lebende Menschen schädigende und ihre Rechte verletzende auszuweisen, auch wenn diese Handlungen selbst zu den notwendigen Bedingungen der Existenz und Identität dieser Menschen zählen.10 Sowohl das diachronische wie das hypothetisch-historische Verständnis setzen voraus, dass die Existenz der geschädigten Person oder Personen als Individuen unabhängig von der schädigenden Handlung besteht. Wenn wir aber die Schwellenwertskonzeption vertreten, dann können wir von zukünftig lebenden Menschen sagen, dass sie durch unsere Handlungen geschädigt werden, auch wenn es der Fall ist, dass die Existenz der derart geschädigten Menschen kausal abhängig ist von unserer Entscheidung, diese Handlung auszuführen. Die Schwellenwertskonzeption kann in der folgenden Formel ausgedrückt werden: Eine Handlung (oder Unterlassung) zum Zeitpunkt t\ schädigt eine Person nur dann, wenn der Handelnde verursacht oder zulässt, dass das Leben dieser Person unter einen spezifizierten Schwellenwert fällt. Entsprechend können gegenwärtig lebende Menschen, die nicht selbst Opfer der an anderen verübten Unrechtshandlungen sind, Ansprüche auf Kompensationsleistungen geltend machen, wenn es stimmt, dass an ihren Vorfahren verübtes Unrecht bleibende Wirkungen hat, die diese Menschen im Sinne der Schwellenwertskonzeption schädigen, 8

9

10

Einleitung

Lukas H. Meyer

Das diachronische Verständnis kann in der folgenden Formel ausgedrückt werden: Eine Handlung (oder Unterlassung) zum Zeitpunkt t\ schädigt eine Person nur dann, wenn der Handelnde verursacht oder zulässt, dass es dieser Person zu einem Zeitpunkt tj schlechter geht, als es ihr zum Zeitpunkt ?i ergangen ist. Das hypothetisch-historische Verständnis kann in der folgenden Formel ausgedrückt werden: Eine Handlung (oder Unterlassung) zum Zeitpunkt t\ schädigt eine Person nur dann, wenn der Handelnde verursacht oder zulässt, dass es dieser Person zu einem Zeitpunkt t% schlechter geht, als es ihr ergangen wäre, hätte der Handelnde mit dieser (oder mit Blick auf diese) Person nicht interagiert. Für die Unterscheidungen siehe D. Parfit, Reasons and Persons, 487-90; J. Woodward, 'The NonIdentity Problem", 802f, 818; E.H. Morreim, 'The Concept of Harm Reconceived", 3-33, 23; J.S. Fishkin, "Justice between Generations", 85-96; ders., 'The Limits of Intergenerational Justice", 6283, 63f; S. Shiffrin, "Wrongful Life, Procreative Responsibility, and the Significance of Harm", 117-48. Für die Bezeichnungen siehe T.W. Pogge, "'Assisting' the Global Poor".

13

und eben auch wenn die historischen Unrechtshandlungen selbst zu den notwendigen Bedingungen der Existenz und Identität dieser Menschen zählen. Der Ausweis der Legitimität derart begründeter Kompensationsansprüche der Nachfahren von Opfem historischen Unrechts ist Ausdruck der zukunftsorientierten Interpretation der Signifikanz der Konsequenzen historischen Unrechts." Gäbe es keine Lösung des Nicht-Identitätsproblems, dann ließen sich auch, wie George Sher in seinem Beitrag hervorhebt, in den intuitiv plausibelsten Fällen Kompensationsansprüche der indirekten Opfer wegen historischem Unrecht nicht ausweisen. Die angedeutete Lösung, der Ausweis einer identitäts-unabhängigen Schwellenwertskonzeption der Schädigung, kann unterschiedlich interpretiert werden. Immer geht es um die Relevanz der Konsequenzen früherer Zustände der Welt für das Wohlbefinden gegenwärtig und zukünftig lebender Menschen. Der Vorschlag, die Kompensationsansprüche gegenwärtig lebender Menschen unter Berücksichtigung des hypothetischen Verlaufs der Geschichte, nämlich einer Geschichte ohne die frühere Rechtsverletzung zu bestimmen, dürfte mit einer Schwellenwertskonzeption der Schädigung unvereinbar sein. Unabhängig vom Nicht-Identitätsproblem wirft der Vorschlag die Frage auf, welche Relevanz der hypothetische Verlauf der Geschichte für die Ansprüche heute lebender Menschen haben kann (Abschnitt 2). 1.2

Andere Interpretationen historischen Unrechts

Andererseits sind einige Interpretationen der Signifikanz historischen Unrechts vom Nicht-Identitätsproblem nicht betroffen. Erstens könnte man annehmen, wie in den Beiträgen von Patton und Waldron diskutiert, dass weiter bestehenden transgenerationellen Gruppen als solchen Unrecht getan wurde und diese Gruppen heute Träger der entsprechenden Ansprüche auf Kompensation und Restitution sind.12 Hier tritt das Nicht-Identitätsproblem deshalb nicht auf, weil die Identität des Opfers, nämlich die Identität der Gruppe, als gleichbleibend angenommen wird. Wenigstens drei Probleme lassen sich mit Blick auf diese Interpretation unterscheiden: Können Gruppen als solche Träger moralischer Ansprüche sein? Diese Annahme ist mit dem liberale politische Philosophie kennzeichnenden normativen Individualismus nicht vereinbar. Handelt es sich tatsächlich um dieselbe Gruppe? Insofern die Gruppe beispielsweise mit dem identifiziert wird, was sie für ihre Mitglieder und für die Nachfahren der früheren Mitglieder der Gruppe bedeutet und leistet, sind häufig erhebliche Veränderungen seit dem historischen Unrecht festzustellen. Ist auch angesichts der Bedeutung und der Leistungen der heute bestehenden Gruppe von einer Schädigung aufgrund historischen Unrechts auszugehen und sind Kompensations- und Restitutionsansprüche plausibel? Diese Frage verweist auf das Problem der Signifikanz hypothetischer Geschichtsverläufe (Abschnitt 2) und die Möglichkeit, dass historische Ansprüche durch veränderte Umstände (und damit einhergehende konfligierende Ansprüche anderer) in der Gegenwart überholt sind (Abschnitt 3). Zweitens unterbreiten Kumar und Silver den Vorschlag, dass heute lebende Personen für sie wichtige, ihre Identität mitkonstituierende Merkmale mit früher lebenden Menschen teilen, denen schlimmes Unrecht zugefügt wurde. Deshalb erleiden auch die heute lebenden Personen ein Unrecht, ohne dass sie durch das historische Unrecht geschädigt 11 12

Siehe mein "Past and Future". Hierzu siehe auch schon den Beitrag von D. Lyons, "The New Indian Claims and Original Rights to Land", 249-72,27 If.

14

Lukas H. Meyer

wären, nämlich solange das an Menschen mit ihren Merkmalen verübte Unrecht nicht in angemessener Weise restituiert wurde. Für die Feststellung, dass heute lebende Personen Unrecht erleiden, ist der Umstand, dass das frühere Unrecht notwendige Bedingung der Existenz und Identität eben dieser Menschen ist, deshalb von keiner Bedeutung, weil die Identität der heute lebenden Opfer als Individuen irrelevant ist und das in Frage stehende Unrecht als unabhängig von der Schädigung der früher lebenden Vorfahren gedacht wird. Allerdings wirft diese Interpretation ihrerseits Fragen auf. Selbst wenn wir mit den Autoren die Plausibilität des dem Werk Tim Scanions13 entlehnten Verständnisses von Unrecht voraussetzen, ist es doch zweifelhaft, dass die historischen Ansprüche der Nachfahren etwa der U.S.-amerikanischen Sklaven zutreffend interpretiert sind, wenn die andauernden Konsequenzen der Sklaverei für das Wohlbefinden der Nachfahren unberücksichtigt bleiben. Sollen sie im Sinne der Schädigung indirekter Opfer als Individuen berücksichtigt werden, bedarf es einer Lösung des Nicht-Identitätsproblems. Drittens weist Thomas Pogge darauf hin, dass die Legitimität von andauernden Institutionen davon abhängen kann, ob die prozeduralen und anderen Bedingungen, denen sie ihre Existenz verdanken, fair gewesen sind. Sind Entstehungsbedingungen von Institutionen unfair oder Ausdruck historischen Unrechts gewesen, wie dies etwa für den Ausschluss der Frauen von politischen Entscheidungen gilt und auch für den rechtlichen oder effektiven Ausschluss von Sklaven, früheren Sklaven und deren Nachfahren von Entscheidungen über die Regelungen zur Distribution und Sicherung von Eigentum in den USA, so haftet diesen Entscheidungen, gesetzlichen Regelungen und den auf ihnen beruhenden Institutionen ein Makel an und zwar unabhängig davon, wie wir diese Entscheidungen heute in ihren Konsequenzen und in der Sache beurteilen. Pogge vertritt die Auffassung, dass ein solcher Makel Grund für die Änderung der Regelungen sein kann, jedenfalls aber für eine Überprüfung dieser Regelungen unter fairen Bedingungen heute. Auch für die Idee überlebender Pflichten mit Blick auf heute tote Menschen ist das Nicht-Identitätsproblem von keiner Relevanz. Die Konsequenzen früherer Schädigung stehen nicht zur Debatte, und es wird auch nicht angenommen, dass heute lebende Menschen durch ihr Handeln Verstorbene schädigen oder begünstigen können. Entscheidend sind vielmehr die Implikationen der zukunftsorientierten Rechte früher lebender Personen für den Ausweis von Pflichten gegenwärtig lebender Menschen mit Blick auf die früher lebenden Rechtsträger. Ist femer plausibel, dass Menschen generell ein Interesse an einem ihren Handlungen entsprechenden, verdienten, auch posthumen Ruf haben, und ist ihr Ruf dadurch schwer beschädigt, dass ihnen schlimmes oder schlimmstes Unrecht angetan wurde, ohne dass sie als Opfer solchen Unrechts öffentlich Anerkennung finden und die Täter als solche identifiziert sind, dann können gegenwärtig lebende Menschen mit Blick auf sie unter der Pflicht stehen, sie öffentlich als Opfer solchen Unrechts zu erinnern. Diese überlebende Pflicht wird als Pflicht zur symbolischen Kompensation interpretiert. Meyer vertritt die vergangenheitsorientierte Position überlebender Pflichten allerdings nur in Ergänzung zu einer zukunftsorientierten der Kompensation für die andauernden schädigenden Konsequenzen historischen Unrechts, und letztere setzt die Lösung des Nicht-Identitätsproblems voraus.14

13 14

T.M. Scanion, What We Owe To Each Other. Untersuchen wir die Ansprüche der überlebenden direkten Opfer von Unrecht, z.B. von Unrecht, das unter einem früheren Regime begangen wurde, ist das Nicht-Identitätsprobiem offensichtlich von keiner Relevanz. Dazu siehe Abschnitt 5 unten.

Einleitung

2. 2.1

15

Die Relevanz hypothetischer Geschichtsverläufe15 Epistemische Probleme und Freiheit der Entscheidung

Nach Auffassung vieler soll zur Bestimmung historischer Ansprüche indirekter Opfer der Vergleich des tatsächlichen Zustands der Welt mit dem hypothetischen, der bestünde, wäre das Unrecht nicht geschehen, relevant sein. Wie betont setzte diese Auffassung eine Lösung des Nicht-Identitätsproblems voraus, die ihrerseits mit dieser Auffassung vereinbar ist. (Oder man klammert für den Zweck der Untersuchung das NichtIdentitätsproblem aus.)16 Die Überlegung fußt auf der Intuition, dass es indirekten Opfern heute nicht schlechter gehen sollte, als es ihnen gegangen wäre, wären ihre Vorfahren nicht Opfer von Unrecht gewesen. Jeremy Waldron ist der Auffassung, dass wir nicht wissen können, wie es Menschen heute ginge, wäre das Unrecht nicht geschehen. Zudem sei der Geschichtsverlauf von den freien Entscheidungen von Akteuren abhängig und unsere Spekulation darüber, wie Menschen sich unter den hypothetischen Bedingungen entschieden hätten, sei von keiner normativen Relevanz für die Einschätzung, was heute lebenden Menschen zusteht.17 2.2

Unterlassungen in der realen und Leistungen in der hypothetischen Welt

Auch George Sher hält die epistemischen Probleme der Überlegung für enorm, und führt aus, dass, so die Überlegung mit Blick auf Unrecht mit andauernder Schädigungswirkung relevant sei, wenigstens zwei Faktoren zu berücksichtigen sind. Diese Faktoren betreffen, was Personen aufgrund ihrer Unterlassungen und Handlungen verdientermaßen zukommt. Die hypothetischen Zustände der Welt, die ohne die Schädigung aufgrund der Verletzung von Eigentumsrechten und ohne anderes schädigendes Unrecht bestünden, seien nicht unmittelbar relevant für die Bestimmung der Kompensationsansprüche heute lebender (indirekter) Opfer. Die Relevanz sei in dem Maße unterminiert, indem, erster Faktor, die tatsächlichen Ansprüche einer Person in der Welt, in der wir leben, durch dieser Person zuschreibbare Unterlassungen verringert sind, und, zweiter Faktor, die Ansprüche einer Person in der hypothetischen Welt auf ihre Leistungen in eben dieser Welt zurückzuführen sind. Deshalb könne die tatsächlich heute lebende Person nicht all die Güter beanspruchen, über welche die Person in der hypothetischen Welt zu Recht verfügte, sondern habe bestenfalls einen Anspruch auf die "opportunity to acquire these entitlements".18 Die Möglichkeit des Erwerbs der Ansprüche ist von deutlich geringerem Wert als die Realisierung der Ansprüche. 15 16

17

18

Hierzu siehe auch D. Lyons, 'The New Indian Claims and Original Rights to Land". Während im vorliegenden Band Jeremy Waldron die Relevanz des Nicht-Identitätsproblems betont, aber keine Lösung anbietet, erwähnt George Sher Lösungen des Problems, ohne sie eingehend zu diskutieren. Robert Nozicks Theorie der Gerechtigkeit gründet unsere Pflichten in vergangenheitsorientierter Überlegung. Auch Nozick betont die epistemischen Schwierigkeiten bei der Feststellung, was Menschen heute besäßen, hätte es die Ungerechtigkeiten (verübt an früher lebenden Menschen) nicht gegeben. Er vertritt aber die generalisierte Vermutung, dass die heute Schlechtestgestellten zu denen gehören, die auch durch die Konsequenzen historischen Unrechts benachteiligt sind. Nozick schlägt vor, Rawls' Differenzprinzip - ein zukunftsorientiertes Prinzip distributiver Gerechtigkeit solle als ein "rough rule of thumb for rectifying" historische Ungerechtigkeit dienen. Siehe R. Nozick, Anarchy, State, and Utopia, 152f, 231. Damit ist noch nichts gesagt zum Problem der Nichtanwendbarkeit eines identitätsabhängigen Begriffs der Schädigung. Dieser Band, 140.

16

Lukas H. Meyer

Dies gelte für weit zurückliegendes Unrecht ebenso wie für Unrecht aus jüngster Vergangenheit, sei aber, so Sher, besonders signifikant für weit zurückliegendes Unrecht. Denn die Faktoren beeinflussen die Ansprüche der unmittelbaren Nachfahren der Opfer von Unrecht, sowie erneut die Ansprüche von deren Nachfahren usw. - mit dem Resultat, dass je weiter das Unrecht zurückliegt, desto stärker die tatsächlichen Handlungen der Akteure seitdem ausschlaggebend sind für die Bestimmung der gegenwärtigen Ansprüche gegenwärtig lebender Menschen in der Welt, in der sie leben. Im Ergebnis vertritt Sher die Auffassung, dass die Gründe für Kompensation mit der Zeit schwächer werden, dass also weit in der Vergangenheit zurückliegendes Unrecht ("ancient wrongs") heute keine bedeutenden Kompensationsansprüche nach sich zieht, und jüngstes Unrecht in der Regel stärkere Kompensationsansprüche als weiter in der Vergangenheit zurückliegendes Unrecht nach sich zieht. Differenzierungen sind allerdings möglich. Unrecht wirkt sich unterschiedlich auf die betroffenen Personen aus und auch auf die Faktoren, die nach Auffassung von Sher die temporale Abschwächung der Kompensationsansprüche erklären. Wenn wie im Falle der Sklaverei sich das Unrecht über die Generationen stark negativ auf die Möglichkeit der Betroffenen auswirkt, die ihnen offen stehenden Optionen auch zu nutzen, dann sind die Kompensationsansprüche der heute Lebenden stärker. Denn ihre Unterlassungen (und die Unterlassungen ihrer Vorfahren) sind dem schädigenden Unrecht zuzuschreiben und nicht ihnen selbst. 3. 3.1

Die Aufhebung historischer Ansprüche aufgrund veränderter Umstände ?

17

"that people have a natural duty to enter into political society with those with whom they find themselves in a condition of unavoidable co-existence". Denn dieses Prinzip könne für folgenden Typ von Situation Geltung beanspruchen: Menschen haben unrechtmäßig Land besiedelt, z.B. die Kolonisatoren Neuseelands, heute aber haben ihre Nachfahren in der vierten, fünften oder noch späteren Generation "nowhere to return to". Dann aber haben sie und die Nachfahren derer, die von ihren Vorfahren angegriffen und enteignet wurden, also die Nachfahren der indigenen Bevölkerung Neuseelands, "nothing to do but to come to terms with one another and establish a fair basis for sharing the lands and resources that surround them."21 Die heutigen Bewohner Neuseelands stehen also unter der Pflicht, eine (distributiv) gerechte politische Ordnung einzurichten und zu erhalten. In Erfüllung dieser Pflicht sind die Konsequenzen historischen Unrechts für das Wohlbefinden gegenwärtig lebender Menschen zu berücksichtigen. Waldrons These der Aufhebung von historischen Ansprüchen durch Änderung der Umstände ist nicht gleichermaßen für alle historischen Ansprüche relevant. Genuin vergangenheitsorientierte Ansprüche und Pflichten wegen historischem Unrecht, die für das Wohlergehen heute lebender Menschen irrelevant oder wenig relevant sind - etwa die Ansprüche, die sich auf die mangelhafte historische Legitimität von Institutionen im Sinne der Überlegung Pogges beziehen, oder die überlebenden Pflichten zu symbolischer Kompensation, für deren Begründung die schädigenden Konsequenzen früheren Unrechts für heute lebende Menschen irrelevant sind - sind der Möglichkeit der Aufhebung durch veränderte Umstände und damit einhergehende konkurrierende Ansprüche gegenwärtig lebender Menschen entzogen.

Jeremy Waldrons Aufhebungsthese

Jeremy Waldron vertritt die "supersession"- oder, wie ich sie nennen werde, die Aufhebungsthese: Auch Eigentumsansprüche (und Ansprüche auf Restitution von Eigentum) sind abhängig von den Umständen und häufig sind die Umstände heute dramatisch andere als zu dem Zeitpunkt, zu dem die Eigentumsrechte verletzt wurden. Die auf Unrecht fußenden Ansprüche können aufgrund veränderter Umstände ihre Geltung einbüßen. Die Signifikanz historischen Unrechts hängt von den Umständen ab. Im vorliegenden Beitrag, wie in früheren Veröffentlichungen,20 bezieht Waldron die These der Aufhebung historischer Ansprüche auf die Ansprüche der indigenen Bevölkerung Neuseelands, der Maori, und behauptet: Selbst wenn die anderen Zweifel an der Grundlage des Anspruchs auf Restitution des den Maori von den Kolonisatoren illegitim genommenen Heimatlandes ausgeräumt sind - insbesondere der Zweifel daran, dass die heute lebenden Maori als Träger der Ansprüche der Gruppe der Maori gelten können, deren Eigentumsrechte verletzt wurden -, so haben heute doch andere als die Nachfahren der Maori legitime Ansprüche auf das Land und für die Nachfahren der Maori ist Eigentum an dem Land von anderer und normativ geringerer Signifikanz. Jedenfalls sei eine Eigentumstheorie generell nur plausibel, wenn sie uns zu berücksichtigen erlaube, dass Eigentumsansprüche an beschränkten Ressourcen ihre Geltung ob veränderter Umstände einbüßen können. Waldron plädiert dafür, den zukunftsorientierten distributiven Gerechtigkeitsansprüchen der gegenwärtig (und zukünftig) lebenden Bewohnern, etwa Neuseelands, Priorität einzuräumen. Diesen zukunftsorientierten Ansatz der Interpretation der Signifikanz historischen Unrechts versteht Waldron als Ausdruck des Kantschen "proximity principle", nämlich 19 20

Einleitung

Hierzu siehe auch D. Lyons, 'The New Indian Claims and Original Rights to Land". Siehe insbesondere J. Waldron, "Superseding Historie Injustice".

3.2

Die identitätsstiftende Bedeutung von Land und der Anspruch der Palästinenser auf Rückkehr

Andrei Marmor, Andreas F0llesdal und Paul Patton fragen, was Waldrons Aufhebungsthese zur Einschätzung spezifischer historischer Ansprüche auf Land beiträgt. Mit Chaim Gans teilen sie die Auffassung, dass die identitätsstiftende historische Beziehung einer Gruppe zu einem Territorium einen besonderen Anspruch auf dieses Land und gegebenenfalls auch auf die Restitution des Landes begründen kann. Ein derart begründeter historischer Anspruch auf Land ist allerdings dem zukunftsorientierten Ansatz zur Begründung der Rechte nationaler Gruppen auf Souveränität über ein Territorium untergeordnet: Ob eine Gruppe ein Recht auf Selbstbestimmung hat, ist, so Gans, eine Frage distributiver Gerechtigkeit. Historische Rechte können nur dazu beitragen zu bestimmen, auf welchem Territorium die Gruppe gegebenenfalls ihr Recht ausüben darf. In seiner Kritik historischer Rechte unterscheidet Gans genauer erstens zwei Interpretationen historischer Rechte nationaler Gruppen auf Souveränität über ein bestimmtes Territorium, zweitens zwei Ansprüche, die das Recht ausmachen, und, drittens, zwei Typen von Begründungen solcher Ansprüche. Gemäß der ersten Interpretation des gemeinten historischen Rechts hat eine Gruppe dieses Recht, weil sie das Territorium als erste besetzte, und gemäß der zweiten, weil das Territorium in der Geschichte der Gruppe eine besondere, identitätsstiftende Rolle einnimmt, die Gruppe eine besondere Beziehung zu diesem Territorium hat. Die zwei Ansprüche sind: der Anspruch auf Souveränität über ein Territorium, nämlich der Anspruch, die ungeteilte Macht zu haben, Entscheidungen darüber zu treffen, wer auf einem Territorium leben darf, und wie das Territorium und dessen Ressourcen zu genießen und zu nutzen sind; zweitens, der An21

Für die Zitate siehe den Beitrag von Waldron, 57.

18

Lukas H. Meyer

spruch, Souveränität über ein bestimmtes Territorium auszuüben. Die zwei Begründungstypen sind einerseits die Begründung des Erwerbs und der Erhaltung territorialer Rechte aufgrund von Überlegungen der gerechten Verteilung unter allen Anspruchsträgern und zweitens die Begründung der Restitution territorialer Rechte aufgrund von Überlegungen korrektiver Gerechtigkeit. Gans vertritt die Auffassung, dass restitutive Ansprüche sich auf die Herstellung oder Wiederherstellung distributiv gerechter Verhältnisse beziehen müssen - korrektive Ansprüche also abhängig sind von distributiven und nicht umgekehrt.22 Der Autor vertritt folgende substantielle Thesen: Keine der beiden Interpretationen des Rechts kann die Souveränität über ein bestimmtes Territorium begründen. Beide Interpretationen können begründen helfen, auf welchem Territorium eine nationale Gruppe ihr Recht auf Selbstbestimmung ausüben soll, wenn es als distributiv gerecht gilt, dass die Gruppe ein Recht auf Selbstbestimmung ausübt. Dabei kann Erstbesetzung zur Begründung beitragen, dass die Gruppe weiterhin auf einem bestimmten Territorium ihr Recht auf Selbstbestimmung ausüben können soll, während die identitätsstiftende Bindung an ein Territorium den Anspruch einer Gruppe auf Restitution begründen helfen kann, in ihr Recht auf Selbstbestimmung auf diesem Territorium restituiert zu werden, und besonders (aber nicht ausschließlich) dann, wenn die derzeit auf dem Territorium lebende Gruppe mit illegitimen Mitteln verhindert hat, dass die Gruppe mit dieser besonderen Beziehung zum Territorium ihr Recht auf Selbstbestimmung auf diesem Territorium ausübt. Für seine These, dass keine der beiden Interpretationen Souveränitätsrechte über ein bestimmtes Territorium begründen kann, spricht nach Auffassung von Gans, dass Erstbesetzung als solche keine normativ wichtigen Interessen mit sich bringt, und die besondere Bindung an ein Territorium einer Gruppe mit wichtigeren anderen Interessen anderer Gruppen oder einer Bindung eben dieser Art konfligieren können. Für seine Behauptung, dass Erstbesetzung bei der Begründung eines Anspruchs auf Restitution keine Rolle spielen kann, spricht, dass Erstbesetzung normativ relevante Interessen bestenfalls dann ausweisen kann, wenn das Territorium nach Erstbesetzung weiterhin auch bewohnt wird. Schließlich spricht für die Behauptung, dass die identitätsstiftende Bindung an ein Territorium Restitutionsansprüche begründen kann, dass die Ausübung eines Rechts auf Selbstbestimmung durch eine nationale Gruppe verlangt, dass diese im Heimatland lebt, und Versuche, dem jüdischen Volk die Ausübung des Rechts außerhalb des Landes, zu dem es in einer identitätsstiftenden Beziehung steht, zu ermöglichen, gescheitert sind, also ein distributiv gerechter Anspruch auf Selbstbestimmung womöglich nur auf einem spezifischen Territorium realisiert werden kann. Angesichts der häufigen Konflikte des Rechts einer nationalen Gruppe auf Souveränität über ein bestimmtes Territorium mit wichtigen Interessen von Menschen, die nicht Mitglieder dieser Gruppe sind, auf diesem Territorium zu leben - auch weil sie als Mitglieder einer anderen nationalen Gruppe in ähnlich identitätsstiftender Beziehung zum selben Territorium stehen - plädiert Gans dafür zu prüfen, ob die berechtigten Interessen von Mitgliedern einer nationalen Gruppe mit Blick darauf, ihr Leben auf dem Territorium zu führen, das für sie identitätsstiftend ist, nicht schwächere Ansprüche als den Anspruch auf Souveränität begründen kann, nämlich auf das subsouveräne nicht-exklusive Recht der Selbstbestimmung im Heimatland. Dieses Recht lässt sich mit dem glei22

Gans bezieht also eine spezifische Position zum Verhältnis zwischen kompensatorischer oder korrektiver und distributiver Gerechtigkeit, nämlich, dass kompensatorische Gerechtigkeit Prinzipien für die Wiederherstellung oder den Erhalt distributiv gerechter Verhältnisse liefert. Siehe oben Fn. 6.

Einleitung

19

chen Recht einer anderen oder anderer Gruppen und auf ein- und demselben Territorium realisieren und mit anderen Interessen anderer auf die Nutzung desselben Landes ausgleichen. Gans deutet an, dass die Ansprüche auf Selbstbestimmung des palästinensischen und des jüdischen Volkes in Palästina und Israel sich in diesem Sinne gleichermaßen realisieren lassen. Andrei Marmors Studie zum palästinensischen Recht auf Rückkehr in ihr Heimatland und auf Restitution ihres Eigentums betont im Sinne der Thesen von Gans die normative Signifikanz des identitätsstiftenden Territoriums für die restitutiven Ansprüche einer Gruppe. Historische Ansprüche, die sich auf die identitätsstiftende Bedeutung eines Territoriums stützen, sind, so Marmor, besonders dauerhaft. Für den Zweck seiner Analyse und Diskussion beschränkt sich Marmor auf die Kategorie palästinensischer Flüchtlinge, die aufgrund der Vertreibung durch die israelische Armee während des Krieges 1948 und der Konfiszierung ihres Eigentums durch Israel besonders Not leidend sind, nämlich die Flüchtlinge, die nach wie vor in Flüchtlingslagern in Jordanien, Syrien und dem Libanon sowie der West Bank und im Gaza-Streifen leben, und deren Zahl auf zwischen 900 000 und 1,5 Millionen geschätzt wird. Marmor untersucht unter anderem das Argument, der Anspruch dieser Flüchtlinge auf Rückkehr und Restitution ihres Eigentums sei durch veränderte Umstände aufgehoben, weshalb kein individueller Anspruch auf Rückkehr dieser Palästinenser bestehe. Marmor untersucht verschiedene Interpretationen des Arguments: Das schwächste sei das Argument, das sich auf die Idee der "adverse possession" berufe, also die Idee, Eigentumsrechte an Land, das jemand anderem gehöre, können unter Umständen durch dauerhafte Nutzung des Landes und Investition in das Land erworben werden. Denn, wie immer diese Doktrin im Besonderen aufgefasst werde, bestünde doch Einigkeit darüber, dass Rechte durch "adverse possession" nicht gegen den kontinuierlichen und ausdrücklichen Protest des ursprünglichen Eigentümers erworben werden können. Der Protest der Palästinenser sei während der ganzen Zeit ihres Exils nicht zu überhören gewesen. Gegen eine Interpretation des Arguments im Sinne einer Anwendung der Aufhebungsthese von Jeremy Waldron sprechen nach Auffassung von Marmor wenigstens zwei Gesichtspunkte: Erstens handele es sich bei dem Anspruch auf Realisierung der kollektiven Selbstbestimmung auf dem für die Gruppe identitätsstiftenden Territorium um ein Recht, das für die Autonomie der Mitglieder der Gruppe auch dann wichtig bleiben könne, wenn sie über einen längeren Zeitraum an der Realisierung des Rechts mit illegitimen Mitteln gehindert werde. Zweitens hänge die Möglichkeit der Aufhebung ihres Rechts auf Eigentum auch davon ab, von welcher Wichtigkeit das Gut für das Überleben und die Autonomie des Opfers ist und ob das Opfer das Gut ersetzen kann. Im Falle der auf den Status von Flüchtlingen reduzierten Palästinensern, die wenig Möglichkeiten hätten, aus dieser Lage zu entkommen, spräche viel für die Dauerhaftigkeit ihrer Ansprüche auf Rückkehr und Restitution. Veränderte Umstände könnten aber zur Qualifikation dieser Ansprüche führen. Weil in der Zwischenzeit Israelis zum Teil erheblich in das frühere Eigentum der Palästinenser investiert haben, dürfte es häufig angemessen sein, dass die Palästinenser nicht einfach dorthin zurückkehrten, von wo sie vertrieben wurden. Gegen einfache Restitution spräche auch, wenn solche den derzeitigen Nutzem des Eigentums besonders schwere Lasten aufbürde. Allerdings dürfe daraus nicht geschlossen werden, dass Eigentum, das nicht zurückgegeben werden könne, durch monetäre Leistungen angemessen kompensiert werden könne. Dem Anspruch auf Rückkehr ins Heimatland sei unter solchen Umständen eher dadurch zu entsprechen, dass die Palästinenser gegebenenfalls andernorts, aber auf dem Territorium ihres Heimatlandes Eigentum erhielten. Es wäre offensichtlich

20

Lukas H. Meyer

ungerecht, weil willkürlich, so Marmor, diesen Anspruch auf das Gebiet der Westbank und des Gaza-Streifen zu beschränken, denn Israel sei für das Flüchtlingsproblem verantwortlich und habe keinen privilegierten Anspruch auf bestimmtes Land in Israel/Palästina, das für sie ebenso wie für die Palästinenser von identitätsstiftender Bedeutung sei: die Ergebnisse der Kriege und israelischen Besetzungen von 1948 und 1967 seien bestenfalls von pragmatischer Bedeutung für die Frage der distributiv gerechten Aufteilung des Landes unter Israelis und Palästinensern. In seinem Kommentar diskutiert Chaim Gans die normative Signifikanz der Grenzen 1967 für eine Lösung des Konflikts. Gans plädiert dafür, den Anspruch der Palästinenser auf Rückkehr in ihr Heimatland in Ausübung ihres Rechts auf Selbstbestimmung zu vermitteln mit dem Selbstbestimmungsrecht der Juden im Sinne eines liberalen Zionismus, das er für legitim hält. 3.3

Der Anspruch indigener Gruppen auf Restitution der Kontrolle über identitätsstiflendes Territorium

Die normative Signifikanz der identitätsstiftenden Beziehung indigener Völker zu ihrem Heimatland betonen Andreas F0llesdal und Paul Patton. Die Ansprüche indigener Völker auf Kontrolle über ihr Land bestehen auch viele Jahre nach deren Vertreibung und Enteignung fort: Diese Ansprüche sind aufgrund der Überlegungen, die Waldron zugunsten seiner Aufhebungsthese anführt, zu qualifizieren, nicht aber ihrer Geltung enthoben. Wie Gans und Marmor bemüht sich Andreas F0llesdal um die Vermittlung einer vergangenheitsorientierten Interpretation der normativen Signifikanz historischen Unrechts und den zukunftsorientierten Ansprüchen distributiver Gerechtigkeit. Historisches Unrecht kann korrektive (restitutive und kompensatorische) Ansprüche nach sich ziehen. Handlungen seien dann als Unrechtshandlungen zu identifizieren, wenn sie im Sinne der Theorie Scanions23 die hypothetisch-kontraktualistische Zustimmung nicht hätten finden können. Die Feststellung, dass das Verhalten früherer Akteure als Unrecht in diesem Sinne einzuschätzen ist, erlaube zwar keine Antwort auf die Frage, wie die Welt heute aussähe, wäre das Verhalten aller Akteure immer zustimmungsfähig gewesen; in Verbindung aber mit der begründeten Vermutung, das frühere Unrecht wirke sich negativ auf das Wohlergehen der heute lebenden indirekten Opfer aus, sei diese Feststellung hinreichend, um Ansprüche auf Restitution und Kompensation zu begründen, die sich auf den Interessen der heute lebenden indirekten Opfer gründen.24 Deren Interessen seien jedenfalls im Falle der indigenen Gruppen nach wie vor von dem Zustand geprägt, der vor der Rechtsverletzung bestand: die heute lebenden Mitglieder indigener Völker haben ein Interesse, autonom ihre eigene Lebensform zu erhalten und zu pflegen, und dies setze in ihrem Fall voraus, dass sie über die Nutzung ihres Heimatlandes oder jedenfalls bestimmter Territorien desselben die Kontrolle wiedererlangen. Folgen wir F0llesdal so beruht der Wert der Mitgliedschaft in kulturellen Gruppen auf dem Interesse von Menschen, ihre Zukunft korrekt vorhersagen zu können und legitime Erwartungen zu formen, die von anderen geachtet werden. Die Kontrolle zu haben über kulturelle Änderungen dient dem Schutz dieses Interesses. Wenn Menschen als Mitglieder einer kulturellen Gruppe solche Kontrolle ausüben, dann ist es ihnen auch eher möglich, so F0llesdal, auf Änderungen der ihnen offen stehenden kulturell vermittelten Optionen durch die Revision ihrer Lebensentwürfe und Pläne zu reagieren. 23 24

Siehe T.M. Scanion, What We Owe to Each Other. Siehe auch die generalisierte Vermutung Nozicks (Fn. 17 oben).

Einleitung

21

Zum Beispiel können veränderte sozioökonomische und ökologische Bedingungen solche Änderungen mit sich bringen. F0llesdal vertritt nun die Auffassung, dass die Ansprüche indigener Gruppen auf Kontrolle kultureller Änderungen stärker sind als etwa die Ansprüche nationaler Minderheiten. Denn indigene Gruppen waren typischerweise als Gemeinschaften gefasst, die de facto Kontrolle über Ressourcen und Land ausgeübt und soziale, ökonomische, kulturelle oder politische Institutionen unterhalten haben, bevor Gruppen, die das Land kolonisierten, das Territorium in einen Staat einverleibten und die Institutionen der indigenen Gruppen zerstörten oder den neu eingerichteten Institutionen des Staates unterordneten. Typisch sei außerdem, dass die indigenen Gruppen bis heute transgenerationellen Bestand haben, so dass auch heute die Kultur der Gruppe die Erwartungen der Mitglieder prägt, auch wenn die Neuankömmlinge und ihre Nachfahren schon für lange Zeit Kontrolle über das Land der indigenen Gruppe ausüben. Die Kolonisation ihres Landes ist, so F0llesdal, eine illegitime Verletzung des Anspruchs der indigenen Gruppe auf Kontrolle über kulturelle Änderung und sie misst sich an ihrer damalig unbeschränkten Selbstbestimmung und Kontrolle über das Land. Das Unrecht besteht nicht nur in der Verletzung von Eigentumsrechten der Gruppe (die besonders bei kommunalem und religiös bedeutsamem Eigentum wichtig sind), sondern auch der ihre Lebensform ausmachenden besonderen Praktiken, die Eigentum oder Kontrolle voraussetzen (etwa im Falle der nomadischen Lebensweise den freien Zugang zum Land). Außerdem werden durch die Kolonisation des Landes nicht nur berechtigte Erwartungen verletzt, sondern es wird auch die Bildung von Erwartungen unter fairen Bedingungen verhindert. Und insbesondere wird den indigenen Gruppen die Möglichkeit genommen, Institutionen und Praktiken zu kontrollieren, die kulturell geprägte Projekte ermöglichen und Erwartungen der Mitglieder der Gruppe in Verfolgung der gruppenspezifischen Projekte prägen. Aufgrund dieser andauernden negativen Konsequenzen für eine transgenerationell stabile Gruppe reicht monetäre Kompensation nicht aus. Vielmehr ist ein vergangenheitsorientierter, auf die Wiederherstellung eines Zustands der Kontrolle über kulturelle Änderung zielender, korrektiver Anspruch anzuerkennen, auch wenn ein solcher Anspruch auf Kontrolle des Landes heute mit den Interessen der nicht-indigenen Bevölkerung des Landes vermittelt werden muss. Der Anspruch zielt nicht auf die Herstellung des Zustands heute, der bestehen würde, hätte es in der Vergangenheit kein Unrecht und keine Rechtsverletzungen gegeben, sondern auf die Anerkennung eines trotz des Unrechts jedenfalls im Falle indigener Gruppen fortbestehenden Anspruchs auf Kontrolle kultureller Veränderungen ihrer Lebensform unter modernen Bedingungen. Solche Kontrolle erfordert in der Regel keine Sezession des indigenen Volkes im Sinne der rechtlichen und politischen Souveränität über ein Territorium. Es geht vielmehr um die Herstellung von Bedingungen fairer Kooperation unter allen heutigen Bewohnern des Landes und einer fairen Distribution der Ressourcen, wobei anzuerkennen ist, dass die einstmals im Vollsinne realisierten Ansprüche der indigenen Gruppe auf Kontrolle der Veränderungen ihrer Kultur unrechtmäßig verletzt wurden und die heute lebenden Mitglieder der Gruppe einen legitimen Anspruch darauf haben, solche Kontrolle wiederzuerlangen. Häufig wird dies die Förderung und Anerkennung einer politischen und kulturellen Autonomie der indigenen Gruppe unterhalb des Niveaus der Souveränität durch quasi-föderale Strukturen und besondere Repräsentationsrechte erfordern sowie besondere Rechte der Kontrolle und Verfügung über Land und insbesondere von solchem Land, das eine herausragende kulturelle und religiöse Bedeutung für die Gruppe hat.

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Paul Patton unterstreicht, dass ein vergangenheitsorientierter Ansatz der Interpretation historischen Unrechts die Frage nach der Relevanz hypothetischer Geschichtsverläufe für die Feststellung der Ansprüche gegenwärtig lebender Menschen aufwerfe, der insbesondere Waldron und Sher in diesem Band nachgehen. Aber Patton hält einen vcrgangenheitsorientierten Ansatz korrektiver Gerechtigkeit für unverzichtbar: Selbst wenn wir mit Waldron die Möglichkeit der Aufhebung der Ansprüche wegen historischen Unrechts annehmen, beantworte dies nicht schon die Frage, ob im post-kolonialen Kontext mit Blick auf alle unrechtmäßigen Verletzungen der Ansprüche indigener Bevölkerungen eine Aufhebung von deren Ansprüchen anzunehmen ist und deshalb die rein zukunftsorientierte Betrachtung distributiver Gerechtigkeit normativ angemessen ist. Gegen einen exklusiv zukunftsorientierten Ansatz distributiver Gerechtigkeit spreche, dass ein solcher Ansatz die Begründung von Ansprüchen aufgrund der Verletzung durch historisches Unrecht ausschließe. Denn für die Begründung von Ansprüchen heute lebender Menschen (und auch als Mitgliedern von indigenen Völkern) sei gemäß einer rein zukunftsorientierten Theorie distributiver Gerechtigkeit zwar deren unverschuldete Schlechterstellung relevant, nicht aber die besonderen Gründe für diese Schlechterstellung, also das historische Unrecht. Diese sind bestenfalls von pragmatischer Relevanz. Wenn allerdings die Aufhebung der historischen Ansprüche nicht vollständig ist, wenigstens einige Ansprüche korrektiver Gerechtigkeit nach wie vor Geltung haben, dann ist zu klären, welche Ansprüche der indigenen Bevölkerungen überlebt haben und wie diese unter heutigen Bedingungen zu realisieren sind. Für eine angemessene Antwort dieser Frage seien die schon genannten Gerechtigkeitsdimensionen, die der korrektiven und der distributiven Gerechtigkeit unverzichtbar, und darüber hinaus eine dritte, die der relationalen Gerechtigkeit. Letztere hebt ab auf die Pflichten der wechselseitigen Anerkennung und des Respekts zwischen Gruppen und im untersuchten Kontext auf die Verletzung dieser Pflichten gegenüber den indigenen Bevölkerungen durch die Neuankömmlinge und Siedler. Die Relevanz jedes dieser Ansätze sei kontext-relevant. Mit Blick auf die Ansprüche indigener Gruppen sei zum Beispiel der auf Restitution zielende vergangenheitsorientierte Ansatz besonders relevant in den USA, weil dort gewöhnlich Verträge zwischen den Siedlern und den indigenen Bevölkerungen geschlossen wurden, deren Verletzung durch U.S.-amerikanische staatliche Institutionen Rechtsansprüche der indigenen Bevölkerungen auf Restitution begründen können und die heute einklagbar sind. Wenn aber, wie in Australien, das Land unter Vorgabe der terra nullius Doktrine von den Europäern angeeignet wurde, dann stelle das eine extreme Form der Verweigerung jedweder Anerkennung der Autorität eines schon existierenden indigenen Rechts und indigener Sitten dar, und es liege nahe, dieses Unrecht im Sinne der Verletzung relationaler Gerechtigkeitsforderungen zu interpretieren.25 Dieser Ansatz, jedenfalls wie James Tully ihn verstünde, erkläre aller25

Anders als bei der Kolonisierung des nordamerikanischen Kontinents und Neuseelands sind bei der Kolonisierung Australiens keine Verträge mit den Ureinwohnern geschlossen worden, weil man diesen Gruppen die Völkerrechtsfähigkeit absprach und ihre Gebiete als terra nullius betrachtete. Zu den Verträgen mit den indianischen Ureinwohnern Nordamerikas siehe F.P. Prucha, American Indian Treaties; C.N. Eick, Indianerverträge in Nouvelle-France. Zu deren Rechtslage siehe J.W. Singer, Introduction to Property, Kap. 15 "American Indian Property". Zur rechtlichen Situation der australischen Aborigines vor dem Mabo Urteil des High Court (1992) (Mabo and Others v State of Queensland vom 3. Juni 1992, siehe The Mabo Decision.) siehe H. Reynolds, Aboriginal Sovereignty, Kap. 4; J. Chesterman und B. Galligan, Citizens without Rights, Kap. 7. Für eine skeptische Interpretation der normativen Signifikanz der Verträge mit Ureinwohnern im Kolonisierungsprozess für deren Ansprüche heute siehe insbesondere R.E. Goodin, "Waitangi Tales", 309-33. Zu den Unterschieden und Gemeinsamkeiten der Interpretation des Common Law Besitztitels auf Land der

Einleitung

23

dings nicht, welche Relevanz ein hypothetischer Geschichtsverlauf, bei dem die Ansprüche der indigenen Bevölkerungen auf Anerkennung und Respekt nicht verletzt worden wären, für die Frage hätte, was angesichts der tatsächlichen Geschichte und ihrer Konsequenzen den heute lebenden Mitgliedern indigener Völker im Sinne korrektiver Gerechtigkeit geschuldet sei. 4. Pflichten aufgrund historischen Unrechts und historischer Schädigung 4.1

Indirekte Pflichten von Mitgliedern andauernder Gesellschaften

Wie Patton sieht auch Janna Thompson einen Grund für die korrektiven Ansprüche australischer Abrogines in historischen Verletzungen der Pflichten relationaler Gerechtigkeit: Deren Ansprüche auf Reparationsleistungen beruhten nicht allein auf der Verletzung von Besitztiteln, sondern auf der unrechtmäßigen Verletzung anderer Rechte, insbesondere der Verletzung der politischen Unabhängigkeit ihrer Gruppe und der Zerstörung des kulturellen Lebens der Gruppe - Unrecht, das als Ausdruck mangelnden Respekts für den Status der Gruppe und ihre Lebensform zu werten sei. Im vorliegenden Beitrag geht es Thompson um die Analyse historischer Pflichten, nämlich um Beantwortung der Frage: Wem gegenüber haben indirekte Opfer historischen Unrechts welche Ansprüche und warum? Unter liberalen Theoretikern besteht Einigkeit, dass Menschen keine Verantwortung tragen können für Unrechtshandlungen, die (lange) bevor sie geboren wurden von anderen verübt worden sind. Jedoch argumentiert Thompson, wie auch Rahul Kumar und David Silver sowie David Lyons, dass Menschen als Mitglieder andauernder politischer Gesellschaften, gewöhnlich also als Bürger und Bürgerinnen, Verantwortung dafür tragen, dass ihre Gesellschaft die Pflichten erfüllt, die ihr daraus erwachsen, dass früher lebende Mitglieder im Namen der Gesellschaft Unrecht verübt haben. In der Analyse von Thompson gehören historische Verpflichtungen zu den vergangenheitsorientierten Verpflichtungen wie die Pflicht, Versprechen zu halten oder Verträge zu erfüllen. Ihr Verpflichtungsgrund sind vergangene Handlungen und Ereignisse, nicht allein die Konsequenzen vergangener Handlungen für gegenwärtige Bedingungen. Unter einer historischen Verpflichtung versteht sie eine moralische Verantwortung von Personen als Mitgliedern einer intergenerationellen Assoziation oder Gemeinschaft, z.B. als Bürger oder als Besitzer oder Manager von Korporationen aufgrund der Verpflichtungen oder Handlungen ihrer Vorfahren bzw. -ganger. Diese Verpflichtungen sind historische, wenn die Nachfahren oder Nachfolger derer, die die Verpflichtungen eingegangen sind, dafür verantwortlich sind, die Verpflichtungen zu erfüllen. Nationen, Stämme und ähnliche politische Entitäten sind intergenerationell: Sie verfolgen generationenübergreifende Projekte. Insbesondere gehen solche Entitäten auch langfristige vertragliche Verpflichtungen ein. Könnten diese Entitäten analog zu Individuen verstanden werden, so wäre die Zuschreibung von Verantwortung, etwa die einmal eingegangenen vertraglichen Verpflichtungen auch zu erfüllen oder aufgrund früherer Unrechtshandlungen heute Reparationsleistungen zu erbringen, unproblematisch. Aber es sind die jeweiligen Mitglieder der Gruppe, etwa die Bürger und Bürgerinnen, die die Verpflichtungen zu erfüllen haben, und, insbesondere bei Reparationsleistungen, die Lasten und Kosten zu tragen haben. Dagegen aber kann mindestens eingewandt werden, erstens, dass eine solche Zuschreibung unfair ist, und, zweitens, dass Menschen nur Ureinwohner in Australien, Neuseeland und den USA siehe R. Bartlett, "Native Title", 282-310.

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verantwortlich sein können für Handlungen, die sie beeinflussen können. Zwar kann für das Selbstverständnis von Menschen konstitutiv sein, dass sie Mitglieder intergenerationeller Gruppen sind, und sie werden dann auch bereit sein, die Lasten und Kosten solcher Mitgliedschaft zu tragen. Aber das gilt, so Thompson, bei weitem nicht für alle Mitglieder der uns interessierenden großen und unpersönlichen Gesellschaften. Aus der Beteiligung an Gruppenaktivitäten kann nicht einfach auf ein solches Selbstverständnis geschlossen werden. Auch der Umstand, zu den Begünstigten der Unrechtshandlungen früher lebender Personen zu zählen, begründet per se keine historischen Pflichten, sondern bestenfalls die Pflicht, den Gewinn mit denen, die aufgrund der Handlungen benachteiligt sind, fair zu teilen.26 Thompson schlägt hingegen vor, den Grund für historische Verpflichtungen von Menschen als Mitgliedern intergenerationeller (politischer) Gruppen darin zu erkennen, dass der Anspruch, später lebende Mitglieder der Gruppe durch heutige Entscheidungen binden zu dürfen, nur dann gerechtfertigt ist, wenn die gegenwärtigen Mitglieder ihrerseits akzeptieren, für die Erfüllung der von früheren Mitgliedern der Gruppe eingegangenen Verpflichtungen verantwortlich zu sein. Sind wir für die Einhaltung von Verpflichtungen verantwortlich, dann sind wir auch dafür verantwortlich, im Falle der Verletzung der Verpflichtungen denen, denen Unrecht getan wurde, Reparation und Restitution zu leisten. Unser Anspruch, später lebende Mitglieder unserer Gesellschaft binden zu können, setzt also voraus, dass wir akzeptieren, an entsprechende Entscheidungen früherer Mitglieder gebunden zu sein, und für Pflichtverletzungen durch frühere Mitglieder einzustehen. Eine weitere Frage ist, was als Pflichtverletzung zählt. Folgen wir Thompson, so sind dies wenigstens die Verletzung von Pflichten, deren Erfüllung Voraussetzung dafür ist, mit anderen intergenerationellen Entitäten Verpflichtungen eingehen zu dürfen. Zu diesen zählt aber insbesondere die Pflicht zum Respekt vor anderen solchen Gruppen, die ihrerseits einen Anspruch auf solchen Respekt haben. Die historischen Ungerechtigkeiten, um die es im Verhältnis der Kolonisatoren zu den indigenen Bevölkerungen etwa Australiens geht, nämlich die Verletzung der politischen Unabhängigkeit der Aborigines und die Zerstörung ihres kulturellen Lebens, sind aber klare Verletzungen dieser Pflicht. Bürger Australiens stehen unter der Pflicht, Reparation zu leisten für das im genannten Sinne respektlose Verhalten27 der früheren Mitglieder ihrer Gruppe gegenüber den Aborigines, ebenso wie die zukünftigen Mitglieder Australiens unter der Pflicht stehen, gemäß der sie bindenden Entscheidungen der heutigen Bürger zu handeln und für deren Pflichtverletzungen gegebenenfalls gerade zu stehen. Dies ist Voraussetzung dafür, dass Australien als respektwürdig gelten und den Anspruch erheben kann, mit anderen intergenerationell andauernden Gruppen Verpflichtungen einzugehen, die auch die zukünftigen Mitglieder der jeweiligen Gruppen binden. Auch Kumar und Silver schreiben den USA als intergenerationell andauernder Entität korporative Verantwortung für das in ihrem Namen verübte Unrecht zu und machen die derzeitigen Bürger dafür haftbar, dass der Staat seiner historischen Verantwortung

Einleitung

entspricht. In der Sache geht es ihnen um die Pflicht zu Restitutionsleistungen gegenüber den heutigen Mitgliedern der African-American Community aufgrund der Versklavung ihrer Vorfahren. Der heutige Staat USA stehe in Kontinuität mit den USA, die als legitim anerkannt über Autorität verfügten und als solcher Staat die Behandlung der früheren Mitglieder der African-American Community als Menschen legitimiert haben, die des Respekts als Personen im Vollsinne nicht würdig und deshalb als Sklaven zu behandeln sind. Folgen wir der Studie David Lyons, so haben die Handlungen und Unterlassungen offizieller U.S.-amerikanischer politischer Entscheidungsträger (von Präsidenten, Mitgliedern einzel- und bundesstaatlicher Legislaturen, Richtern und Exekuüvbeamten) die Institution nicht nur legitimiert, sondern zur Schaffung und Erhaltung der Chattel-Sklaverei28 beigetragen, auch nach der Abschaffung der Sklaverei die African Americans von politischen Entscheidungsprozessen systematisch ausgeschlossen und dafür gesorgt, dass viele von ihnen zu den in der heutigen U.S.-amerikanischen Gesellschaft sozioökonomisch und kulturell Schlechtestgestellten zählen. Lyons unterscheidet vier Perioden, in denen nach seiner Analyse jeweils Entscheidungen zur Schaffung und Erhaltung einer rassistisch hierarchisierten US-amerikanischen Gesellschaft getroffen wurden, und das, obgleich die politischen Entscheidungsträger durchaus die Alternativen kannten und sich jeweils gegen die Etablierung der Sklaverei, deren Erhalt, den politischen und ökonomischen Ausschluss der African-Americans und die brutale Unterdrückung ihrer Bemühungen um Besserstellung hätten entscheiden können. Auch Kumar und Silver betonen, dass ebendieser Staat USA sich bis heute nicht in angemessener Weise auf die Verantwortung für dieses staatliche Unrecht der Sklaverei bezogen hat. Deshalb sei es plausibel, von den USA als rechtens zu fordern, das Verständnis zurückzuweisen, welches sich in der Sklaverei und Behandlung von Menschen als nicht gleichberechtigten Personen aufgrund ihrer Mitgliedschaft in der AfricanAmerican Community ausdrückt. Die autoritative Legitimation dieses Verständnisses und der Institution Sklaverei durch den Staat habe eben dieser Staat die Pflicht, autoritativ zurückzuweisen. Was in Erfüllung dieser Pflicht als angemessen und hinreichend gelten könne, sei in starkem Maße von kulturellen Konventionen abhängig. Erforderlich sei wenigstens eine offizielle Anerkennung der Sklaverei als staatlich legitimiertes Unrecht. Die Bürger der USA seien dafür haftbar zu machen, dass ihr Staat dieser Pflicht entspricht. Ähnlich wie Kumar und Silver (und im Sinne der Analyse historischer Verpflichtungen, die Thompson vorgelegt hat) schreibt Lyons Verantwortung für Kompensation und Reparation für das Unrecht und den bleibenden Schaden, den gegenwärtig lebende African-Americans erleiden, den USA als fortdauernder staatlicher Einrichtung zu. Lyons betont aber den bleibenden Schaden, nicht das von Kumar und Silver identifizierte Unrecht an heutigen Mitgliedern der African-American Community aufgrund des an früheren Mitgliedern dieser Gruppe verübten Unrechts. Es gelte für eine Politik einzutreten, die die bleibenden Konsequenzen wenigstens für die Kinder der Nachfahren der US28

26 27

Hierzu das Kapitel von A. Gosseries, das ich in Abschnitt 4.3 vorstelle. Für eine eingehende Interpretation der Missachtung einer Person durch Verletzung und Aberkennung ihrer grundlegenden Rechte siehe A. Honneth, Kampf um Anerkennung, Kap. 6 "Persönliche Identität und Missachtung. Vergewaltigung, Entrechtung, Entwürdigung", insbesondere 214-6. Opfer historischen Unrechts sind häufig Opfer der Missachtung in den drei von Honneth unterschiedenen Schichten gewesen: praktische Misshandlung, Entrechtung und Entwürdigung. Siehe auch A. Honneth, "Anerkennung und moralische Verpflichtung", 25-41, 33f; ders, "A Society Without Humiliation?, 306-24, Abschnitte V und VI.

25

"Chattel" bedeutet bewegliches Eigentum. Von Chattel-Sklaverei spricht man, wenn eine Person im umfassenden Sinne als Eigentum einer anderen Person gilt. Die Eigentümerschaft begründet mehrere Herrschafts-, Nutzungs- und Verfügungsrechte, so zum Beispiel das Recht auf Übertragung des (faktischen) Besitzes, das Recht auf Veräußerung des Eigentums oder das Recht, jede Einwirkung Dritter auf das Eigentum oder auf die Verfügung über das Eigentum abzuwehren. Zu den Rechtsbestimmungen, die Chattel-Sklaverei in den USA begründeten, siehe den Beitrag von David Lyons in diesem Bd. Die weite Definition von Sklaverei, wie sie sich im Übereinkommen des Völkerbundes über Sklaverei (1926) findet, schließt die meisten Formen von Zwangsarbeit ein. Siehe "Zwangsarbeit und Sklaverei im 21. Jahrhundert", herausgegeben von Anti-Slavery International (London) et al.

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amerikanischen Sklaven abschwäche. Nicht zuletzt auch wegen des Kontingenzproblems - also der Tatsache, dass die Versklavung und die Unrechtsmaßnahmen, die zur "rassischen Hierarchisierung"29 der US-amerikanischen Gesellschaft beigetragen haben, zu den notwendigen Bedingungen der Existenz vieler heute lebender African-Americans zählen - schlägt Lyons vor, eine Politik zur Besserstellung der African-Americans auf einen zukunftsorientierten schwachen Egalitarismus zu gründen. Dieser stützt sich auf die Überzeugung, dass eine Regierung nur dann als legitim gelten kann, wenn sie ihrer vorrangigen Pflicht entspricht, nämlich sicherzustellen, dass die sozialen Einrichtungen so beschaffen sind, dass jedes Kind einen fairen Anteil an Lebensaussichten hat. 4.2

Geteilte Scham oder kollektive Schuld?

George Fletcher weist in seinem Beitrag darauf hin, dass geteilte Scham häufig zur Begründung von Pflichten aufgrund historischen Unrechts angeführt werde. Fletcher weist diese Auffassung zurück: Im Kern sei Scham das Gefühl, das sich einstellt, wenn die Geschlechts- und die Verdauungsfunktionen dem Blick anderer ausgesetzt sind. Die angemessene Reaktion sei, sich zu bedecken. Auch wenn das Schamgefühl die Einhaltung moralischer Regeln unterstützen könne, sei es im Unterschied zu Verantwortung und Schuld nicht-rational. Das Schamgefühl als solches kann nicht handlungsbegründend sein. Deshalb sei es überraschend, wenn das Gefühl geteilter Scham - etwa der Deutschen angesichts der Verbrechen, die früher lebende Deutsche im Namen Deutschlands verübt haben - zur Begründung von Pflichten angeführt wird, etwa der Pflicht heute lebender Deutscher, den Opfern des Naziregimes Kompensation zu leisten.30 Die hier von Fletcher kritisierte Auffassung wird im vorliegenden Band von keinem der Autoren vertreten. Thompson, Kumar und Silver und Lyons vertreten ja vielmehr die Position, dass die Kompensationspflichten aufgrund historischen Unrechts andauernden staatlichen Einrichtungen zuzuschreiben sind und dass die Mitglieder solcher Einrichtungen unter der (Bürger-) Pflicht stehen, dafür zu sorgen, dass die jeweilige Einrichtung ihren korporativen Pflichten entspricht. Die gegenwärtigen Mitglieder gel29 30

D. Lyons in diesem Band, 271. Eine solche Reaktion sei, so Fletcher, auch dem Gefühl der Scham nicht angemessen. Denn, ob die gegenwärtig lebenden Deutschen die Pflicht erfüllen oder nicht, könne keinen Unterschied machen für ihr Gefühl der Scham, richtig verstanden. Das scheint fragwürdig: Auch wenn, wie Fletcher betont, Schamgefühle als solche nicht Handlungspflichten begründen können, so kann das Gefühl der Scham (und die Stärke dieses Gefühls) doch mit der Verletzung bzw. der Erfüllung oder Nichterfüllung von Pflichten angemessen korrelieren. Scham wegen Mitgliedschaft in einer Gruppe ist besonders plausibel, wenn Menschen ihre soziale Identität als abhängig von nicht selbst gewählter Gruppenzugehörigkeit verstehen, und diese Identität gemäß ihrem Selbstverständnis und der Wahrnehmung anderer dadurch beschädigt wird, dass Gruppenmitglieder (und die Gruppe als solche) ihren Pflichten nicht nachkommen. Diese Beobachtung liegt der Interpretation der Verantwortung dafür, wer man ist (existentielle Verantwortung), im Gegensatz zu der Verantwortung für die eigenen Handlungen zugrunde. Siehe B. Williams, Shame and Necessity, 89-95. Larry May hat die Verantwortung für die soziale Identität der eigenen Person unter dem Titel "Social Existentialism" ausgearbeitet. Siehe L. May, Sharing Responsibility. Zur Interpretation der moralischen Belastung der Gruppenidentität aufgrund früheren, im Namen der Gruppe verübten Unrechts und den damit einhergehenden Schamgefühlen derzeitiger Gruppenmitglieder, siehe ebd., 146-62. Die Interpretation versteht sich als eine Rekonstruktion und Weiterentwicklung von Karl Jaspers Begriff der "metaphysischen Schuld". Siehe K. Jaspers, Die Schuldfrage, 65-149, 108-10. Siehe auch Jean-Claude Wolfs Interpretation "metaphysischer Schuld" als "stellvertretende Haftung" und die Angemessenheit von Schamgefühlen, wenn letztere akzeptiert wird, in Utüitarismus, Pragmatismus und kollektive Verantwortung, 155-77.

Einleitung

27

ten als schuldlos und verantwortlich nur insofern sie Mitglieder des Staates sind. ' Auch Fletcher hält die gegenwärtig lebenden Mitglieder für im modernen Sinne schuldlos, vertritt aber die Auffassung, dass kollektive Schuld Maßnahmen der Kompensation für von früheren Mitgliedern im Namen der Gruppe verübten Unrechts begründen kann, wenn wir auf Elemente der alttestamentarischen Bedeutung von Schuld zurückgreifen. Das alttestamentarische Verständnis von Schuld sei ein objektivistisches: Schuld lässt sich an objektiven Merkmalen der Beschmutzung der Gesellschaft, in der das Verbrechen begangen wurde, festmachen. Die angemessene Reaktion auf solche kollektive Schuld sind Opfer für die Götter. Das biblische Verständnis kennt weder die subjektive Seite von Schuld, also Schuldgefühle, noch Grade der Schuld. Dies sind aber wichtige Elemente des modernen Verständnisses. Personen fühlen sich schuldig. Einige Personen tragen größere Schuld als andere. Fletcher meint, dass nach modernem Verständnis der Grad der Schuld einer Person vom Ausmaß des schuldhaft verursachten Schadens abhängig sei und die Zuschreibung von Schuld von Kenntnis der Handlung und ihrer Risiken. Nicht das Erbringen von Opfem sondern Bestrafung des Schuldigen gemäß dem Urteil eines zuständigen Gerichts gilt als angemessene Reaktion. Nicht mehr kollektive Schuld sondern individuelle Schuld ist der Standardfall des modernen Verständnisses. Anders als Scham könne Schuld handlungsbegründend sein und Schuld könne auch Kompensationsmaßnahmen begründen. Mit Blick auf historisches Unrecht müsste Schuld hier allerdings im Sinne des biblischen Verständnisses objektivistisch, also als kollektive Beschmutzung verstanden werden. Kompensationsmaßnahmen dienten dann der symbolischen Reinigung des Kollektivs.32 Fletchers Interpretation kollektiver Schuld könnte in vielen Fällen zur Feststellung solcher Schuld führen, in denen wir mit der unter anderem von Thompson vertretenen Interpretation historischer Pflichten Gesellschaften korporative Verantwortung und ihren Mitgliedern indirekte Pflichten aufgrund der Unrechtshandlungen früherer Mitglieder der Gesellschaft zuschreiben. Allerdings sind die Fragen, wann solche kollektive Schuld vorliegt und wem gegenüber dann Pflichten bestehen, weitgehend unbeantwortet. Vermutlich wird man nicht in allen Fällen von kollektiver Schuld im Sinne Fletchers sprechen wollen, in denen wir im Sinne Thompsons Gesellschaften korporative Verantwortung wegen des Handelns früherer Mitglieder zuschreiben. 4.3

Das Verbot des Trittbrettfahrens

So ist unklar, ob wir mit Fletcher im Falle der von Axel Gosseries untersuchten schädigenden Konsequenzen der CO2-Emissionen früher lebender Mitglieder andauernder 31

32

Elemente einer solchen Interpretation finden sich auch in K. Jaspers, Die Schuldfrage; T.W. Adorno, "Was bedeutet: Aufarbeitung der Vergangenheit?", 555-72; J. Habermas, "Über den moralischen Notstand in der Bundesrepublik"; ders., "Zwei Reden"; ders., "Aus der Geschichte lernen?", "Doppelte Vergangenheit", "Das Bedürfnis nach deutschen Kontinuitäten", "Aus welcher Geschichte lernen?"; M., Brumlik und H. Brunkhorst, "Kontingente Identität und historische Haftung", 26-40; M. Löw-Beer, "Die Verpflichtungen der unschuldigen Nachgeborenen", 61-9. Fletcher versteht kollektive Schuld in einem nicht-distributiven Sinne: Schreiben wir dem Kollektiv Schuld zu, bedeutet dies nicht, dass die einzelnen Mitglieder schuldig sind. Zur Unterscheidung von distributiven und nicht-distributiven Interpretationen kollektiver Verantwortung siehe F.W. Rothenpieler, Der Gedanke einer Kollektivschuld in juristischer Sicht; R.S. Pfeiffer, "The Meaning and Justification of Collective Responsibility", 62-83, und J. Feinberg, "Collective Responsibility", 222-51; J. Feinberg, "The Expressive Function of Punishment", 95-118.

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Gesellschaften für Nicht-Mitglieder, die heute andernorts leben, von kollektiver Schuld sprechen sollten. Von einer Beschmutzung der Gesellschaft durch historisches Verbrechen kann hier nicht die Rede sein. Die früher lebenden Mitglieder haben selbst nicht schuldhaft gehandelt, weil sie um die schädliche Wirkung für später lebende Menschen nicht wissen konnten. Können ihre Nachfahren oder die heute lebenden Mitglieder der andauernden Gesellschaft, also gewöhnlich Bürger eines Staates, unter historischen Pflichten zu Kompensationsleistungen gegenüber geschädigten Nicht-Mitgliedern stehen aufgrund der Handlungen früher lebender Mitglieder ihrer Gesellschaft, wenn sie für deren Handlungen nicht nur nicht verantwortlich sein können, weil sie deren Handlungen nicht haben beeinflussen können, sondern, anders als im Fall der Sklaverei in den USA, die für diese Handlungen verantwortlichen Akteure nicht haben wissen können, dass sie (später lebende) Menschen schädigen (würden)? Im Falle der Emission von Treibhausgasen könnten solche Kompensationsleistungen erbracht werden, indem die zukünftige Emission dieser Gase für Staaten unter Berücksichtigung ihrer früheren Emissionen reduziert wird, nämlich stärker dann, wenn ein Staat für überdurchschnittlich hohe frühere Emissionen verantwortlich ist. Dies ist seit vielen Jahren eine politische Forderung. Gosseries akzeptiert, dass aufgrund ihrer Unwissenheit die früher lebenden Verursacher des Schadens diesen nicht moralisch zu verantworten haben, verteidigt aber die Auffassung, dass gegenwärtig lebende Menschen, die um die schädigende Wirkung des Handelns ihrer Vorfahren wissen sollten und Vorteile aufgrund dieses Handelns genießen, den Geschädigten Kompensationsleistungen schulden können, nämlich aufgrund des Verbots des Trittbrettfahrens. Für den Zweck der Diskussion reduziert Gosseries die Komplexität der Situation, wie sie aufgrund früherer Emissionen heute vorliegt, durch stark vereinfachende Annahmen. Er beschränkt sich auf zwei Staaten (die er USA und Bangladesh nennt) und je zwei Generationen, die gegenwärtig lebende und eine frühere. Da diese Generationen nicht überlappen, konnten die gegenwärtig lebenden Menschen das Verhalten der früheren Generation nicht beeinflussen. Ferner beschränkt er sich auf Kohlendioxid-Emissionen, nimmt an, dass die gegenwärtig lebenden Generationen beider Staaten kein Kohlendioxid (CO2) emittieren und dass nur die früher lebende Generation der USA CO2 emittiert hat. Des Weiteren nimmt er an, die früheren CO2-Emissionen der USA schädigen einerseits die gegenwärtig lebenden Mitglieder von Bangladesh direkt (also nicht indirekt aufgrund der Schädigung ihrer Vorfahren) und seien insgesamt für das Wohlbefinden der in Bangladesh lebenden Menschen abträglich. Er nimmt andererseits an, dass diese CO2-Emissionen ihrer Vorfahren die gegenwärtig in den USA lebenden Menschen insgesamt indirekt begünstigen: Sie erlauben den heute lebenden US-Amerikanern ein höheres Wohlfahrtsniveau zu realisieren. Die moralische Verantwortung der gegenwärtig lebenden US-Amerikaner für Kompensationsleistungen aufgrund des schädigenden Handelns früher lebender US-Amerikaner sucht Gosseries mit einer spezifischen moralischen Interpretation des Trittbrettfahrens zu begründen. Eine Person gilt als Trittbrettfahrer, wenn das Handeln anderer sie begünstigt und die Kosten der Handlung die handelnde Person oder noch andere Personen tragen. Transgenerationelles Trittbrettfahren liegt dann vor, wenn die gegenwärtig lebende Generation des einen Staates (USA) aufgrund der Handlungen der früheren Generation desselben Staates Trittbrettfahrer ist zu Lasten der gegenwärtigen Generation des anderen Staates (Bangladesh). Trittbrettfahrer sind die gegenwärtig lebenden U.S.-Amerikaner, obgleich sie für die schädigenden Handlungen nicht verantwortlich

Einleitung

29

sein können, die sie, da sie zum Zeitpunkt ihrer Ausführung noch nicht einmal geboren waren, nicht haben beeinflussen können. Das Trittbrettfahren einer Person sei solange moralisch unakzeptabel, als die Person nicht wenigstens im Umfange des Werts ihrer durch das Handeln anderer entstandenen Begünstigung denen Kompensation leistet, die durch eben dieses Handeln geschädigt sind. Das Verbot des Trittbrettfahrens, wie Gosseries es auffasst, ist weniger anspruchsvoll als das Gleichheitsgebot bzw. eine strikt egalitäre Interpretation des Verbots des Trittbrettfahrens. Das von Gosseries verteidigte Verständnis des Verbots erlaubt eine Ungleichverteilung der Begünstigungen und Belastungen aufgrund z.B. der CCh-Emissionen früherer Generationen: Die Netto-Begünstigten sind verpflichtet, Kompensationsleistungen in Höhe des Werts der ihnen entstehenden Begünstigung zu erbringen; die Erfüllung dieser Pflicht garantiert aber nicht, dass der Schaden vollständig ausgeglichen wird. Das Gleichheitsgebot hingegen verlangt, dass die Gesellschaft alle unverschuldeten Schlechterstellungen ausgleicht, gleich ob sie sich Ereignissen, dem Handeln anderer oder dem unwillentlichen Handeln der negativ Betroffenen verdanken. Dieses Gebot verlangt die Gleich Verteilung der Begünstigungen und Belastungen aufgrund etwa der CCh-Emissionen früherer Generationen. Weil das Gleichheitsgebot andere und häufig anspruchsvollere Verpflichtungen mit sich bringt, kann das Verbot des Trittbrettfahrens auch der vertreten, der das Gleichheitsgebot ablehnt. Das Verbot des Trittbrettfahrens ist auch in einem zweiten Sinne weniger anspruchsvoll als das Glcichheitsgebot. Ersteres verlangt von den Begünstigten Kompensationsleistungen nur gemäß ihrer relativen Begünstigung. Wenn andere Begünstigte ihren Kompensationspflichten nicht genügen, dann ändert dies den Umfang der zu entrichtenden Kompensationsleistungen nicht. Das Gleichheitsgebot andererseits verlangt eine Gleichverteilung der Begünstigungen und Belastungen durch Redistribution. Wenn andere ihren Verpflichtungen nicht genügen oder nicht genügt haben, kann dies den Umfang der Verpflichtung nach dem Gleichheitsgebot verstärken. Angenommen die von Gosseries vorgeschlagene Interpretation des Verbots des Trittbrettfahrens ist plausibel und seine Analyse der Verpflichtungen, die sich wegen der Schädigungen durch globale Erwärmung aufgrund der CO2-Emissionen früherer Generationen ergeben, ist überzeugend, ist das Verbot des Trittbrettfahrens auch für die Analyse und Bewertung anderer Fälle historischer Schädigung bzw. historischen Unrechts relevant? Der von Gosseries unterstellte Fall hat mindestens zwei besondere Merkmale: Erstens konnten frühere Generationen nicht wissen, dass die CC>2-Emissionen schädlich sind (und dass sie durch diese Emissionen später lebenden Generationen Unrecht tun). Zweitens werden erst spätere Generationen geschädigt. Diese, im Beispiel Gosseries die gegenwärtige Bevölkerung von Bangladesh, sind direkt durch die Emissionen der früheren US-amerikanischen Generation geschädigt. Beide Merkmale treffen etwa auf den Fall der Sklaverei in den USA nicht zu. Dass Menschen dadurch, dass sie in die Sklaverei gezwungen werden, großer Schaden zugefügt und ihnen dadurch Unrecht getan wird, haben die Sklavenhalter und die Akteure, die die Institution der Sklaverei geschaffen und legitimiert haben, wissen können oder sollen. Dann aber können sich andere Verpflichtungen ihrer Nachfahren ergeben, etwa die im Beitrag von Kumar und Silver diskutierten. Dass Menschen in der Vergangenheit Unrecht erlitten haben, ist Voraussetzung auch der von Waldron vertretenen Aufhebungsthese sowie seiner und Shers Überlegungen zur Relevanz hypothetischer Geschichtsverläufe, der Argumente von Gans, Marmor, F0llesdal und Patton zugunsten der Restitution der Kontrolle über identitätsstiftendes Territorium, der Überlegungen von Pogge zum Makel andauernder Institutionen aufgrund ihrer illegitimen Entstehungs-

30

Lukas H. Meyer

bedingungen und der Idee überlebender Pflichten mit Blick auf heute verstorbene Opfer früheren Unrechts. Inwiefern der Umstand, dass im Falle der CO2-Emissionen heute lebende Menschen direkte Opfer sind, normativ signifikant ist, bedarf weiterer Überlegung. Die gegenwärtig lebenden Nachfahren von Sklaven sind indirekte Opfer: Das Leben ihrer Vorfahren, die Sklaven waren, ist durch die Sklaverei geprägt. Es ist sehr wahrscheinlich, dass die Versklavung ihrer Vorfahren notwendige Bedingung der Existenz und Identität ihrer Nachfahren ist. Die Beurteilung ihrer Ansprüche erfordert demnach eine Interpretation der Relevanz des Nicht-Identitäts-Problems (siehe Abschnitt 1). Im Falle der CO2Emissionen früherer Generationen, die sich erst heute negativ auf die Lebensbedingungen von Menschen andernorts auswirken, könne man nicht mit gleicher Plausibilität annehmen, so Gosseries, dass die früheren Emissionen notwendige Bedingung der Existenz und Identität der heute Betroffenen sind. Das scheint zweifelhaft: Auch wenn die Maßnahmen erst heute negative Konsequenzen haben, so hatten sie schon früher andere Konsequenzen, die ihrerseits zu den Existenz- und Identitätsbedingungen der heute lebenden geschädigten Menschen zählen und insbesondere dann, wenn wir häufige Interaktionen zwischen Schädigern und den Vorfahren der Geschädigten anneh-

Einleitung

mühungen eines spanischen Richters um Auslieferung des früheren chilenischen Präsidenten Pinochet wegen Menschenrechtsverbrechen an Spanien, die straf- und zivilrechtliche Amnestie, die in Südafrika für politische Verbrechen des Apartheidregimes auf Empfehlung der Wahrheits- und Versöhnungskommission gewährt werden konnte, die strafrechtliche Verfolgung der Nazi-Verbrechen in den westlichen Besatzungszonen der späteren BRD sowie die Bemühungen um strafrechtliche Aufarbeitung der DDRRegimeverbrechen im vereinten Deutschland. Am Beispiel Pinochets erörtern Malamud-Goti und Tomuschat die Vor- und Nachteile einer Strafverfolgung von Regimeverbrechen durch andere Einrichtungen als die des Nachfolgeregimes. Crocker, Elster, Heyd, Malamud-Goti und auch Offe und Poppe diskutieren die Legitimität und die Erfolgsaussichten strafrechtlicher Verfolgung von Regimeverbrechen angesichts anderer möglicher sozialer Sanktionen und mit staatlicher Strafe konkurrierender Werte, insbesondere der Restitution der Opfer durch autoritative Feststellung der Wahrheit über das ihnen zugefügte Unrecht durch die Arbeit von Wahrheitskommissionen und die Förderung der Versöhnung zwischen Opfern und Tätern auf der Grundlage einer bedingten Amnestie. 5./

5.

Strafrecht und Strafverfahren als Modus der Transition to Democracy

Das Nicht-Identitäts-Problem stellt sich jedenfalls dann nicht, wenn Opfer von Unrechtshandlungen noch leben. Es ist auch irrelevant für die Frage, ob die Täter heute strafrechtlich verfolgt werden sollen. Ob Verbrechen, die unter einem vorrechtsstaatlichen Regime verübt wurden, heute während einer Transition zu einer rechtsstaatlichen und demokratischen Ordnung strafrechtlich verfolgt werden sollen, und falls ja, mit welcher Begründung und mit welchen Zielen, ist allerdings in hohem Maße umstritten. So sind besondere wie generelle Abschreckungseffekte staatlicher Strafe in hohem Maße zweifelhaft, wenn die Straftaten im Namen und Auftrag staatlicher Einrichtungen unter den Bedingungen einer Diktatur oder von Mitgliedern paramilitärischer Gruppen unter bürgerkriegsähnlichen Bedingungen verübt wurden.33 Umstritten ist auch, welche Institutionen zuständig sein sollen: die Staatsanwaltschaften und Strafgerichte des Nachfolgeregimes, internationale Institutionen - also eigens eingerichtete so genannte ad hoc Tribunale oder der neu geschaffene internationale Strafgerichtshof - oder Institutionen dritter Staaten, die universelle Jurisdiktion beanspruchen oder deshalb für zuständig gelten können, weil eigene Bürger zu den Opfern zählen oder Verbrechen auf ihrem Territorium verübt wurden. Ruti Teitel entwickelt mit Blick auf diese Fragen eine soziologische Interpretation der internationalen Praxis. Jaime Malamud-Goti, Christian Tomuschat, David Crocker, David Heyd, Claus Offe und Ulrike Poppe sowie Jon Elster diskutieren die genannten Fragen mit Blick auf die jeweils von ihnen untersuchten Fälle: Exil, Strafverfolgung und Amnestie im antiken Athen bei der Ablösung von diktatorischen Regimen, die Be33

Für skeptische Stimmen siehe J. Malamud-Goti, Game Without End, 10f; A. Przeworski, Democracy and the Market, 76; A. Heller, "The Limits to Natural Law and the Paradox of Evil", 149-173, 248f, 161; C.S. Nino, Radical Evil on Trial, 128; M.W. Reisman, "Legal Responses to Genocide and Other Massive Violations of Human Rights", 75-80, 77; M. Minow, Between Vengeance and Forgiveness, 145f; M. Ignatieff, "Human Rights" (der in langfristiger Perspektive auf die sich wechselseitig stärkende Abschreckungswirkung von militärischer humanitärer Intervention und (nationaler wie internationaler) Strafverfolgung systemischer Menschenrechtsverletzungen setzt).

31

Transitorische Strafverfolgung im internationalen Vergleich

Teitel fasst in ihrem Beitrag die Ergebnisse ihres internationalen Vergleichs strafrechtlicher Verfolgung und Bestrafung von Regimeverbrechen während der Transition to Democracy zusammen: Wenn strafrechtliche Verfolgung der Verbrechen des Vorgängerregimes zu den transitorischen Maßnahmen zählen,3 so dienen die Strafverfahren kollektiven Lernprozessen, die den Wechsel zu einem liberalen und rechtsstaatlichen Regime befördern, indem eine diesem Zweck unter den jeweiligen Umständen angemessene Interpretation der Wahrheit über die Verbrechen des Vorgängerregimes autoritativ etabliert wird. Solche Strafverfahren zielen auf die Überwindung von gesellschaftlichen Konflikten. Im Ergebnis werden die in der Regel wenigen Verurteilten typischerweise milde bestraft oder müssen ihre Strafe nicht verbüßen. Dies ist auch Problemen der Zuschreibung individueller Verantwortung für Systemverbrechen und der mit rechtsstaatlichen Prinzipien vereinbaren Anwendung strafrechtlicher Bestimmungen nach einem Regimewechsel geschuldet. Die Bemühungen um Etablierung eines internationalen Strafrechts und des internationalen Strafgerichtshofs zielen, so Teitel, auf die 34

Für normative und politische Analysen der Legitimität von Strafe als Antwort auf unter dem Vorgängerregime begangenes Unrecht siehe z.B. O. Kirchheimer, Political Justice, Kap. 1; H. Arendt, Eichmann in Jerusalem, 54-9, 97, 98f, 100, 140, 168, 178, 183f, 186-201, Kap. VII, VIII passim, 402 (zu Eichmanns Schuld), 374, 377 (zum Rückwirkungsproblem), 59-61, 74, 94, 181, 379-84, 392-5 (zur Jurisdiktion des Israelischen Gerichts); C.S. Nino, Radical Evil on Trial, X, Kap. l ("Punishment as a Response to Human Rights Violations"), Kap. 4 ("The Morality of Punishing and Investigating Human Rights") und Kap. 5 ("Legal Problems of Trials for Human Rights Violations"); J. Malamud-Goti, Game Without End, 20f, 189, 197f; P. de Greiff, 'Trial and Punishment", 93-111; K. Günther, "Der strafrechtliche Schuldbegriff als Gegenstand einer Politik der Erinnerung in der Demokratie", 48-89. Für generelle und vergleichende Interpretationen von Strafe als Antwort auf historisches Unrecht siehe z.B. S. Zimmermann, Strafrechtliche Vergangenheitsaufarbeitung und Verjährung; G. O'Donnell und P.C. Schmitter, Transitions from Authoritarian Rule, 28-32; S. Huntington, The Third Wave, 211-31; A. Przeworski, Democracy and the Market, 23-94; J. Zalaquett, "Confronting Human Rights Violations Committed by Former Governments", Transitional Justice, Bd. I, 3-31; C.S. Nino, Radical Evil on Trial Kap. 3, "Political Problems of Trials for Human Rights Violations".

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Überwindung der aus diesen Problemen erwachsenen Dilemmata. Gäbe es ein wohletabliertes internationales Strafrecht, das unbedingte Mindeststandards für das Verhalten aller Akteure verbindlich setzte, dann wäre seine Anwendung frei von Problemen etwa der nachträglichen rechtlichen Beurteilung der Gesetze eines vorrechtsstaatlichen Regimes.35 5.2

Moralische Dilemmata der Strafverfolgung von Systemverbrechen durch Fremde^

Malamud-Goti untersucht die moralischen Dilemmata einer Strafverfolgung des chilenischen Präsidenten Pinochet in Spanien. Der spanische Richter Baltasar Garzön hatte 1998 die Auslieferung Pinochets wegen dessen Verantwortung für massive Menschenrechtsverbrechen innerhalb und außerhalb Chiles von Großbritannien gefordert, als sich Pinochet in London aufhielt - letztlich ohne Erfolg, weil die britische Regierung Pinochet einem Gerichtsverfahren in Spanien für gesundheitlich nicht gewachsen hielt. Mit Blick auf dieses mögliche Strafgerichtsverfahren in Spanien und Verfahren dieser Art weist Malamud-Goti auf zwei Dilemmata hin. Erstens gebe es eine erhebliche Spannung zwischen der Forderung, Straflösigkeit gerade für im Namen eines Staates verübte Menschenrechtsverbrechen (Staats- oder System verbrechen) zu bekämpfen, und dem rechtsstaatlichen Prinzip einer wenigstens minimalen Gleichbehandlung. Ersterer Forderung sei mit der strafrechtlichen Verfolgung jedes solchen Menschenrechtsverbrechens gedient. Das Prinzip der Gleichbehandlung werde aber verletzt, wenn ein Ausschnitt solcher Staatsverbrechen strafrechtlich verfolgt werde, andere gleichermaßen schlimme Verbrechen dieser Art aber nicht belangt werden und zwar wegen der erheblichen Machtunterschiede in den internationalen Beziehungen. Es sei unvorstellbar, dass etwa ein vietnamesischer Gerichtshof U.S.-amerikanische Staatsbürger für Menschenrechtsverbrechen während des Vietnamkriegs belangen könne oder generell, dass Strafgerichtshöfe der so genannten Dritten Welt Menschenrechtsverbrechen, die im Namen oder Auftrag von Staaten der Ersten Welt verübt wurden, zur Anklage bringen. Derartige Ungleichbehandlung lasse sich auf der Grundlage einer auf Prinzipien beruhenden (retributiven) Strafgerechtigkeit nicht rechtfertigen. Malamud-Goti untersucht aber ein anderes Dilemma. Er vertritt die These, dass mit Blick auf innerstaatliche, im Namen des Staats verübte Menschenrechtsverbrechen Strafgerechtigkeit nur durch Gerichte "von innen" erreicht werden kann, also von Gerichten, die die in Frage stehenden Taten aus der Perspektive der Täter und Opfer verstehen, was am ehesten dadurch gewährleistet werden könne, dass die Richter zur selben politischen Gemeinschaft gehören wie die Opfer und Täter. Diese These hat die Implikationen eines Dilemmas: Denn dem schon genannten Ziel der Bekämpfung von Straflösigkeit steht gegenüber, ein Strafverfolgungssystem vermeiden zu sollen, das der Strafgerechtigkeit nicht dient. Das Ziel retributiver Gerechtigkeit sei aber, der Gesellschaft bei der Etablierung einer auf der gleichen Anerkennung der Rechte aller Mitglieder beruhenden Demokratie dadurch zu dienen, dass es die Opfer mit den Tätern gleichstellt, nämlich durch Bestrafung letzterer. Dieses Ziel könne nur erreicht werden, wenn die Verfahren und die Urteile der Gerichte innerhalb der Gesellschaft, der die Opfer und Täter angehören, als autoritativ anerkannt werden, und dies sei nur möglich, wenn die 35 36

Siehe L.H. Meyer, '"Gesetzen ihrer Ungerechtigkeit wegen die Geltung absprechen'", 319-62, insbesondere 346-61. Siehe auch O. Hoffe, Demokratie im Zeitalter der Globalisierung, 367-74, insbesondere 370.

Einleitung

33

Urteile erstens als angemessen gelten, weil sie der Wahrheit über die Tatsachen entsprechen, und zweitens für unparteilich gehalten werden, weil sie die richtigen Prinzipien, Regeln und Werte reflektieren. Solche Anerkennung beruht aber, so der Autor, und dies gelte gerade für Urteile über Staatsverbrechen, auf der Glaubwürdigkeit des Gerichts, und glaubwürdig sei ein Gericht für eine bestimmte Gruppe und aus anderen als bloß formalen Gründen. Das Verhältnis zwischen dem Gericht und der jeweils relevanten Öffentlichkeit sei ein subjektives, insofern für die Glaubwürdigkeit des Gerichts nicht allein die unparteiliche Feststellung der Verantwortung des Täters sondern die Fähigkeit entscheidend sei, den Konflikt zu beenden, auf dem die Klage fußt. Deshalb könne nicht überraschen, dass, wenn für Staatsverbrechen strafrechtliche Verantwortung zugeschrieben werde, die solcher Zuschreibung zugrunde liegenden Kriterien den Umstand reflektieren, ob die Täter und Richter derselben Gemeinschaft angehören oder nicht, ob es sich um ein Gericht "von innen" oder "von außen" handelt, ob seine Glaubwürdigkeit auf seinem Verhältnis zur Gemeinschaft der Opfer und Täter beruht oder auf dem Verhältnis zu einer dieser Gemeinschaft fremden Öffentlichkeit. Gerichte von außen sind die Gerichte anderer Staaten aber auch internationale Tribunale und Gerichte. Als Illustration seiner These dient dem Autor einerseits die Verurteilung Ernst von Weizsäckers durch ein internationales Militärtribunal 1945 - ein Gericht von außen, für dessen Glaubwürdigkeit nicht die deutsche sondern die Öffentlichkeit der Siegermächte oder die Weltöffentlichkeit entscheidend gewesen sei, daher die, so Malamud-Goti, nicht nachvollziehbar harsche Schuldzuweisung und das harte Urteil - und andererseits die Verurteilung des Brigadegenerals Orlando Ramön Agosti durch ein argentinisches Gericht, dessen Richter den Mitbürger zu einer angesichts der ihm nachgewiesenen Menschenrechtsverbrechen möglicherweise formal rechtfertigbaren, aber jedenfalls äußerst milden Gefängnisstrafe verurteilte. Generell neigen Gerichte von innen, die während einer Transition to Democracy Staatsverbrechen des Vorgängerregimes beurteilen sollen, dazu, den besonderen politischen Umständen der Tatzeit und der Gegenwart ein großes (und möglicherweise zu großes) Gewicht bei der Schuldzuweisung einzuräumen. Hingegen neigen Gerichte von außen, wenn sie solche Fälle verhandeln, dazu, die politische Realität der Gesellschaft, der der Täter angehört, zu simplifizieren, weshalb sie innerhalb dieser Gesellschaft nur bei wenigen Autorität genießen, die politische Spaltung der Gesellschaft fördern und zur Etablierung rechtsstaatlicher Autorität nicht beitragen. Angesichts der heutigen Millionengefolgschaft Pinochets in Chile hätte seine Verurteilung in Spanien durch einen spanischen Richter bestenfalls unvorhersehbare Konsequenzen für die Etablierung einer rechtsstaatlichen Ordnung in Chile. Auch mit Blick auf Pinochet verspricht sich Malamud-Goti durch ein Verfahren im eigenen Land und durch ein Gericht, das die Binnenperspektive einnimmt, deutlich mehr mit Blick auf das Ziel der Schaffung rechtsstaatlicher und demokratischer Verhältnisse während der (in Chile andauernden) Transition to Democracy: Ein solches Gericht könnte erstens zur Aufklärung über das staatsterroristische Regime Pinochets beitragen wie auch zur differenzierten Beurteilung der direkten und indirekten Unterstützung oder Duldung dieses Regimes und seiner Verbrechen durch weite Teile der Bevölkerung. Wenn am Ende nur die höchstrangigen und schlimmsten Verbrecher strafrechtlich belangt würden, könne dies nur unter Verweis auf das Ziel der Schaffung demokratischer Autorität legitimiert werden. Können aber derart auf die Herstellung rechtsstaatlich-demokratischer Verhältnisse zielende Strafverfahren und Urteile als gerecht gelten? Malamud-Goti verweist darauf, dass unter den genannten Bedingungen nur solche Verfahren autoritativ sein können,

34

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die nicht die Spaltung der Gesellschaft vertiefen und die die relevanten Tatsachen und die richtigen Regeln und Prinzipien reflektieren, so dass durch die Bestrafung von Tätern dem Anspruch der zahlreichen Opfer auf Respekt und Wiederherstellung ihrer Würde genügt wird und in diesem Sinne retributive Gerechtigkeit sich gegen Rache und das Schaffen von Sündenböcken durchsetzt. Angesichts der Qualität der Verbrechen, wie sie unter den Nazis aber auch unter anderen Regimen wie dem Pinochets begangen wurden, sei der Versuch der gerechten retributiven Bestrafung im Sinne genauer und vollständiger Gerechtigkeit und eines ebensolchen Ausgleichs zwischen Opfern und Tätern zum Scheitern verurteilt. Dann aber scheine die Verfolgung anderer, moralisch wünschenswerter Ziele, wie die Förderung eines möglichst gerechten politischen Arrangements, durchaus vertretbar.37 Diese Überlegungen zugunsten von Strafgerichten von innen, also Gerichten, die die Binnenperspektive einnehmen, können aber nur relevant sein, so Malamud-Goti, wenn solche Gerichte bestehen und im genannten Sinne erfolgreich sein können. Das könne aber in der Regel nicht für die Menschenrechtsverbrechen gelten, die bei ethnischen Konflikten, wie denen, die zwischen Serben und Muslims im früheren Jugoslawien verübt wurden, oder bei Menschenrechtsverbrechen im Zuge internationaler Kriege. Auch dürfe die Kritik an Gerichten von außen, also internationalen Tribunalen und Gerichten und Gerichten anderer Staaten, die die Außenperspektive einnehmen, nicht als Zurückweisung aller humanitären Zwangsmassnahmen verstanden werden. Die Kritik richte sich gegen eine spezifische Form der strafrechtlichen Schuldzuschreibung für Staatsverbrechen unter den Bedingungen einer Transition to Democracy. Christian Tomuschat, der den Argumenten Malamud-Gotis zugunsten von Strafgerichten, die die Binnenperspektive einnehmen, viel abgewinnen kann, weist in seinem Kommentar darauf hin, dass die von Malamud-Goti beschriebene Alternative zwischen Strafgerichten von innen und Strafgerichten von außen häufig nicht besteht. Das kann eine Reihe von Gründen haben. Generell wird sich, so Tomuschat, die Frage strafrechtlicher Verfolgung durch Gerichte anderer Staaten politisch nicht stellen, wenn das vorrechtsstaatliche Regime, unter dem Menschenrechtsverbrechen begangen wurden, schnell und mit dem Ergebnis abgelöst wird, dass die frühere innerstaatliche Opposition unumstritten die Macht ausübt. Rechtlich stelle sich die Frage nicht, wenn andere Staaten keine Jurisdiktion im Sinne universeller Jurisdiktion beanspruchen können,38 und 37

38

Hierzu siehe ausführlicher Malamud-Gotis zielorientierten "victim-centered retributivism" in J. Malamud-Goti, Game Without End, 9f, 15-17; ders., "Punishment and a Rights-Based Democracy", 3-13. Mit Blick auf schwerste Menschenrechtsverbrechen, Verbrechen gegen die Menschlichkeit und Völkermord beanspruchen Staaten universelle Jurisdiktion, gleich gegen wen und von wem die Verbrechen verübt wurden, die USA zivilrechtlich und andere Länder insbesondere auch strafrechtlich. Zur Praxis in den USA: Am 30.6.1980 entschied der United States Court of Appeals for the Second Circuit, dass die paraguayischen Angehörigen eines Folteropfers Zivilklage gegen den der Tat verdächtigten paraguayischen Polizisten bei einem amerikanischen Gericht erheben können (Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir. 1980)) (siehe The New York Times, 1.7.1980, Section B; S. 3, Spalte 5; siehe auch die Anmerkungen des Vorsitzenden Richters, Irving R. Kaufman, der das Urteil geschrieben hat, in The New York Times, 9.11.1980, Section 6; 44, Spalte 1). Das Gericht stützte sich dabei auf ein lang vergessenes Gesetz aus dem Jahre 1789, dem Alien Tort Claim Act (ATCA). Das ATCA verleiht US Bundesgerichten Jurisdiktion für Zivilklagen von NichtStaatsangehörigen wegen Verletzungen des Völkerrechts oder von internationalen Verträgen, welche die USA geschlossen haben. Seitdem sind viele Fälle auf dieser Grundlage entschieden worden, unter ihnen auch von eben dem Gericht, das den Fall Pena entschieden hatte, der Fall Kadic v. Karadzic, 70 FJd 232 {2d Cir. 1995) (siehe T.R. Posner, "International Decision. Kadic v. Karadzic", 658-64). Für den Kontext dieser Entscheidungen siehe H.H. Koh, "Civil Remedies for

Einleitung

35

auch keine internationale Institution besteht, vor der die politisch Verantwortlichen hätten angeklagt werden können.39 Letztere Gründe hätten für die Ablösung des DDRRegimes gegolten. Im Sinne des Plädoyers Malamud-Gotis habe der Einigungsvertrag, nicht zuletzt um den Eindruck der Siegerjustiz zu vermeiden, für den strafrechtlichen

Uncivil Wrongs", 174-211, 193-5; B. Stephens und M. Ratner, International Human Rights Litigation in U.S. Courts; S.D. Murphy, "Contemporary Practice of the United States Relating to International Law", 132-62, 143-6. - Aber mit Blick auf schwerste Menschenrechtsverbrechen wird von einigen Staaten universelle Jurisdiktion auch strafrechtlich beansprucht: z.B. hat ein dänisches Gericht 1994 Refik Saric, einen bosnischen Flüchtling in Dänemark, wegen Verbrechen in einem Lager in Bosnien-Herzegovina verurteilt. Saric wurde am 22.11.1994 von einem Kopenhagener Gericht zu acht Jahren Gefängnis verurteilt (Ostre Landsrets 3d Div. (1994)) (für eine Zusammenfassung siehe http://www.redress.org). Das belgische Parlament hat im Februar 1999 ein Gesetz verabschiedet, das den belgischen Gerichten universelle Jurisdiktion für Genozid und Verbrechen gegen die Menschlichkeit verleiht. Auf der Grundlage dieses Gesetzes hat ein belgischer Untersuchungsrichter einen internationalen Haftbefehl gegen den gegenwärtigen Außenminister der Demokratischen Republik Kongo, Abdulaye Yerodia Ndombasi, wegen schwerer Verletzungen humanitären Völkerrechts erlassen. Die Demokratische Republik Kongo hat Belgien deshalb vor dem Internationalen Gerichtshof (ICJ) verklagt (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (http://www.icj-cij.org/icjwww/idocket/icobe/icobecr/icobe_icr_toc.html). Ebenfalls auf der Grundlage der Genfer Konventionen haben die Niederlande (Knezevic, HR 11 Nov. 1997), die Schweiz (siehe AR. Ziegler, "International Decision", 78-82), Australien (PolyuUwvich v. Australia (1991) 101 A.LR. 545 (Austl.)) und Deutschland (Entscheidung des BayObLG (1997) im Falle Djajic, Exzerpt des Urteils in Neue Juristische Wochenschrift (1998), 392) NichtStaatsangehörige für an NichtStaatsangehörigen verübte Kriegsverbrechen verklagt. Auch England hat jüngst ein Gesetz verabschiedet, das solche Klagen erleichtern wird (The Geneva Conventions (Amendment) Act, 1995, c. 27). Das bedeutet auch, dass die nationalstaatlichen Entscheidungen über Amnestie für Menschenrechtsverbrechen (siehe unten Abschnitt 5.4), so wichtig sie für die von ihnen Begünstigten auch sind, an Bedeutung eingebüßt haben, weil die amnestierten Personen das Land nicht verlassen können, ohne Gefahr zu laufen, straf- und zivilrechtlich belangt zu werden. Allerdings hat der Internationale Gerichtshof im gennanten belgischen Fall entschieden (Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 14. Februar 2002 (www.icjcij.org/icjwww/idocket/iCOBE/iCOBEframe.htm)), dass ein früherer Außenminister eines Staates nur mit Blick auf die Handlungen, die er "in a private capacity" ausgeübt hat der Strafgerichtsbarkeit eines anderen Staats unterworfen werden darf, ein Außenminister also Immunität genießt bei internationalen Verbrechen, die er als Minister zu verantworten hat - sowohl während als auch nach seiner Amtszeit. Diese Einschätzung des IGH ist scharf als weder vereinbar mit geltendem Gewohnheitsrecht noch der Strafgerechtigkeit dienlich kritisiert worden. Siehe z.B. A. Cassese, "When May Senior State Officials Be Tried for International Crimes?", 853-875. Am 24. Juni 2003 hat die belgische Regierung nicht zuletzt auf Druck der USA beschlossen, dass "the rules of immunity enshrined in international and customary law will be integrated into the law", und die Jurisdiktion der belgischen Gerichte einzuschränken: Sie sollen nur noch dann Jurisdiktion beanspruchen können, wenn, erstens, die der Taten Verdächtigte Belgier sind oder ihren Wohnsitz in Belgien haben oder die Opfer Belgier sind oder ihren Wohnsitz seit mindestens drei Jahren in Belgien haben und, zweitens, wenn die Verdächtigten Bürger eines Lands sind, das die Taten nicht als Straftaten verfolgt und kein faires Gerichtsverfahren garantiert. Siehe http://www.diplomatie.be/en/press/ homedetails. 39

Nach der Ratifizierung durch 60 Staaten ist das Statut des Internationalen Strafgerichtshof (IstGH) (englisch: International Criminal Court (ICC)) am 1. Juli 2002 in Kraft getreten. Der IstGH beansprucht Jurisdiktion über folgende Verbrechen: Genozid, Verbrechen gegen die Menschlichkeit, Kriegsverbrechen und Aggression (Art 5-9). Allerdings ist Aggression im Statut nicht definiert. Art 5(2) sieht vor, dass der IstGH dann Jurisdiktion über Aggression haben wird, wenn eine entsprechende Definition durch Änderung des Statuts gemäß Artikel 121 und 123 ergänzt wurde. Für den Text des Statuts siehe http://www.un.org/icc/romestat.htm und für die Liste der Ratifizierungen siehe http://www.un.org/law/icc/statute/status.htm).

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Umgang mit der DDR-Vergangenheit das Strafrecht der DDR zugrunde gelegt, sofem es nicht generell anerkannten Menschenrechtsstandards widersprach.40 Politisch stelle sich die von Malamud-Goti diskutierte Alternative aber auch für die Fälle nicht, in denen die Machthaber des früheren Regimes jedenfalls informell effektiv die Macht weiterhin ausüben und strafrechtliche Verfolgung im Land unterbinden, kein internationaler Gerichtshof Jurisdiktion beanspruchen kann, und andere Staaten ihre universelle Jurisdiktion nicht ausüben können, weil sie der Straftäter nicht habhaft werden. Die Situation in Guatemala nach dem Bürgerkrieg könne als ein solcher Fall gelten. Strafrechtliche Verfolgung sei nur von innen möglich und erst wenn sich die Machtverhältnisse effektiv geändert hätten. Die Situation im früheren Jugoslawien sei ähnlich. Die politische Situation erlaube nicht, dass die Verantwortlichen der während der 90er Jahre verübten Menschenrechtsverbrechen heute in den Nachfolgestaaten Jugoslawiens strafrechtlich verfolgt werden. Allerdings sei ein internationales Straftribunal eingerichtet worden, an das das frühere Staatsoberhaupt Jugoslawiens, Slobodan Milosevic, ausgeliefert worden sei, nicht aber Radovan Karadzic und Ratko Mladic, die, so Tomuschat, als Kommandeure für das Genozid an den männlichen Einwohnern der Stadt Srebenica verantwortlich seien. Diese befänden sich in relativer Sicherheit im Land, obgleich die entsprechenden Haftbefehle ergangen seien. Mit Blick auf dieses Tribunal plädiert Tomuschat für folgende Einschätzung: Statt sie als Gerichtsverfahren von außen im Sinne des Arguments Malamud-Gotis zu verwerfen, sei ein solches Tribunal der Straflösigkeit der für die Staatsverbrechen Verantwortlichen vorzuziehen, zumal, wie im Fall der internationalen Tribunale für die Naziverbrechen geschehen, die Legitimität der Verfahren und Urteile auch im Land der Täter und Opfer in naher Zukunft Anerkennung finden könnten, und ohne die Arbeit eines solchen Tribunals den Nachfolgestaaten die Aufnahme als gleichberechtigte Staaten in die europäische Staatenwelt verwehrt bliebe. Die Bedenken von Malamud-Goti gegen Gerichte von außen würden von der internationalen Gemeinschaft im Übrigen nicht nur geteilt, sondern seien auch bei der Schaffung des Internationalen Strafgerichtshofs sowie der Einrichtung der Tribunale für Kambodscha und Sierra Leone berücksichtigt worden: Was ersteren angehe nicht zuletzt durch das Subsidiaritätsprinzip, das die Vorzugswürdigkeit von Gerichten von innen klar ausdrücke, bei letzteren auch dadurch, dass unter den Richtern Landsleute der Opfer und Täter sind, die für die angemessene Berücksichtigung des besonderen nationalen Kontexts einstehen, während die internationalen Richter des Tribunals die Fairness und Unparteilichkeit gewährleisten sollen. Mit Blick auf die gewissermaßen idealtypische Gegenüberstellung Malamud-Gotis möchte Tomuschat darauf hinweisen, dass die Alternative Gerichte von innen oder von außen häufig nicht besteht und internationale Institutionen der Strafverfolgung in ihren Verfahren die Bedenken gegenüber Gerichten von außen zu berücksichtigen bemüht sind, ohne das Ziel der Strafverfolgung und Bestrafung von Staatsverbrechen aufzugeben. 5.5

Transitorische Strafverfolgung in der Wahlsituation

Das vereinte Deutschland war im Vergleich zu Chile, Guatemala, Kambodscha, Sierra Leone oder dem ehemaligen Jugoslawien sicher ein sehr viel versprechender Ort der historischen Gerechtigkeit: die früheren Eliten der DDR hatten so gut wie keinen Ein40

Hierzu siehe L.H. Meyer, "'Gesetzen ihrer Ungerechtigkeit wegen die Geltung absprechen"', 34661.

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37

fluss auf den Modus der Transition. Insbesondere auch über die Frage der strafrechtlichen Sanktionierung der Regime verbrechen konnte bald nach dem Fall der Mauer frei entschieden werde. Insofern kann man idealtypisch von einer Wahlsituation sprechen: In der Wahlsituation kann eine neue Regierung den Übergang zu rechtsstaatlichen und demokratischen Verhältnissen bewerkstelligen und gleichzeitig Strafverfahren gegen Personen effektiv durchführen, die verdächtigt werden, Menschenrechtsverbrechen unter dem Vorgängerregime und in seinem Namen verübt zu haben. Diese Situation nenne ich die Wahlsituation, weil in dieser Situation Strafverfolgung und gegebenenfalls Bestrafung der Menschenrechtsverbrechen eine Option sind, welche die Transition to Democracy nicht gefährden. Claus Offe und Ulrike Poppe erörtern in ihrer soziologischen Studie zu Transitional Justice in der früheren DDR nach dem Zusammenbruch des alten Regimes und in Deutschland seit der Vereinigung, warum die Ergebnisse rückwärtsgewandter staatlicher Maßnahmen der strafrechtlichen Verfolgung und Bestrafung von Tätern41 und deren Disqualifikation für Tätigkeiten im öffentlichen Sektor ("Säuberung"42) wenig überzeugen können - und dies trotz der für eine rechtsstaatlichen Prinzipien genügende Aufarbeitung günstigen Bedingungen im vereinten Deutschland.43 Dass eine Transition to Democracy nur gelingen kann und glaubwürdig ist, wenn die notwendige Aufarbeitung des Regimeversagens und der Regime verbrechen den Ansprüchen an Rechtsstaatlichkeit genügt, also die Aufarbeitung bereits dem Charakter des demokratischen und rechtstaatlichen Nachfolgeregimes entspricht, ist eine Ausgangsthese der Autoren. Im Vergleich zur historisch-moralischen Studie von David Lyons ist der Fokus der Analyse von Offe und Poppe nicht die Begründung der Zuschreibung von individueller und kollektiver Verantwortung angesichts alternativer Handlungsoptionen, sondern die Analyse und Bewertung auf solcher Einschätzung beruhender Maßnahmen und Sanktionen während der Transition to Democracy. Eine breite und dominante Koalition der 41 42

43

Siehe oben Fn. 32. Säuberung bezieht sich also auf die Entfernung von Personen aus Ämtern oder Positionen und nicht auf Strafe im strafrechtlichen Sinne. Historisch gesprochen wurden allerdings Verfahren der Säuberung häufig mit strafrechtlichen Maßnahmen vermischt. Für vergleichende Untersuchungen und Bewertungen von Säuberung als eine unter anderen möglichen Reaktionen auf historisches Unrecht siehe A. Rzeplinski, "A Lesser Evil?", Transitional Justice, 484-87; P. Steinbach, "Vergangenheitsbewältigungen in vergleichender Perspektive", 20; J.H. Herz, "Denacification and Related Policies", 275-92,279-81, 287,289. Bei einer Transition to Democracy sind die Möglichkeiten der Durchsetzung kompensatorischer wie auch distributiver Gerechtigkeitsansprüche von Individuen und Gruppen häufig äußerst beschränkt, soll die Transition zu einer demokratischen Gesellschaft gelingen und langfristige Stabilität und Prosperität sichergestellt werden. Die entsprechenden pragmatischen Urteile beruhen auf schwierigen empirischen Einschätzungen der wahrscheinlichen Konsequenzen alternativer politischer und ökonomischer Strategien, sind abhängig von komplexen Güterabwägungen und werden häufig verbunden mit moralphilosophischen Einschätzungen der individuellen und kollektiven Verantwortung für historisches Unrecht und seiner Konsequenzen. Für höchst unterschiedliche Ansätze und Beiträge, sowohl was die Erklärung von Transitions to Democracy als auch die Politikempfehlungen angeht, vergleiche z.B. J.H. Herz, "Introduction", "Denacification and Related Policies" und "Conclusion", 3-12, 275-292; G. O'Donnell und P.C. Schmitter, Transitions from Authoritarian Rule, 28-32; S. Huntington, The Third Wave, 215-31; A. Przeworski, Democracy and the Market, Kap. 1 und 2, insbesondere 2f, 23-40, 51-54, 65-99; B.A. Ackerman, The Future of Liberal Revolution, 72-80; C.S. Nino, Radical Evil on Trial, Kap. 3, 117-34; J. Malamud-Goti, zuletzt in "Dignity, Vengeance, and Fostering Democracy", 418-450; und J. Elster, C. Offe und U.K. Preuß, Institutional Design in Post-Communist Societies. Zur Frage der Vergleichbarkeit der Transitionsprozesse in Lateinamerika und Zentral- und Osteuropa siehe V. Bunce, "Comparing East and South", 87-100; G.L. Munck und C.S. Leff, "Modes of Transition and Democratization", 343-62.

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politischen Akteure habe in Deutschland jedenfalls in den ersten Jahren nach dem Fall der Mauer eine Interpretation des früheren DDR-Regimes für richtig gehalten, nach welcher die rechtliche oder jedenfalls moralische Verantwortung für die negativen Ergebnisse des Regimes Individuen zugeschrieben werden kann, die Mitglieder des DDRRegimes gewesen sind. Diese Koalition vertrat außerdem die Auffassung, dass diese Personen zur Rechenschaft zu ziehen sind. Offe und Poppe stellen heraus, dass diese Interpretation gerade auch im Vergleich zu anderen früheren Staaten des so genannten Ostblocks oder lateinamerikanischen Staaten und deren Transition to Democracy ungewöhnlich ist. Das frühere Regime wird nicht als eine Katastrophe, sondern als ein Verbrechen bewertet, moralisch-rechtliche Schuldzuschreibungen an Individuen werden systemischen oder strukturalistischen Interpretationen vorgezogen, ferner sind es nicht regimeexterne Akteure, denen die Verantwortung zugeschrieben wird, sondern Mitglieder der eigenen Gesellschaft, und schließlich sollen die Täter nicht etwa amnestiert und die Verbrechen vergessen werden, sondern der Staat soll die Täter mit strafrechtlichen und anderen Sanktionen belegen. Zu den Gründen für diese jedenfalls in den ersten Jahren nach dem Fall der Mauer weithin geteilte Auffassung gehörten, so die Autoren, dass wegen der besonderen Umstände dieser Transition die früheren Eliten der DDR keinen Einfluss auf die politischen Entscheidungen über den Modus der Transition nehmen konnten, dass die Erfolgsaussichten (rechtsstaatlichen Prinzipien genügender) strafrechtlicher Verfolgung zunächst überschätzt wurden wie auch die Aussichten, mit solchen Verfahren den Bedürfnissen der Opfer des DDR-Regimes und der Etablierung rechtsstaatlicher Verhältnisse zu dienen, aber auch Gründe, die sich auf spezifische historische Interpretationen der Defizite des Umgangs mit der Nazivergangenheit insbesondere in West-Deutschland und der DDR stützen, und ferner durchaus instrumentellpolitische Erwägungen der verschiedenen Akteure. Offe und Poppe weisen mit Nachdruck darauf hin, dass die Individualisierung der unter dem DDR-Regime verübten Verbrechen, wie sie strafrechtliche Verfolgung erforderlich mache, deren systemische Qualität verkennt, die eben nicht auf die persönlichen Qualitäten der Akteure und die moralische Qualität ihrer Handlungen rückführbar sei. Staatssozialistische Gesellschaften wie die der DDR hätten alle Mittel der gesellschaftlichen Selbstbeobachtung, -bewertung und Kritik zerstört und deren Verwendung verboten, was dazu führte, dass diese Gesellschaften von durchaus unredlichen und unreellen Selbstbeschreibungen abhängig gewesen seien und von der gewaltsamen Unterdrückung derer, die die Wahrheit zu berichten versuchten oder sie mit anderen teilen wollten. Für die Aufrechterhaltung solcher Selbstbeschreibung und der Unterdrückung jeglicher Kritik seien enorme Ressourcen verwandt worden. Viele der vom DDR-Regime verursachten Schäden ließen sich strafrechtlich nicht oder nur ungenügend erfassen, gerade wenn rechtsstaatlichen Grundsätzen entsprochen werden sollte, nämlich z.B. die ökonomischen und ökologischen Schäden und auch die Schäden, die sich der kulturellen Repression verdanken. Diese Schäden seien dem System der DDR inhärent gewesen. Im vereinten Deutschland seien seit Anfang der 90er Jahre drei staatliche Strategien des Umgangs mit dem DDR-Regime parallel verfolgt worden: Erstens reguläre strafrechtliche Verfolgung und Bestrafung durch eine spezielle polizeiliche Ermittlungsstelle, Staatsanwaltschaft und die Strafgerichte, zweitens und ab 1991 die Bloßstellung von Tätern durch die Arbeit der so genannten Gauck-Behörde mit dem Ziel, den Opfern des Regimes die für sie relevanten Informationen bereitzustellen, aber auch strafrechtliche Verfolgung zu initiieren oder andere Sanktionen zu erlauben oder zu veranlassen (insbesondere die Disqualifikation aus dem öffentlichen Dienst), und drittens die Arbeit

T

Einleitung

39

einer Enquete Kommission des Bundestages, die der zeitgeschichtlichen Erforschung und politischen Debatte und Bewertung der DDR-Vergangenheit dient. Überraschen mag der geringe Erfolg der polizeilichen and staatsanwaltschaftlichen Ermittlungen, misst man den Erfolg an der Zahl der Verurteilungen und verhängten Gefängnisstrafen:44 Offe und Poppe berichten, dass es bis Ende März 1991 in nur 0.1% der über 22.000 untersuchten Fälle zu Gefängnisstrafen kam, nämlich in 20 Fällen, und in nur gut 200 Fällen zu Verurteilungen. Dies sei nur zum Teil damit zu erklären, dass die Strafverfolgungsbehörden und Gerichte rechtsstaatlichen Prinzipien verpflichtet seien, und dass die im Einigungsvertrag festgeschriebenen Bedingungen die Möglichkeiten der Strafverfolgung und insbesondere der Bestrafung von unter dem DDR-Regime begangenen Handlungen weiter einschränkten. Vielmehr sei die materielle und politische Unterstützung für die Strafverfolgung insbesondere durch die westdeutschen Länder zurückhaltend gewesen. Die Autoren benennen zahlreiche Gründe: das Interesse westdeutscher Eliten, dass ihre Kooperation mit dem Regime der DDR nicht Gegenstand strafrechtlicher Untersuchungen wird, der Umstand, dass die überwiegende Mehrheit der Bürger des vereinten Deutschlands nicht Opfer des DDR-Regimes waren, die Einschätzung der Staatsverbrechen der DDR als wenig schlimm nicht nur im Vergleich zu den Verbrechen des Naziregimes, sondern auch zu denen einiger anderer früherer Ostblockstaaten, die Einschätzung, dass es angesichts insbesondere der Massenarbeitslosigkeit in der früheren DDR Wichtigeres zu tun gebe, und nicht zuletzt der Umstand, dass der politische Einfluss der früheren DDR-Opposition und der Opfer des Regimes im vereinten Deutschland spätestens nach den ersten Bundestagwahlen im vereinten Deutschland gering war. Auch angesichts der mageren Ergebnisse der strafrechtlichen Verfolgung war, so Offe und Poppe, das Interesse an der Arbeit der Gauck-Behörde groß. Die Verwendung der Informationen, die die Behörde spezifischen Akteuren zur Verfügung stellt, liegt nicht in der Verantwortung der Behörde und führt häufig zu sozialen Sanktionen, gegen die sich die Betroffenen mit Rechtsmitteln nicht wehren können, oder zu solchen Sanktionen, insbesondere der Entlassung aus dem öffentlichen Dienst, gegen welche zwar zivilrechtliche Klage möglich ist und häufig auch erfolgreich war, wie Offe und Poppe berichten, deren Begründung aber weniger strikten Bedingungen unterliegt als strafrechtliche Maßnahmen. Die Angemessenheit der sozialen Sanktionen aufgrund der durch die Gauck-Behörde zur Verfügung gestellten Informationen sei schon deshalb häufig fragwürdig gewesen, weil der Wahrheitsgehalt der auf Unterlagen der früheren DDR-Staatssicherheit beruhenden Informationen häufig umstritten und die Interpretation dieser Unterlagen jedenfalls schwierig sei. Zudem waren die Entlassungen aus dem öffentlichen Dienst wohl kaum fair, denn die Praktiken der Länder und der jeweils zuständigen Behörden innerhalb der Länder divergierten erheblich. Der starke Bedarf an bestimmten Beschäftigten, etwa Polizisten, dürfte dazu beigetragen haben, dass man ausgerechnet ihnen gegenüber Nachsicht walten ließ, sie auch dann als Beamte weiterbeschäftigte, wenn bekannt war, dass sie inoffizielle oder offizielle Mitarbeiter der Stasi gewesen waren. Schon der Umfang des Berichts der Enquete-Kommission, nämlich 18 veröffentlichte Bände, die zudem eine verhältnismäßig frühe Stufe der wissenschaftlichen Erforschung des DDR-Regimes reflektieren, haben dazu beigetragen, so Offe und Poppe, dass die öffentliche Aufmerksamkeit für den Bericht und auch seine bleibende Wirkung beschränkt sind. In der Sache kritisieren sie den einseitigen Fokus des Berichts auf den 44

Dies bestätigt Teitels Interpretation transitorischer Strafgerechtigkeit. Siehe oben Fn. 32 und Text.

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Unterdrückungsapparat des DDR-Regimes und seine Opfer unter weitgehender Ausklammerung der systemischen ökonomischen und ökologischen Defizite und Katastrophen und ohne Erwähnung der Bereiche des Regimes, die wenig beanstandenswert gewesen seien, etwa die Gesundheitsversorgung. 5.4

Transitorische Strafverfolgung in der Notsituation

Hatten die politischen Eliten des vereinten Deutschlands erheblichen Gestaltungsspielraum in der Wahl des Modus der Transition to Democracy und auch mit Blick auf die Sanktionen ob der DDR-Regimeverbrechen, so können idealtypisch die politischen Rahmenbedingungen der Transition im antiken Athen 403 v. Chr. und der südafrikanischen Ablösung des Apartheidregimes durch eine demokratische Ordnung Anfang der 90er Jahre jeweils als eine Notsituation beschrieben werden: In beiden Fällen war zum jeweiligen Zeitpunkt nur durch Verzicht auf insbesondere die Bestrafung der Verbrechen des Vorgängerregimes eine friedliche Transition möglich.45 Anders als im vereinten Deutschland, indem die früheren Eliten der DDR so gut wie keinen Einfluss auf die Gestaltung der Transition to Democracy nehmen konnten und die zu treffenden Entscheidung in der Verantwortung insbesondere der westdeutschen Eliten lag, hat im Falle der zweiten Transition im antiken Athen eine externe Macht, nämlich Sparta nicht nur die Ablösung der vordem von Sparta protegierten Dreißig Tyrannen ermöglicht sondern seinen Einfluss auch zugunsten der Straffreiheit der Tyrannen und ihrer Helfershelfer und des Schutzes ihrer Eigentumsinteressen eingesetzt. Im Falle Südafrikas war eine Bedingung für eine friedliche Transition vom Apartheidregime zu einer demokratischen Post-Apartheid-Ordnung, dass denen, die für die im Name des Apartheidregimes verübten Verbrechen verantwortlich sind, eine wenn auch bedingte straf- und zivilrechtliche Amnestie eingeräumt wurde. Andernfalls drohten Teile des Militärs und der Sicherheitskräfte mit Sabotage der Transition und Bürgerkrieg. In der so genannten Notsituation ist also der Verzicht auf Strafverfolgung und Bestrafung eine Bedingung des friedlichen Übergangs zu rechtsstaatlichen Verhältnissen, unter denen Menschenrechtsverbrechen effektiv verhindert werden können. Eine postdiktatorische Regierung kann sich hier nur unter Bedingungen einer weitgehenden Amnestierung der unter dem Vorgängerregime verübten politischen Straftaten etablieren. Dass die je besonderen Umstände einer Notsituation im Falle Athens und Südafrikas vorlagen wird von Jon Elster in seiner Interpretation der Transitions im antiken Athen ebenso vorausgesetzt wie von David Crocker in seiner Kritik an den moralischen Argumenten von Erzbischof Desmond Tutu zugunsten der südafrikanischen Wahrheitsund Versöhnungskomission. Zwar dürften externe Faktoren und insbesondere der Einfluss Spartas den Modus der Transition im Jahre 403 v. Chr. im starken Maße bestimmt haben, aber, so Elsters zentrale These, die erheblichen Unterschiede der zwei kurz aufeinander folgenden Transitions to Democracy im antiken Athen, nämlich im Jahre 411 und 403 v. Chr., seien auch als Ausdruck eines Lernprozesses zu verstehen.46 Die erste Transition habe im Wesentlichen das Ziel retributiver Gerechtigkeit und das Ziel der Abschreckung weiterer diktatorischer Umsturzversuche zugunsten der Rückkehr zu einer populistischen Demokratie verfolgt. Dies habe der Tradition einer bis auf die Be45 46

Ein anderer klarer Fall ist Chile. Siehe z.B. C.S. Jorge, "Dealing with Past Human Rights Violations", 1455-85, 1457-63. Siehe auch den Beitrag J. Malamud-Gotis in diesem Bd. Zur Transition im Jahre 403 v. Chr. siehe auch schon J. Elster, "Coming to Terms With the Past" 7-48.

Einleitung

41

mühungen Solons zurückreichenden Serie von Reformen entsprochen, die zu Verhältnissen führten, in denen populäre Macht weitgehend unbeschränkt galt. War diesen Verhältnissen schon die erste nur vier Monate dauernde Diktatur geschuldet, so zählen sie wenigstens auch zu den indirekten Ursachen der zweiten, nämlich der Diktatur der Dreißig, die von Sparta unterstützt 404 v. Chr. ein Terrorregime einrichteten. Die Transition to Democracy im Jahre 403 verfolgt das Ziel der Versöhnung und des Ausgleichs der Interessen der Bürgerkriegsparteien durch bedingte Teilamnestie, die Abschreckung von Klagen von Verbrechen, die unter die Amnestie fallen, das legalisierte Exil für die, die nicht unter die Amnestie fallen, und den Schutz von unter der Diktatur erworbenem beweglichen Eigentum. Die Schaffung rechtsstaatlicher Verhältnisse auf der Grundlage von Verfassungsänderungen habe der Stabilisierung demokratischer, nicht aber populistischer Verhältnisse gedient. Andere Maßnahmen sorgten dafür, dass die Tyrannen und ihre Helfershelfer längerfristig von politischen Entscheidungsfunktionen ausgeschlossen wurden. Elster versteht diese zweite Transition nicht einfach als von Sparta, dem früheren Verbündeten der Tyrannen, aufgezwungen, sondern als einem positiven Lernprozess geschuldet, der angesichts einer zweiten Diktatur in kurzer Zeit auf die Schaffung eines stabilen demokratischen Regimes durch Interessenausgleich setzt, auch wenn dies bedeutete, auf strafrechtliche Verfolgung der für die Regimeverbrechen Verantwortlichen und ihrer Helfershelfer weitgehend zu verzichten wie auch erhebliche Abstriche zu machen bei den durchaus legitimen Ansprüchen auf Kompensation der Opfer und der Eigentumsansprüche der in die Stadt zurückkehrenden Demokraten. Erzbischof Desmond Tutu, war Vorsitzender der südafrikanischen Wahrheits- und Versöhnungskommission (Truth- and Reconciliation Commission, im Weiteren TRC). Nicht Tutus praktische Erwägungen, die die besonderen Umstände der südafrikanischen Notsituation reflektieren, sondern dessen moralische Argumente zugunsten der mit der TRC verbundenen bedingten Amnestie der unter dem Apartheidregime verübten Menschenrechtsverbrechen sind Gegenstand der Studie David Crackers. Crocker kritisiert die moralische Rechtfertigung, die der neben Präsident Nelson Mandela wohl wichtigste Repräsentant des neuen Südafrika, Desmond Tutu für den Modus der südafrikanischen Transition sowohl in seiner Rolle als Vorsitzender der TRC als auch als Autor gegeben hat. Selbst wenn die Notsituation eine Transition nur unter der Bedingung einer Amnestie erlaubte, kann doch die öffentliche Rechtfertigung einer solchen Amnestie kritisiert werden. Crocker unterscheidet zwei Argumente Tutus, das "Argument gegen Rache" und das "Versöhnungsargument", weist beide zurück und vertritt die These, dass richtig verstanden Bestrafung und Versöhnung äußerst wichtige moralische Ziele sind, die sich nicht ausschließen müssen, wenn sie auf angemessene Weise verfolgt werden. Tutus Argument gegen Rache sei ein nicht-konsequentialistisches Argument, das Strafe mit Retribution identifiziere, Retribution mit Rache gleichsetze und zu dem Schluss komme, dass Strafe moralisch falsch sei, weil Rache zu nehmen moralisch abzulehnen ist. Tutus Versöhnungsargument sei ein konsequentialistisches Argument, das die Bestrafung von Menschenrechtsverbrechern für moralisch falsch hält, weil sie frühere Feinde weiter entzweie und soziale Heilung verhindere. Versöhnung, also die (Wieder-) Herstellung sozialer Harmonie, werde am besten befördert, wenn die Gesellschaft Amnestie gewähre und die Opfer den Tätem vergeben. Mit Blick auf Tutus Argument gegen Rache weist Crocker daraufhin, dass Tutu selbst die Drohung mit staatlicher Strafe für legitim halten muss, denn das Amnestieangebot der TRC ist ein bedingtes, und für Straftäter, die die Bedingungen nicht erfüllen, gilt, dass sie strafrechtlich belangt werden sollen und dürfen. Ferner könne Retribution

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"7

Einleitung

43

ten Menschenrechtsverbrecher (sowie die gerichtlich verordnete Restitution der Opfer) zur Durchsetzung solcher Versöhnung beitragen kann: Denn diese Urteile der Straf- und Zivilgerichte, so sie gerecht und Ergebnis fairer Verfahren sind, können die wechselseitige Anerkennung aller als Bürger mit gleichen Rechten in einer rechtsstaatlichen Demokratie fördern. Aus dem Umstand, dass das Angebot einer in Verbindung mit der Einrichtung der Wahrheits- und Versöhnungskommission gewährten bedingten Amnestie in Südafrika Voraussetzung für die friedliche Transition zu einem Post-Apartheid Regime gewesen sei, könne nicht geschlossen werden - und die entsprechenden empirischen Behauptungen Tutus hielten einer Überprüfung nicht stand -, dass staatliche Strafe für Regime verbrechen der Durchsetzung der für eine Demokratie angemessenen Konzeption von Versöhnung generell abträglich sei oder gar dass Vergebung der Opfer und die Annahme solcher durch die Täter Voraussetzung für Versöhnung sei. Inwiefern strafrechtliche Verfolgung und Bestrafung von schlimmen, im Namen des Vorgängerregimes verübten Verbrechen wünschenswert sei, ob solche Verfolgung und Bestrafung Aufgabe der Institutionen des Nachfolgeregimes, der Institutionen anderer Staaten oder internationaler Institutionen sein solle, ob und wie insbesondere Wahrheitskommissionen mit den Strafverfolgungsbehörden und Strafgerichten kooperieren sollen, und gegebenenfalls zu welchem Zeitpunkt retributive Gerechtigkeit ein angemessenes politisches Ziel sein könne, dies seien Fragen, die nur unter Berücksichtigung der jeweils besonderen Bedingungen einer Transition zu rechtsstaatlichen Verhältnissen zu beantworten und in häufig schwierigen Güterabwägungen zu begründen seien. Gerade die jüngste internationale Praxis - etwa die Bemühungen um strafrechtliche Verfolgung Pinochets und die Einrichtung internationaler Straftribunale und des internationalen Strafgerichtshofes - unterstreiche, dass die Durchsetzung retributiver Gerechtigkeit sowohl um ihrer selbst willen als auch wegen ihrer positiven Auswirkungen für eine Transition zu rechtsstaatlichen Verhältnissen geschätzt werde.

nicht mit Strafe gleichgesetzt werden. Vielmehr sei Retribution eine Rechtfertigung für Strafe: Nur aufgrund seiner Straftat darf der Täter bestraft werden, weil er es dann verdient hat, in einer der Schwere der Straftat angemessenen Weise bestraft zu werden. Solche Strafe könne aber auch abschreckende, den Täter rehabilitierende oder versöhnende Wirkung haben. Allerdings seien solche Konsequenzen nach Auffassung des Retributivisten keine Rechtfertigung für staatliche Strafe. Retribution dürfe nicht mit Rache und Vergeltung gleichgesetzt werden. Zwar sei richtig, dass Retribution und Rache in vorrechtlichen Sitten und der Praxis der Strafgerichte und des Strafvollzugs nicht immer und nicht vollständig getrennt werden. Richtig verstanden unterscheide sich Retribution aber von Rache in wenigstens den folgenden Hinsichten: Retribution beziehe sich ausschließlich auf Unrechtshandlungen, nicht auf irgendwelche Verletzungen oder Kränkungen, auf die mit Rache reagiert werden kann; während Rache keine Grenzen kenne, unersättlich und unbeschränkt sei, diene Retribution der Rechtfertigung und Festsetzung gerechter Strafe; retributive Strafe entspreche dem Gerechtigkeitsideal der Unparteilichkeit, während Rache persönlich und parteilich sei und auf Befriedigung dessen ziele, der Rache nehme, eine Emotion, die der Retribution fremd sei; retributive Strafe, nicht aber Rache sei dem Prinzip, gleiche Fälle gleich zu behandeln, verpflichtet; und Retribution erlaube nur die Bestrafung der Unrechtstäter, während Rache auch an Mitgliedern der Gruppe oder Angehörigen der Täter genommen werden könne. Deshalb scheitere Tutus Argument gegen Rache: Auch wenn Rache zu nehmen moralisch falsch sei, weil Rache gänzlich unabhängig von der unparteilichen Beurteilung des Verdiensts von Personen auf deren Verletzung ziele und auch der Gleichbehandlung gleicher Fälle nicht verpflichtet sei, könne sich daraus kein Argument gegen retributive Strafe ergeben. Das konsequentialistische Versöhnungsargument untersucht Crocker, indem er drei Konzeptionen von Versöhnung unterscheidet und argumentiert, dass einerseits die sozial heilende Wirkung von Amnestie und Vergebung nicht über- und andererseits die versöhnende Kraft der Gerechtigkeit nicht unterschätzt werden dürfe. Die erste Versöhnungskonzeption ist das von Tutu vertretene Ideal des Ubuntu, das auf soziale Harmonie durch die Restitution der moralischen Beziehungen zwischen Tätern und Opfern als höchstes Gut zielt. Weder sei aber, so Crocker, soziale Harmonie per se gut, noch biete diese Konzeption Antworten auf die Fragen, wie mit denen umzugehen sei, die zur Versöhnung nicht bereit seien, und wie die Aufrichtigkeit der verlangten moralischen Bemühungen der Bürger zu überprüfen ist. Viel weniger voraussetzungsreich sei die Versöhnungskonzeption der friedlichen Koexistenz früherer Feinde. Solche Koexistenz verlange von allen lediglich die Nicht-Verletzung der Grundrechte anderer. Deutlich weniger voraussetzungsreich sei auch die Versöhnungskonzeption der demokratischen Reziprozität, gemäß welcher von früheren Feinden, Tätern, Opfern und Unbeteiligten verlangt werde, sich wechselseitig als Bürger anzuerkennen, die gleichberechtigt an demokratischen Verfahren teilhaben, mittels welcher Entscheidungen gerade auch über die Fragen getroffen werden, in denen kein Konsens erzielt wird. Beide Alternativen verlangen von den Opfern keine Vergebung und zielen nicht notwendig auf Harmonie im Sinne Tutus. Versöhnung als demokratische Reziprozität überlässt es den Bürgern zu entscheiden, in welchen Regelungsbereichen welche Werte welchen Rang genießen sollen, und die Bürger können sich gemäß dieser Versöhnungskonzeption mit Blick auf unter und im Namen des Vorgängerregimes verübte Menschenrechtsverbrechen für Bestrafung der Täter im Sinne der Retribution entscheiden. Crocker spricht sich für die Versöhnungskonzeption demokratische Reziprozität aus und argumentiert, dass die im Sinne der Retribution gerechte Bestrafung der schlimms-

Allerdings hat Crocker zwar Tutus Verständnis retributiver Strafe kritisiert, aber kein Argument zugunsten retributiver Strafe um ihrer selbst willen formuliert. Crocker ist der Auffassung, dass strafrechtliche Verfolgung und staatliche Strafe von Regimeverbrechen unter Hinweis auf den Wert der Retribution zu rechtfertigen sind. Zugleich hält er die Entscheidung für Sache des demokratischen Gesetzgebers. Offenbar vertritt Crocker nicht die Position des positiven Retributivismus, die man so verstehen kann, dass der Schuldige ohne Ausnahme bestraft werden muss und zwar in dem Maße, wie er es aufgrund des von ihm verübten Unrechts verdient.47 Man könnte Crocker vielmehr die Position eines schwachen Retributivismus zuschreiben: Staatliche Strafe kann zwar unter Hinweis auf den Wert der Retribution legitimiert werden, kann aber nie allein unter Hinweis auf die durch Strafe realisierte retributive Gerechtigkeit legitimiert sein. Gemäß dieser Position des schwachen Retributivismus ist Retribution also ein notwendiger, aber kein hinreichender Grund für staatliche Strafe, oder werttheoretisch ausgedrückt, Retribution ist nur ein, womöglich das zentrale konstitutive und intrinsisch wertvolle Element gerechter Strafe. Retributive Gerechtigkeit für sich genommen kann 47

1

Siehe J.L. Mackie, "Morality and the Retributive Emotions", 3-10; D. Dolinko, "Some Thoughts about Retributivism", 537-59, 539-43. Die Behauptung, solche Bestrafung der Täter sei auch dem Opfer geschuldet, ist eine zusätzliche. Ein einflussreiches Argument zugunsten dieser Behauptung lautet, dass der Unrechtstäter sich durch die Tat einen unfairen Vorteil verschafft hat, indem er die für alle gleichermaßen und zum Schutz aller geltenden Regeln der Verhaltenseinschränkung verletzt hat, und dass seine Bestrafung dazu dient, ihm diesen Vorteil gegenüber denen, welche die Regeln einhalten, und insbesondere gegenüber dem Opfer wieder zu nehmen (siehe z.B. J.B. Murphy, "Marxism and Retribution", 217-43).

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demnach den Staat nicht verpflichten, einen Straftäter zu bestrafen, und erst recht gibt sie dem Opfer kein Recht auf Bestrafung des Täters. Schwacher Retributivismus ist ein Typ einer Mischtheorie der Rechtfertigung von staatlicher Strafe, insofern der schwache Retributivismus retributive und andere Gründe für notwendige und nur zusammen genommen hinreichende Rechtfertigungsgründe staatlicher Strafe erachtet. 6. Die Haltung der Opfer Crackers Kritik an den moralischen Argumenten Tutus zielen auf den Ausweis gerechter politischer Prinzipien der Transition to Democracy. David Heyd macht in seiner vergleichenden Interpretation der Position Tutus und der Überlegungen von Jean Amery deutlich, dass, erstens, für beide die moralische Reflektion, welche Haltung der Opfer von schlimmen Regimeverbrechen angemessen ist, grundlegend ist, dass aber, zweitens, im Falle Tutus diese Reflektion die Rechtfertigung zukunftsorientierter politischer Prinzipien für die Transition to Democracy prägen, während Amery darauf beharrt, dass die Plausibilität der von ihm für angemessen gehaltenen vergangenheitsorientierten Haltung der Opfer nicht an ihren politischen Implikationen gemessen werden kann. Damit weist Heyd auf eine für das Verständnis der Position Tutus wichtige moralische Dimension hin, nämlich die Fundierung seiner politischen Bemühung um Versöhnung in der christlichen Moral. Zugleich erinnert seine Interpretation der Position Amerys daran, dass eine moralisch plausible Haltung der Opfer, nämlich die des Ressentiments, mit der Position Tutus unvereinbar ist. Während Tutu im Post-Apartheid-Afrika auch in seiner Funktion als Vorsitzender der Wahrheits- und Versöhnungskommission für restaurative Gerechtigkeit und Versöhnung eintritt, verteidigt Amery das Ressentiment als moralische Reaktion des Opfers von Unrecht. Bei seinem Vergleich der Positionen geht es Heyd insbesondere um zwei Fragen: Erstens, sind und inwiefern sind die vergangenheitsorientierte Reaktion der retributiven Gerechtigkeit und des Ressentiments und die zukunftsorientierte der restaurativen Gerechtigkeit und der Versöhnung moralisch? Zweitens, in welchem Verhältnis steht die moralische Reaktion des Opfers zu den moralisch ausweisbaren politischen Prinzipien des Umgangs mit Unrecht und der Transition to Democracy? Das moralische Urteil kann zukunfts- und vergangenheitsorientiert sein. Typischerweise soll ein solches Urteil handlungsanleitend sein. Andererseits kann ein solches Urteil den Wert von Handlungen beurteilen, die längst ausgeführt und nicht mehr zu beeinflussen sind. Der Gegenstand moralischer Urteile kann die distributiv gerechte Verteilung von Gütern in der Zukunft sein, die retributiv gerechte Bestrafung sowie verdammende oder belobigende Beurteilung von Menschen aufgrund von früheren Handlungen oder Leistungen, aber auch die moralische Angemessenheit von mentalen Einstellungen und persönlichen Reaktionen auf Unrecht. Auch letztere können zukunfts- oder vergangenheitsorientiert sein: Einerseits Hoffnung, die Bereitschaft zu Ver48

Der bekannteste Typ der Mischtheorie ist der von H.L.A. Hart, "Prolegomenon to the Principles of Punishment", 1-27: Das Strafe generell rechtfertigende Ziel ist utilitaristisch aufzufassen, die Verfolgung dieses Ziels unterliegt aber einer retributivistischen Einschränkung im Sinne des negativen Retributivismus, gemäß welchem nur der Schuldige, der für die Tat im relevanten Sinn Verantwortliche, bestraft werden darf. Gewissermaßen ist Harts Position spiegelverkehrt zu der des schwachen Retributivismus, insofern für Hart andere als retributive Gründe, nämlich utilitaristische, die zentralen Rechtfertigungsgründe sind, während es für den schwachen Retributivismus die retributiven sind. Siehe auch N. Lacey, State Punishment, Kap. 2. Für eine Kritik des Retributivismus siehe z.B. D. Dolinko, 'Three Mistakes of Retributivism", 1623-57.

Einleitung

45

söhnung und dazu, die ursprüngliche Beziehung wiederherzustellen, andererseits Rachsucht, Groll und nicht bereit zu sein zu vergessen und zu vergeben. Während die Gerechtigkeitsurteile politisch sind und beanspruchen, für das Kollektiv handlungsanleitend zu sein, beziehen sich die Urteile über die angemessene Haltung auf die Reaktion insbesondere des Opfers von Unrecht. Gemäß Heyds Interpretation exemplifizieren die Urteile Tutus und Amdrys über die Angemessenheit der Reaktion der Opfer die Urteile je eine der Orientierungen moralischer Urteile, die Zukunfts- und die Vergangenheitsorientierung. Folgen wir der Interpretation Heyds, so ist für Amery die Haltung der Opfer moralisch grundlegend. Von der Gesellschaft als Ganzer kann nur eine zukunftsorientierte, ihre Fortexistenz sichernde Reaktion auf Unrecht erwartet werden. Die angemessene Reaktion der Opfer ist aber die des Ressentiment, eine Haltung, die sie darauf insistieren lässt, dass das Unrecht erinnert wird, und auch von denen, die dazu neigen, es zu vergessen. Diese Reaktion ist nach Auffassung Am6rys moralisch angemessen, obgleich sie unnatürlich ist, sich gegen die natürliche Zukunftsorientierung unserer gewöhnlichen normativen Einschätzungen wendet. Die Reaktion des Ressentiments ist moralisch angemessen, auch wenn sie sich politisch nicht durchsetzen kann. Für AmeYy ist die moralische Position, die zählt, die persönliche des individuellen Opfers von Unrecht. Ressentiment als Haltung zielt weder auf die Bestrafung des Schuldigen noch auf die Vergebung der Schuld. Angesichts schlimmsten Unrechts zielt Moral, wie Amery sie versteht, weder auf einen retributiv gerechten Ausgleich noch den Neuanfang nach Schuldeingeständnis und Vergebung. Moral verlangt vielmehr, dass die Rechnung offen bleibt, dass wir auf die Vergangenheit orientiert sind und bleiben. Groll ist die angemessene Haltung der Opfer, Scham die derer, die der Tätergruppe angehören. Kollektive Scham angesichts des in ihrem Namen verübten Unrechts sollte konstitutives Element der Haltung der Nachfahren der Täter sein.49 Für Tutu hingegen ist das Ziel der Auseinandersetzung mit historischem Unrecht die (Wieder-)Herstellung gerechter Verhältnisse und die Versöhnung von Opfern und Tätern. Ziel ist nicht Rache und Bestrafung, noch darf das Unrecht vergessen werden. Vielmehr sollen Opfer und Täter im Verfahren der Wahrheits- und Versöhnungskommission die Wahrheit über die Unrechtstaten aufdecken und mit dieser Wahrheit konfrontiert ihre Beziehung heilen. Von den Tätem wird verlangt, dass sie ihre Täterschaft vollständig offen legen, den Opfern wird als wünschenswert nahegelegt, dass sie um der Herstellung gerechter Verhältnisse willen ihren Groll und ihre Rachegefühle überwinden.50 Die Aufdeckung und autoritative Feststellung der Wahrheit dient der Transfor49 50

Hierzu siehe Fn. 28 oben. Opfer des Apartheidregimes haben die südafrikanische Wahrheits- und Versöhungskommission (Truth and Reconciliation Commission (TRC)) insbesondere dafür kritisiert, dass die von der Kommission gegebenenfalls gewährte Amnestie auch alle zivilrechtlichen Ansprüche der Opfer ausschließt, also die Ansprüche der Opfer auf Kompensation und Restitution gegen die Täler. Das südafrikanische Verfassungsgericht hat eine entsprechende Klage zurückgewiesen. Für eine Analyse siehe F. Venter, "Die verfassungsmäßige Überprüfung der Rechtsgrundlagen von Südafrikas 'Truth and Reconciliation Commission'", 147-57. Für das Argument, dass Reparationsleistungen durch die für die Verbrechen unter dem Apartheidregime Verantwortlichen notwendige Voraussetzung für die Koexistenz von schwarzer und weißer Bevölkerung in Südafrika sind, siehe W. Soyinka, The Burden of Memory, the Muse of Forgiveness, Teil I, insbesondere 35f. Die Republik Südafrika hat die Verantwortung für Reparationszahlungen übernommen. Im Bericht der südafrikanischen Wahrheitskommission wird auf die knappen Ressourcen des Staates hingewiesen, die angesichts der vielen direkten und indirekten Opfer des Apartheidregimes umfangreiche Reparationszahlungen an Personen, die Opfer politisch motivierter Menschenrechtsverbrechen unter dem Apartheidregime geworden sind, ausschließen (Truth and Reconciliation Conunission of South

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mation von Tätern und Opfern, der Heilung ihrer Beziehung und der (Wieder-) Herstellung gerechter Verhältnisse. Zwar kann von den Opfern nicht verlangt werden, dass sie den Tätern vergeben. Politisch jedoch wird den Tätern, die ihre Tat bekennen, Amnestie gewährt. Heyd weist darauf hin, dass Tutu, anders als Amery, in der bedingten Amnestie der Täter nicht alleine einen politischen Kompromiss mit den Tätern erkennt, der wegen der Transition zu rechtsstaatlichen Verhältnissen notwendig ist. Vergebung ist für Tutu christlich-theologisch fundiert. Auch Täter schlimmsten Unrechts sind "Kinder Gottes". Vergebung setzt die Ehrlichkeit ihres Schuldeingeständnisses ebenso wie ihre Fähigkeit, sich zu ändern voraus, und setzt zugleich auf die transformatorische Wirkung der Vergebung. Wenn die Position Tutus eine transitorische Auseinandersetzung mit der Vergangenheit verlangt, so dient diese dem zukünftigen Wohl der Gesellschaft als Ganzer. Amerys Beharren auf dem Ressentiment als der moralisch einzig angemessenen, ständigen und nicht zu transformierenden Haltung der Opfer, die auf die immer wieder zu aktualisierende Erinnerung von Unrecht zielt, ist damit schwer zu vereinbaren. Bleibt zu betonen, dass Opfer, die die Haltung des Ressentiments einnehmen, auch keinem anderen transitorischen Programm dienen möchten. 7. Schlussbemerkung Historische und transitorische Gerechtigkeit werfen unterschiedliche Fragen auf. Die spezifischen philosophischen Probleme intergenerationeller Gerechtigkeit mit Blick auf historisches Unrecht, nämlich insbesondere die mit der Kontingenz der Existenz und Identität von Personen verbundenen Probleme (Abschnitt 1), sind von praktischer Relevanz allein für die Einschätzung der Ansprüche der den Opfern von Unrecht nachfolgenden Generationen, der indirekten Opfer. Häufig sind indirekte Opfer historischen Unrechts allerdings auch direkte Opfer von neuem schädigendem Unrecht. Dies ist z.B. dann der Fall, wenn sie als indirekte Opfer keine Anerkennung finden und ihre Ansprüche auf Kompensation oder Restitution deshalb nicht erfüllt werden.51 Weder das Nicht-Identitätsproblem noch die Überlegungen, auf welchen Jeremy Waldrons Aufhebungsthese beruhen, sind, wie in Abschnitten 1.2 und 3. betont, für die Interpretation aller besonderen Ansprüche wegen historischen Unrechts und Pflichten gegenüber Opfern oder mit Blick auf Opfer historischen Unrechts relevant. Für die Überlegungen, die für die Abschwächung historischer Ansprüche wegen veränderter Umstände sprechen, gilt, dass sie, so sie relevant sind, in unterschiedlichem Maße für die Einschätzung der Stärke spezifischer historischer Ansprüche und der Möglichkeiten ihrer Realisierung relevant sind (3.2-3.3). In einem konkreten Fall historischen Unrechts sind also eine Reihe von Überlegungen wichtig für die Einschätzung verschiedener Ansprüche der Opfer und indirekten Opfer sowie der Pflichten heute lebender Personen. Ein theoretisch sehr anspruchsvolles Unterfangen wäre es, alle diese Überlegungen integrieren zu wollen, so dass wir über eine generelle Theorie der Gerechtigkeit in der Zeit verfügten, deren womöglich univer-

51

Africa Report, Bde. 1-5, Bd. 1, 129). Dies dürfte für die Nachfahren der Sklaven in den USA gelten (siehe den Beitrag von D. Lyons) und für die Nachfahren der Roma und Sinti, die Opfer des versuchten Genozids der Nazis gewesen sind, auch wenn ihre Anerkennung als (indirekte) Opfer in jüngster Zeit auch im Sinne der Durchsetzung von Kompensations- und Restitutionsansprüchen deutliche Fortschritte aufweist. Zu den Roma und Sinti, siehe L.H. Meyer, "Transnational Autonomy", 263-301, 268f, 277-9, 295-9.

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seil geltende Prinzipien im konkreten Fall bestimmte Reaktionen auf das Unrecht als geboten ausweisen könnten. Eine plausible Theorie dieser Art ist mir nicht bekannt.52 So bemühen sich die Autoren dieses Bandes vielmehr - wenn auch auf durchaus unterschiedlichen Ebenen der Abstraktion und Generalität - um die Analyse der normativen Signifikanz einzelner Aspekte historischen Unrechts sowie den kontextsensiblen Ausweis der Bedeutung solcher Überlegungen für die Einschätzung von Rechten, Ansprüchen und Pflichten angesichts bestimmter Fälle historischen Unrechts und ihrer anhaltend schädigenden Wirkung auf das Wohlergehen heute und zukünftig lebender Menschen.

52

Eine solche Theorie wäre eine nicht-ideale Theorie oder schlösse jedenfalls eine nicht-ideale Theorie ein. Philosophen neigen zu der Auffassung, dass es eine generelle nicht-ideale Theorie nicht geben könne. So unterschiedlich etwa John Rawls' und Brian Barrys Auffassung auch mit Blick darauf sind, wie in einer vertragstheoretischen Argumentation nicht-ideale Handlungsbedingungen zu berücksichtigen sind - siehe B. Barry, "Can States Be Moral?", 159-181, 169f; siehe auch die Kritik der Rawlsschen Position durch G.A. Cohen in "Incentives, Inequality, and Community", 261-329; ders, "Where the Action Is", 3-30; für eine Verteidigung der Rawlsschen Position siehe T.W. Pogge, "On the Site of Distributive Justice", 137-69 -, teilen Rawls und Barry doch die Überzeugung, eine generelle Theorie des Verhältnisses von idealer normativer zu nicht-idealer normativer Theorie könne es nicht geben (siehe J. Rawls, A Theory of Justice, 245-246, 351, 575f; B. Barry, Theories of Justice). Auch Otfried Hoffe mochte in Strategien der Humanität keine generelle Theorie politisch-moralischer Entscheidung entwickeln, sondern "Bausteine" einer Theorie der Entscheidungsfindung über öffentliche Handlungen in modernen Industriegesellschaften ausweisen (siehe insbesondere 336-337). Gegen die Möglichkeit einer generellen nichtidealen Theorie spricht, worauf Jon Elster mit Nachdruck hinweist, dass wir keine Theorie haben, die "can help us predict the long term steady-state consequences of global policy changes." (J. Elster, "The Possibility of Rational Politics", 115-42, 122) Uns fehlt eine Theorie des "general social and economic equilibrium", welche die Grundlage für die entsprechenden Vorhersagen sein könnte (siehe R.G. Lipset und K. Lancaster, 'The General Theory of the Second-Best", 11-32); siehe auch A. Margalit, "Ideals and Second Bests", 77-90. Jeremy Bentham und seine Anhänger waren da sehr viel ehrgeiziger. Bentham beanspruchte sowohl ein letztgültiges, für alle Handelnden gleichermaßen und universell anzuwendendes Kriterium richtigen Handelns auszuweisen (das Nutzen-Prinzip) und auch eine universell anwendbare Methode der Entscheidungsfindung (den so genannten hedonistischen Kalkulus). Siehe J. Bentham, An Introduction to the Principles of Morals and Legislation, Kap. i "Of the Principle of Utility", 12; für den hedonistischen Kalkulus siehe Kap. iv "Value of a Lot of Pleasure or Pain, How to be Measured". Für eine Kritik von Benthams Kalkulus als weder anwendbar noch als eine adäquate Reflektion des Benthamschen Nutzen-Prinzips siehe O. Hoffe, Strategien der Humanität. Für eine Kritik von Benthams Nachfolgern in der Wohlfahrtsökonomie und der Theorie sozialer Entscheidung siehe ebd., Kap. v. Vielfach modifizierte utilitaristisch-konsequentialistische Positionen mit Blick auf die moralischen Ansprüche von Individuen unter nicht-idealen Bedingungen haben aber auch Verteidiger gefunden: P. Singer, "Famine, Affluence, and Morality", 229-43; D. Birnbacher, Verantwortung für zukünftige Generationen, 16-23, 173-5, 187-90; und P. Unger, Living High and Letting Die. Für eine Kritik der utilitaristisch-konsequentialistischen moralischen Forderungen als unfair siehe L.B. Murphy, Moral Demands in Nonideal Theory.

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Einleitung 49 Elster, J., C. Offe und U.K. Preuß, Institutional Design in Post-Communist Societies. Rebuilding the Ship at Sea (zusammen mit F. Boenker, U. Goetting und F.W. Rueb), Cambridge University Press, 1998. Feinberg, J., 'The Expressive Function of Punishment", The Monist 49 (1965), wieder abgedruckt in Feinberg, Doing and Deserving. Essays in the Theory of Responsibility, Princeton University Press, 1970. Feinberg, J., "Collective Responsibility", Doing and Deserving. Essays in the Theory of Responsibility, Princeton University Press, 1970 (in einer kürzeren Fassung erstveröffentlicht in Journal of Philosophy 65 (1968), wieder abgedruckt in Collective Responsibility.. Five Decades of Debate in Tfieoretical and Applied Ethics, L. May und S. Hoffman (Hg.), Rowman & Littlefield, 1991). Fishkin, J.S., "Justice between Generations. Compensation, Identity, and Group Membership", Compensatory Justice (Nomos 33), J.W. Chapman (Hg.), New York University Press, 1991. Fishkin, J.S., "The Limits of Intergenerational Justice", Justice Between Age Groups and Generations, P. Laslett and J.S. Fishkin (Hg.), Yale UP, 1992. Gaus, G.F., "Does Compensation Restore Equality?", Compensatory Justice (Nomos 33), J.W. Chapman (Hg.), New York University Press, 1991. Goodin, R.E., "Compensation and Redistribution", Compensatory Justice (Nomos 33), J.W. Chapman (Hg.), New York University Press, 1991. Goodin, R.E., "Waitangi Tales", Australasian Journal of Philosophy 3 (2000). Greiff, P. de, 'Trial and Punishment. Pardon and Oblivion", Philosophy & Social Criticism 22 (1996). Günther, K., "Der strafrechtliche Schuldbegriff als Gegenstand einer Politik der Erinnerung in der Demokratie", Amnestie oder die Politik der Erinnerung, G. Smith und A. Margalit (Hg.), Suhrkamp, 1997. Habermas, J., "Über den moralischen Notstand in der Bundesrepublik" (1966), Philosophisch-Politische Profile, Suhrkamp, 1981. Habermas, J., "Eine Art Schadensabwicklung. Apologetische Tendenzen, Vom öffentlichen Gebrauch der Historie, Nachspiel", Eine Art Schadensabwicklung. Kleine Politische Schriften Bd. VI, Suhrkamp, 1987. Habermas, J., "Zwei Reden. Keine Normalisierung der Vergangenheit. Über den doppelten Boden des demokratischen Rechtsstaats", Eine Art Schadensabwicklung. Kleine Politische Schriften Bd. VI, Suhrkamp, 1987. Habermas, J., "Aus der Geschichte lernen?", Die Normalität einer Berliner Republik. Kleine Politische Schriften Bd. VIII, Suhrkamp, 1995. Habermas, J., "Aus welcher Geschichte lernen?", Die Normalität einer Berliner Republik. Kleine Politische Schriften Bd. VIII, Suhrkamp, 1995. Habermas, J., "Das Bedürfnis nach deutschen Kontinuitäten", Die Normalität einer Berliner Republik. Kleine Politische Schriften Bd. VIII, Suhrkamp, 1995. Habermas, J., "Doppelte Vergangenheit", Die Normalität einer Berliner Republik. Kleine Politische Schriften Bd. VIII, Suhrkamp, 1995. Hart, H.L.A., "Prolegomenon to the Principles of Punishment", Punishment and Responsibility. Essays in the Philosophy of Law, Clarendon Press, 1968. Heller, A., "The Limits to Natural Law and the Paradox of Evil", On Human Rights, S. Shute und S. Hurley (Hg.), Basic Books, 1993. Herz, J.H., "Conclusion". From Dictatorship to Democracy. Coping with the Legacies of Authoritarianism and Totalitarianism, Herz (Hg.), Greenwood, 1982.

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May, L., Sharing Responsibility, The University of Chicago Press, 1992. Meyer, L.H., 'Transnational Autonomy: Responding to Historical Injustice in the Case of the Saami and Roma Peoples", International Journal on Minority and Group Rights 8 (2001). Meyer, L.H., '"Gesetzen ihrer Ungerechtigkeit wegen die Geltung absprechen'. Gustav Radbruch und der Relativismus", R. Alexy, Meyer, S.L. Paulson, G. Sprenger (Hg.), Neukantianismus und Rechtsphilosophie, NOMOS, 2002. Meyer, L.H., "Intergenerational Justice", The Stanford Encyclopedia of Philosophy (Summer 2003 Edition), ed. E.N. Zalta, URL = http.//plato.stanford.edu/archives/ sum2003/entries/justice-intergeneraüonal. Meyer, L.H., "Past and Future. The Case for a Threshold Conception of Harm", Rights, Culture, and the Law, L.H. Meyer, S.L. Paulson und T.W. Pogge (Hg.), Oxford University Press, 2003. Mill, J.S., "Utilitarianism", Collected Works of John Stuart Mill, Vol. X: Essays on Ethics, Religion and Society, J.M. Robson (Hg.), University of Toronto Press, 1969. Minow, M., Between Vengeance and Forgiveness. Facing History after Genocide and Mass Violence, Beacon Press, 1998. Morreim, E.H., "The Concept of Harm Reconceived. A Different Look at Wrongful Life", Law and Philosophy 7 (1988). Munck, G.L., und C.S. Leff, "Modes of Transition and Democratization. South America and Eastern Europe in Comparative Perspective", Comparative Politics 29 (1997). Murphy, J.B., "Marxism and Retribution", Philosophy and Public Affairs 2 (1973). Murphy, L.B., Moral Demands in Nonideal Theory, Oxford University Press, 2000. Murphy, S.D., "Contemporary Practice of the United States Relating to International Law", American Journal of International Law 95 (2001). Nino, C.S., Radical Evil on Trial, Yale University Press, 1996. Nozick, R., Anarchy, State, and Utopia, Blackwell, 1974. O'Donnell, G., und P.C. Schmitter, Transitions from Authoritarian Rule. Tentative Conclusions about Uncertain Democracies, Johns Hopkins Press, 1986. Parfit, D., Reasons and Persons, Clarendon Press, 1984. Perry, S.R., "The Distributive Turn: Mischief, Misfortune and Tort Law", Analyzing Law. New Essays in Legal Theory, B. Bix (Hg.), Oxford University Press, 1998. Pfeiffer, R.S., "The Meaning and Justification of Collective Responsibility", Public Affairs Quarterly 2 (1988). Pogge, T.W., "On the Site of Distributive Justice. Reflections on Cohen and Murphy", Philosophy & Public Affairs 29 (2000). Pogge, T.W., "'Assisting' the Global Poor", D.K. Chatterjee (Hg.), The Ethics of Assistance. Morality and the Distant Needy, Cambridge University Press, i.E. 2003. Posner, T.R., "International Decision. Kadic v. Karadzic", American Journal of International Law 90 (1996). Prucha, F.P., American Indian Treaties. The History of a Political Anomaly, University of California Press, 1994. Przeworski, A., Democracy and the Market. Political and Economic Reforms in Eastern Europe and Latin America, Cambridge University Press, 1991. Rawls, J., A Theory of Justice, Oxford University Press, 1971. Reisman, M.W., "Legal Responses to Genocide and Other Massive Violations of Human Rights", Law and Contemporary Problems 59 (1997). Reynolds, H., Aboriginal Sovereignty, Allen und Unwin, 1996.

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Philosophical Perspectives

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Redressing Historic Injustice1

Jeremy Waldron

1. Each person, said Kant, and each group has the right to approach other peoples in the world with a view to "offering to engage in commerce".2 Though the privilege3 is terribly abused, still "such abuse cannot annul the right of citizens of the world to try to establish community with all [others] and, to this end, to visit all regions of the earth."4 Kant insists that this is not the same as a right of settlement in lands which are already inhabited. For that a genuine agreement is required, an agreement that does not allow one or other party unscrupulously to take advantage of the other so far as the acquisition of land is concerned.5 It is less clear what Kant thought should happen once violations of this principle have become established, i.e. once settlement and intermingling have taken place, and have become more or less permanent, even without the agreement of the original inhabitants. He had no doubt that such violations occurred - indeed he thought they were pervasive in contemporary European incursions into Africa and the Americas. And he had little patience with the justifications that were usually adduced for the colonial enFirst published in the University of Toronto Law Journal LII (2002), 135-160. Reprinted by permission of University of Toronto Press. This paper is an adaptation of a preliminary draft of the second ch. of a book entitled Cosmopolitan Right. The book takes as its starting point Immanuel Kant's rather fragmentary discussion under the same heading in The Metaphysics of Morals, trans, by M. Gregor, 158-9 (352-3 of Volume 6 of the Prussian Academy edition of Kant's works). Ch. 1 of the draft, entitled "Kant's Heading 'Cosmopolitan Right'" (which is available upon request), sets out some of the main features of Kant's cosmopolitanism. See also the discussion in J. Waldron, "What is Cosmopolitan?", 227. The book is not intended as an exercise in Kant exegesis. As I say, it takes Kant's discussion as a starting-point, but it proceeds from that starting point to continue doing (for our circumstances) the sort of thing that Kant took himself to be doing (for his circumstances), and to continue asking and if possible answering - the general questions that Kant asked. The aim is not to say what Kant did and why; but rather to approach certain problems (that might have been quite unfamiliar to Kant) - problems around multi-culturalism and identity politics - in a Kantian spirit and under the discipline of some general principles that Kant was rather insistent on. The most important such Kantian principle is the one I call "the Proximity Principle" - viz., that everyone has a natural duty to come to terms, in civil union, with those with whom he finds himself unavoidably side-by-side, whether he likes them or trusts them or shares anything else with them (common culture, common understandings) or not. I. Kant, The Metaphysics of Morals, 158 (352). It seems to be a privilege in Hohfeld's sense: i.e., no duty not to; but it doesn't correlate with any duty to respond in any particular way, except not to act as though the overture itself were wrongful. (See I. Kant, "Perpetual Peace", 106: "Hospitality ... means the right of a foreigner not to be treated with hostility because he has arrived on the land of another. The other can turn him away, if this can be done without destroying him, but as long as he behaves peaceably where he is, he cannot be treated with hostility." (358) I. Kant, The Metaphysics of Morals, 158 (353).

Ibid., 159(353).

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terprise: bringing civilization to the natives,6 or Lockean arguments about the superiority of European modes of land use.7 He imagines someone asking whether the mere fact of one's arrival in a country can justify setting up a colony, as a sort of application of the Proximity Principle8 or as a way of fulfilling what he said in his cosmopolitan musings in Perpetual Peace about the importance of mankind spreading out over all the earth:9 Lastly, it can still be asked whether, when neither nature nor chance, but just our own will, brings us into the neighborhood of a people that holds out no prospect of a civil union with it, we should not be authorized to found colonies, by force if need be, in order to establish a civil union with them and bring these men (savages) into a rightful condition (as with the American Indians, the Hottentots, and the inhabitants of New Holland; or (which is not much better) to found colonies by fraudulent purchase of their land, and so become owners of their land, making use of our superiority without regard to their first possession. Should we not be authorized to do this, especially since nature itself (which abhors a vacuum) seems to demand it, and great expanses of land in other parts of the world, which are now splendidly populated, would have otherwise remained uninhabited by civilized people...?10 Kant's response is unequivocal: this would be an abuse of the Proximity Principle. "It is easy", he says, "to see through this veil of injustice, ... which would sanction any

means to good ends. Such a way of acquiring land is, therefore, to be repudiated."1' Still, there is a problem. Kant's response there turns crucially on the voluntary nature of the would-be colonists' presence - "when neither nature nor chance, but just our own will, brings us into the neighborhood of a people." That applies clearly enough to the first generation of settlers, and maybe even the second. But today, we are talking about people who are fourth - or fifth generation descendants of the original voluntary colonists, and for these people - us, here and now - there is little choice in the matter. This is where we are settled - this is where we are - now we can say in truth unavoidably side-by-side. And that remains true, in spite of the violations committed by our ancestors, and in spite of the transparent illegitimacy of their justifications. What are we to say about this situation? All Kant says in the Doctrine of Right is that the stain of historic injustice cannot be erased from such settlement, by our present good intentions. He is right, and as we shall see (towards the end of this chapter) this is something that we must pay attention to. But it does not help very much in figuring out what now is to be done - as a practical matter - so far as the rectification of the injustice is concerned. My hunch, however, - and now, in this chapter, the argument becomes constructive, not just interpretive - is that Kant held the view of common sense here. If a new settlement - originally wrong and unlawful under principles of cosmopolitan right - becomes 6 7 8

9 10 11

Idem. Ibid., 89 (268f). See J. Locke, Two Treatises, II, sect. 41; see also J. Tully, "Rediscovering America". I. Kant, Metaphysics of Morals, 12 If: "When you cannot avoid living side-by-side with all others, you ought to leave the state of nature and proceed with them into a rightful condition, that is, a condition of distributive justice" or (in Hastie's translation) "In the relation of unavoidable coexistence with others, thou shalt pass from the state of nature into a juridical union constituted under the condition of a distributive justice." See I. Kant, "Perpetual Peace", 110 (362-5); I deal with this in detail in ch. 1 of this book, and also in J. Waldron, "What is Cosmopolitan?", 236f. I. Kant, Metaphysics of Morals, 86f (266). Ibid., 87 (266).

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established over several generations, then the descendants of the original settlers are likely to have nowhere to return to. If that is the case, then - without denying the historical fact of the injustice - they and the descendants of those whom their ancestors invaded and expropriated now have nothing to do but come to terms with one another and establish a fair basis for sharing the lands and resources that surround them. 2.

Certainly, that is what is suggested by the Proximity Principle - that is, by the general tenor of Kant's observation that people have a natural duty to enter into political society with those with whom they find themselves in a condition of unavoidable co-existence. True, if the coexistence is the product of my choice and I have the option of withdrawing, then, as we have seen, the Proximity Principle does not apply: I should not be there in the first place, and I should turn round and leave. But if that option has evaporated over the centuries, then our coexistence must be treated as a brute fact. Even if the explanation of our being side-by-side now is the existence of injustice in the past, still we have a duty to bring our present relationship under the auspices of right and legality, and that means we must form and sustain a political society among us - all of us - whether we like one another, or the circumstances under which we came into one another's company or not. It's worth reiterating, I think, the distinctive feature of Kant's Proximity Principle. Though Kant used a contractarian model to illuminate the main features of his political theory, his approach to basis of political cooperation did not have the voluntarist character of certain historical contract accounts. A theorist like John Locke might argue that people have a choice whether to enter into political community with others or not: The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature.13 But for Kant, the implication - that it would be morally permissible to remain outside the locally constituted political community - was quite unacceptable. And that was not because of any jiggery-pokery with tacit consent. It was because entering into political society with those with whom you were otherwise likely to be in conflict - was a matter of natural duty. Indeed it is something that a person might legitimately be forced to do.14 Kant was well aware that the compulsory character of the move into civil society distinguished his version of contractarianism from that of others (like Locke).15 Qua contract, he says, the contract establishing civil society "is of an exceptional nature": In all social contracts, we find a union of many individuals for some common end which 12

13 14 15

In this regard Kant's approach is similar to John Rawls's early political theory: Rawls used a contractarian device to illuminate the content of justice; but the duty to be just was understood by him as a categorical natural duty, not as a contractually-incurred obligation: see J. Rawls, Theory of Justice, 114ff. J. Locke, Two Treatises, II, sect. 95. I. Kant, Metaphysics of Morals, 122 (307). This paragraph and the next are adapted from J. Waldron, "Kant's Legal Positivism", 1562ff. (See also J. Waldron, The Dignity of Legislation, ch. 3.)

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Jeremy Waldron they all share. But a union as an end in itself which they all ought to share and which is thus an absolute and primary duty in all external relationships whatsoever among human beings (who cannot avoid mutually influencing one another), is only found in a society in so far as it constitutes a civil state, i.e. a commonwealth.16

One can imagine a Lockean individual refusing to join the social contract because he found the company of his prospective fellow-citizens uncongenial. He dislikes them; their ancestors were mean to his ancestors; they don't share common understandings or a common religion or a common culture or whatever. And for all these reasons he elects to take his chances in the state of nature. For Kant however there is something wrong in this posture, if it is the case that he is going to have to interact with the others (with whom he is refusing to contract). The very reasons which make the others uncongenial to him are likely also to be reasons which put their views about how these interactions should be handled at odds with the outsider's understanding of how these interactions should be handled. And it's no good appealing to objective morality or natural law or the correct theory of justice to handle this problem. The problem is one of disagreement and conflict (about what objective morality or justice or natural law require): [H]owever well disposed and law-abiding men might be, ... individual men ... can never be secure against violence from one another, since each has [his] own right to do what seems right and good to [him] and not to be dependent upon another's opinion about this. So, unless [he] wants to renounce any concepts of Right, the first thing [he] has to resolve upon is the principle that [he] must leave the state of nature, in which each follows [their] own judgment, unite [himjself with all others (with which [he] cannot avoid interacting), subject [him]self to a public lawful external coercion, and so enter into a condition in which what is to be recognized as belonging to [him] is determined by law.17 The alternative is war and violence, justified on each side by contrary claims of justice, which for Kant is a moral obscenity.18 So, Kant suggests, if there are issues of resource use that need to be resolved among us - and there almost always are when we are unavoidably side-by-side - then we must come to terms with one another and resolve them in a common framework, that will then stand authoritatively over us. It is not good enough for each to act towards the others as his conscience or his sense of justice dictates. We need to construct a common sense of justice and embody it in our laws: we need, in other words, to set up a single system of property, even despite (indeed, precisely because of) our disagreements over what an appropriate system of property would be. I find this position attractive. In recent communitarian political philosophy, there has been a tendency to insist that a well-ordered society should be thought of as something constructed among those who share certain fundamental understandings and beliefs.1 At a minimum, some have suggested that mutual trust should be a condition precedent to the formation of any political community; and of course it is arguable that historic injustice can undermine the basis for trust. By contrast, the great virtue of Immanuel Kant's work in political philosophy (as also of the work of Thomas Hobbes) is that he begins from the opposite assumption. Kant assumes that we are always likely to find ourselves, in the first instance, alongside others we don't trust, others with whom we 16 17 18 19

I. Kant, "Theory and Practice", 73 (8:289). I. Kant, The Metaphysics of Morals, 124 (6:312). For the explanation, see J. Waldron, "Kant's Legal Positivism", 1557-62 and The Dignity of Legislation, 52-57. See, e.g., M. Walzer, Spheres of Justice.

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share little in the way of culture, mores or religion, others who disagree with us about justice. Neverthless if we are to have dealings with them (which includes such things as upholding putative property rights - or any rights - against them) we must enter into political community, where mine and thine (or even ours and theirs) can be determined as a matter of positive law. The presence or absence of trust, or shared culture, or shared understandings, are simply irrelevant to that moral necessity. For my money, that approach seems both more realistic in the mixed-up circumstances of the modern world, and less dangerous than the opposite, communitarian view. It is less dangerous, certainly, when one thinks what is likely to be done - what has in fact been done - to turn the communitarian assumption into a self-fulfilling prophecy.20 3.

The argument of section 2 takes us only so far. Kant's Proximity Principle gives us arguments against things like separatism, ethnic cleansing, and the sort of fastidious abhorrence of one another (on, say, ethnic or historical grounds) that might impede political cooperation. Those strategies are wrong in themselves; and a fortiori they cannot be justified by the historical fact of injustice in past dealings between peoples. But it still leaves open the question of what justice requires in relation to the historic injustice to which we are stipulating. That we are required to come to terms with each other, and set up a system of property that takes account of all our claims, is quite compatible with an insistence that such property system should attempt to respond to the injustice and iniquity of the events that brought us into each other's proximity in this way. That we are required to come to terms with one another in political community, under the auspices of positive law, doesn't mean that we are required to let bygones be bygones so far as issues of compensation or the rectification of injustice are concerned. Arguments can be imagined, of course, in this context for wiping the slate clean, or for treating the grievances of persons or peoples as mere historic sentiments, irrelevant to issues of justice. The best known argument of this sort is that of David Hume in Book III of the Treatise of Human Nature. On the Humean model, we start from an assumption of something like Hobbesian conflict driven by limited altruism and moderate scarcity. People grab things and use them; they argue and fight over them. Over time, the holdings determined in this way are going to be largely arbitrary. Nevertheless if any sort of stable pattern of de facto possession emerges, then something like a peace dividend may be available. It may be possible for everyone to gain, both in terms of the diminution of conflict and in terms of the prospects for market exchange, by an agreement not to fight any more over possessions. I agree to respect what you have managed to hang on to, and you agree to respect what I have managed to hang on to: "By this means, every one knows what he may safely possess".21 Such an agreement, if it lasts, may amount over time to a ratification of de facto holdings as de jure property. According to Hume we should not concern ourselves, he argues, with the distributive features of the possessory regime that emerges from the era of conflict. Our aim should be to ratify any distribution that seems salient - that is, any distribution support for which 20 21

This last paragraph is adapted from J. Waldron, "Cultural Identity and Civic Responsibility". Hume, Treatise, Bk. Ill, Part II, sect, ii, 489. For a modern version of the Humean approach, see J.M. Buchanan, The Limits of Liberty, esp. chs. 1-4. The account (and the criticism) of the Humean approach in the text is adapted from J. Waldron, "The Advantages and Difficulties of the Humean Theory of Property".

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promises to move us away from fighting about who uses what, and towards the benefits promised by a system of positive law and an orderly marketplace. Indeed, Hume says it is kind of a pragmatic self-contradiction to complain of the distributive injustice of the system that emerges or of the injustice by which resources were seized by various people during the era of conflict. Issues of justice, he insists, are logically posterior to settlement on property rights. If justice is a matter of "To each his own", then no question of it can be raised until some system of "mine" and "thine" is agreed. After this convention, concerning abstinence from the possessions of others, is enter'd into, and everyone has acquir'd a stability in his possessions, there immediately arise the ideas of justice and injustice; as also those of property, right, and obligation. The latter are altogether unintelligible without first understanding the former.22 The claim is that those who lost control of resources in the era of unregulated conflict can hardly complain on grounds of justice without kicking away the very foundation of the intelligibility of justice-discourse. Justice discourse does not become possible, Hume says, until a settlement of resources has been achieved on some basis other than justice. And so, he argues, we can't then turn round and use the principles of justice established on that basis to criticize the events that took place priori (and as a way of establishing) the foundation. But the Humean argument is fallacious. Even if we accept his point about the logical priority of the establishment of a distribution to the emergence of sentiments of justice, it does not follow that those sentiments cannot then be intelligibly applied with regard to events temporally prior to the establishment of the distribution. Of course, we cannot hope now to regulate those events. But we do have control over the ramifications that those events are taken to have in our present day system of property rights, and those ramifications can intelligibly be informed by the sense of justice established after the events in question took place. In other words, suppose our sentiments of justice date from a settlement in (say) 1840. Then obviously we cannot use those sentiments to regulate events that took place prior to that in (say) 1825. But we can develop post-1840 principles which make what is to happen now a function of what we can find out about what took place in 1825. And there is nothing self-contradictory or unintelligible about deploying and applying such a principle in (say) 2001.23 22 23

Hume, Treatise, 490f. Of course this assumes that as part of the 1840 settlement, people develop procedural (historical) principles of justice. Why would they do this, on the Humean account? Well, suppose a Humean convention has been set up in 1840, so that people recognize and respect one another's holdings. What happens if new resources are discovered or come into existence after that date? Are we then to go through the same process all over again - fighting and grabbing until a pattern of retention emerges? Hume says "No" ... tho' the rule of the assignment of property to the present possessor be ... useful, yet its utility extends not beyond the first formation of society; nor would anything be more pernicious, than the constant observance of it; by which restitution wou'd be excluded and every injustice would be authoriz'd and rewarded. We must, therefore, seek for some other circumstance, that may give rise to property after society is once establish'd.... (Treatise, Bk. Ill, Part II, sect, iii, 505.) He argues for the establishment historical/procedural principle - the Principle of First Occupancy as a post-convention principle of acquisition (on several grounds including the disutility of leaving any issue of property rights unsettled while a new resource passes through several hands). But if this principle gets established in popular consciousness as the appropriate standard to use to judge post-1840 acquisitions, then it is quite imaginable that people are tempted in time to apply it also to what they know about the origin of pre-1840 holdings. And what they will find is an incongruity, since if anything the principle on which pre-convention holdings were recognized was a principle of

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So judgements about past injustice, and demands for compensation for past injustice, and a structuring of the present system of property so that it takes account of the dire and unfair effects of past injustice - none of this can be ruled out on the Humean approach. Our Kantian responsibility to set up a system of justice is not necessarily a requirement that we do so in a "ground-zero" sort of way. If there are difficulties with the idea of present-day reparations for historic injustice - and I believe there are - they must have a different sort of basis. 4. In an article published some time ago, I drew attention to some of the difficulties that historic rectification would involve. 4 Suppose, first, that it is our aim to do justice to the legitimate grievances and claims of individuals25 in this context. If the individuals whose entitlements were violated were still alive, then we could deal with the matter by way of direct restitution and compensation. But of course they are not. Many generations have passed since the injustice complained of took place. The best hope of reparation is to make some sort of adjustment in the present circumstances of those who are descended from the persons who suffered injustice (and also anyone else whose present position has been affected by these past events). It seems, then, the task of reparation is to transform the present so that it matches as closely as possibly the way things would be now if the injustice had not occurred. This is the approach urged by Robert Nozick in his account of the role played by a principle of rectification in a theory of historic entitlement: This principle uses historical information about previous situations and injustices done in them (as defined by thefirsttwo principles of justice [justice in acquisition and justice in transfer]...), and information about the actual course of events that flowed from these injustices, until the present, and it yields a description (or descriptions) of holdings in the society. The principle of rectification presumably will make use of its best estimate of subjunctive information about what would have occurred (or a probability distribution over what might have occurred, using the expected value) if the injustice had not taken place. If the actual description of holdings turns out to be one of the descriptions yielded

24 25

Last Occupancy, relative to 1840, not First Occupancy. No matter who first held or occupied or made or cultivated some resource, no matter how many times it was subsequently lost or seized or grabbed, the person who got the benefit of the rights established through the convention was the person left holding it that moment. People are likely therefore to criticize that process, much as we find critics bringing (say) quasi-Lockean standards to bear on issues of aboriginal rights. Now if those governed by the convention deploy their new standards of justice in this way, Hume can hardly argue that they are making a logical mistake. Even though they could no< have had such standards to apply to any acquisition unless pre-convention holdings had been ratified, still, once the deployment of such standards has gotten underway, there is nothing contradictory about turning them on the pre-convention holdings themselves and calling the whole basis of subsequent transactions into question. Thus, showing (as Hume does) that recognition of existing holdings is a precondition for the deployment of any principle of justice is not, in itself, a way of showing that the recognized holdings and the market outcomes that flow from them cannot be scrutinized by such a principle. See J. Waldron, "Superseding Historic Injustice", 4-28. An earlier version of this paper was published as "Historic Injustice: Its Remembrance and Supersession". Bear with me on this. We move to considering injustice done to groups in a moment (towards the end of this section and in the sections that follow).

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by the principle, then one of the descriptions yielded must be realized.26 The difficulties in this task are those of all counterfactual speculation. How can we know what would have happened if some event which in fact did occur had not taken place? The difficulty is particularly acute when we are tracing a counterfactual sequence of events that is not understood as a deterministic sequence. The sequence of events that interests us is a sequence that involves choice. When we ask 'What would have happened if this injustice, had not occurred?' we are imagining a train of events involving human agents - the bearers of entitlements - and their exercise of freedom. For example, suppose (counterfactually) a certain block of land in New Zealand had not been wrongfully appropriated from some Maori group in 1865. Then we must ask ourselves, 'What would the rightful owners of that land have done with it, if the wrongful appropriation had not taken place?' To ask that is to ask in part about how they would have exercised their freedom if they had a real choice. Would they have held on to the land, and passed it on to their children and grand-children? Or would they have sold it - but this time for a fair price - in response to the first honest offer they were given? And, if they had, then what would the purchaser have done with it? Sold it again? Passed it on to his children? Lost it in a poker game? Part of our difficulty in answering these questions is that it is not at all clear what we are doing when we try to make guesses about the way in which free will would have been exercised. I don't mean that the exercise of choice is necessarily unpredictable. We make predictions all the time about how people will exercise their freedom. But it is not clear why our best guess or prediction on such a matter should have moral authority in the sort of speculations we are considering. 7 Let me repeat: this is not an epistemic difficulty. It is not that there is some fact of the matter (what A would have chosen to do with his land if things had been different) and our difficulty lies in discovering what it is. The thing about freedom is that there is no fact of the matter anywhere - knowable or unknowable - until the choice has been made. Worse still, particularly in the contexts with which we are concerned, the events of justice and injustice may make a considerable difference to who exists at a later time. We cannot simply hold the dramatis personae constant in our speculations. Children may be conceived and born, and leave descendants, who would not have existed if the injustice had not occurred. Short of putting them to death for their repugnancy to our counterfactuals, the Nozickian approach offers no guidance at all as to how their claims are to be dealt with. Does it make any difference to this critique that the violated entitlements in fact belonged to a group (e.g. a tribe) rather than a natural (and mortal) individual? Often the injustice complained of in these cases is that some renegade member of the tribe has 26 27

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R. Nozick, Anarchy, State and Utopia, 152f. Suppose I am trying to predict how my uncle will dispose of his estate. My best guess, based on all the evidence, is that since he has no children he will leave it to me, his favorite nephew. So I make that prediction, communicate it to my friends ... and we sit down to watch what happens. In fact, my uncle surprises us by leaving his whole estate whimsically to an obscure home for stray dogs that he has only just heard of. My prediction is confounded. Even though it was a reasonable prediction the best available - it is my uncle's whimsical decision that carries the day. My reasonable guess has no normative authority whatever with regard to the disposition of his estate. Now if this is true of decision-making in the real world, then I think it plays havoc with the idea that, normatively, the appropriate thing to do in the rectification of injustice is to make rational and informed guesses about how people would have exercised their freedom. For if such guesses carry no moral weight in the real world, why should any moral weight be associated with their use in counterfactual speculation?

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disposed of tribal property as though it were his own private property. If a piece of land is tribaJly owned and its alienation prohibited by tribal custom, is there any point in asking counterfactually how it would have been disposed of if the injustice in this individual's dealing with it had not occurred? Some will say: surely we can assume that, if the land had not been wrongfully disposed of, it would have remained tribal property; so there should be no difficulty in showing that the counterfactual approach requires its present restoration to the tribe. Unfortunately, things are more complicated than that. The members of the tribe might have decided, in the exercise of their powers as communal owners, to sell some of the land; or the members of the tribe might have decided, in the exercise of their sovereign powers over their own laws and customs, to abrogate the system of communal property. Both possibilities need to be taken into account in any realistic estimation of what would have happened if the injustice had not taken place. The second possibility is particularly important. All societies change their customs and laws, including their property laws, from time to time, and there is every reason to suppose that such change might be a probable and legitimate response to changing conditions on the part of such flexible and resourceful polities as Maori tribes. If we are honestly inquiring into what would have happened in a just world, we have to take at least the possibility of such adaptive exercises of sovereignty into account. More abstractly, the problem of the role of contingency and choice in a counterfactual account does not evaporate when we shift the focus from individuals to groups. Groups can act freely too; and there is the same problem of saying how they would have exercised that freedom, if certain other events had not taken place. 5. Individual men and women are mortal; but groups are not, or not necessarily, certainly not in the same way. I said at the beginning of section 4 that if the persons whose entitlements were violated were still alive, then we could deal with the injustice by way of direct restitution and compensation. Now in fact many of the legal persons whose entitlements were violated have survived: in New Zealand the historic injustices complained of were done to tribes and other groups - iwi and hapu - as well as to individual men and women, and the iwi and the hapu are still there, even if their individual membership has changed. This ought to make a great deal of difference. For if the person whose rights were violated remains in being, then the first priority, particularly in the case of a property right, is to put an end to the violation by restoring the property to its rightful owner. So far as that imperative is concerned, counterfactual speculation about what the owner would have done with the property in the meantime is quite irrelevant. Suppose someone stole my car yesterday. That is an unjust act that took place at a certain place and at a certain time: at 9.30 a.m. on September 14, my car was stolen from the parking lot. Clearly anyone committed to the prevention of injustice should have tried to stop the theft taking place. But once the car has been driven nefariously out of the parking lot, the matter does not end there. For now there is a continuing injustice: I lack possession of an automobile to which I am entitled, and the thief possesses an automobile to which he is not entitled. Taking the car away from the thief and returning it to me, the rightful owner, is not a way of compensating me for an injustice that took place in the past, or adjusting the present to fit some counterfactual hypothesis; it is

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simply a way of remitting an injustice that is on-going into the present. Phrases like 'Let bygones be bygones' are inappropriate here. The loss of my car is not a bygone: it is a continuing state of affairs. The implications of this example are clear for the historic cases we are considering. Instead of regarding the expropriation of aboriginal lands as an isolated act of injustice that took place at a certain time now relegated firmly to the past, we may think of it as a persisting injustice. The injustice persists and it is perpetuated by the legal system as long as the land that was expropriated is not returned to those from whom it was taken. On this model, the rectification of injustice is a much simpler matter than the approach we discussed in the previous section. We do not have to engage in any counterfactual speculation. We simply give the property back to the person or group from whom it was taken, and thus put an end to what would otherwise be its continued expropriation. This is a very important difference of perspective. But the move works only if two conditions are met. First, we must be sure that the person who makes the claim in the present really is the same person as the person who suffered the original injustice. Nominal identity is not sufficient; we need an assurance of actual identity in the relevant sense. Secondly, we must be sure that the entitlement (of the surviving person or group) that was originally violated all those years ago is an entitlement that survives into the present. The approach we are considering depends on the claim that the right that was violated when white settlers first seized the land can be identified as a right that is still being violated today by settlers' successors in title. Their possession of the land today is said to be as wrongful vis-ä-vis the present tribal owners as the original expropriation. Can this view be justified?29 Obviously the two conditions are connected. But they are not the same. I will deal with them in the two sections that follow. 6.

For example, suppose an injustice is done to a certain family, Gm, at a time, m, when families have comprehensive responsibility for the social and economic well-being of their members: there is no social "safety-net" beyond that, no public education etc. The injustice at m deprives Gm of most of its wealth. As time passes - and that specific injustice remains unrectified - the social structure changes, and now the wider community or the state takes on the socio-economic responsibilities that were previously vested in the family. But G survives - at least nominally - as an enduring entity that outlasts its individual members: the family at time m, i.e. Gm, has survived through to time n, many generations later. It now presents itself as Gn. And Gn demands reparation of the original injustice. Are we so sure, in light of the changed social structure, that Gn is identical in the relevant sense to Gm? They are certainly identical in some sense, but can we be sure that the sense in which Gn and Gm are identical is a sense that is relevant for the purposes of restitution and historic reparation?30 Here's an example of the difference it might make. The violation against Gm was a very serious one. But the best account of that seriousness makes reference to Gm's responsibilities for the welfare of its members, which are responsibilities Gn does not have. G has endured as Gn, but Gn does not play the role that Gm played. Can we say that the outstanding violation - now conceived as a violation against Gn - is as serious now as it was when it took place? Or suppose that people organize themselves into groups at time n on quite a different basis than the basis on which they organized themselves into groups at the time, m, when the injustice was committed. The original group survives, in some sense, but people configure themselves differently in relation to groups. Take a concrete example the issue posed in a recent New Zealand case about Maori fishing rights.31 The Court of Appeal had to consider whether schemes to settle Maori grievances about the expropriation of fishing rights in the nineteenth century should be focused solely on traditional tribes or iwi or whether beneficiaries might also include more recently constituted Urban Maori Authorities. Justice Thomas provides some background: With the advent of colonization after 1840, the tribes were systematically dispossessed of their lands by purchase, confiscation or legal artifices. From the 1860s Maori fishing rights were under threat, and Maori struggled to retain fishing rights independent of land. ... Gradually the rights were all but fully lost. A burgeoning Maori population on an inadequate land base meant that life in tribal polities was no longer tenable. Urban migration followed, especially in the post-war years, actively encouraged by the urban relocation programme of the government of the day. ... Maori underwent the fastest urbanization of any indigenous peoples in the world. In 1956, 76 per cent of Maori were considered rural; by 1976, 78 per cent had become urban. ... The reality for Maori today is that most no longer live in compact kin-based tribal collectives on a defined land base. Their people live in scattered whanau units both within and away from the old tribal boundaries. ... A number of Maori, 112,566 to be precise, indicated in the last census taken that they did not know the name of their iwi, while another 40,917 neither specified nor identified their iwi. Twenty-five per cent of Maori either do not know their iwi or for some reason or other choose not to affiliate with it.... But Maori are a communal people. The ... transformation of tribalism ... led to the emergence of quasi-tribes in the form of urban

I hope somebody has got a little bit further along than I have in their thinking about what it is for a group (such as a tribe) to survive over (say) four or five generations, in the context of claims about injustice. My hunch is that survival in the relevant sense may not be the same as the notional inheritance of a group name and structure. It is not enough to point to some present-day entity or group that may be regarded for some purposes as identical to an entity or group whose rights were violated in the past. We must be sure that they are identical in a sense that is relevant and appropriate so far as the issue of justice - and the specific approach intimated in section 5 - are concerned.

28

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These is a corresponding question also about the entity that committed the injustice. But we do seem to be dealing, in the New Zealand case, with an entity - the Crown, or the New Zealand government - that is committed to taking responsibility for crimes committed by and in the name of the British crown, or the imperial authorities, in the period after 1840. So there would seem to be less of a problem at that end. By saying "we must be sure..." I don't mean to suggest anything in particular about the burden of proof. This is political philosophy and claims about burden of proof are out-of-place given the leisure that philosophers have and the inconsequentiality of their conclusions. But if there were a burden of proof issue I guess it would be governed by at least two considerations: (i) those proposing a massive disturbance in the status quo have some sort of burden of proof to show that the status quo is so tainted by persisting injustice as to have no special claim on our forbearance; and (ii) those who acknowledge or ought to acknowledge that historic injustice did actually take place have some sort of burden of proof to advance reason why it should not now be rectified. I have no idea how to balance these considerations against each other.

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30

31

To flesh out the algebra: take the oldest surviving English aristocratic dynasty that you can think of, and consider the earliest unrectfied injustice done to that family that anyone can remember. So - the value of F is the Delacey's, for example, and the values of m and n, respectively, are 1086 and 2000, respectively. Suppose the 1086 injustice deprived the first Baron Delacey of his place at the King's Great Council. Are we sure that the late twentieth century Delacey family survives as the entity which still suffers this deprivation? E.g., Te Waka Hi Ika o TeArawa v. Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285.

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Jeremy Waldron Redressing Historic Injustice Maori organizations. A mix of tribal, religious and secular groups were formed for the purpose of providing material and spiritual support for Maori and the preservation of Maori culture. These voluntary groups perform the functions once carried out by the tribe. Urban marae developed. ... Many of these groups became delivery and service mechanisms for the government. To the forefront in this transformation have been the Urban Maori Authorities (UMA).32

However, the political process whereby redress for historic injustice is sought under the auspices of the Treaty of Waitangi (1840) has been dominated, on the Maori side, by representatives of the traditional iwi, for they through their chiefs were of course the signatories to the Treaty. The settlement reached in regard to fisheries provided, in effect, that the assets held by the Treaty of Waitangi Fisheries Commission be distributed to traditional iwi, or other descent-based groups. A number of UMA challenged this settlement, on the grounds that it would not benefit a very large number of urban Maori no longer affiliated with iwi. The response by counsel, Joseph Williams, for the Commission was that since iwi had had the fishing rights wrongfully taken away from them, it is to iwi that they should be returned: UMA had not suffered comparable injustice, for they did not exist at the time the expropriations took place, and so they were not entitled to any redress. That argument prevailed with the majority in the Court of Appeal (insofar as they went beyond simple statutory interpretation). The settlement was of the historical grievances of a tribal people. It ought to be implemented in a manner consistent with that fact. With all due respect to UMA, who are formed on the basis of kaupapa not whakapapa, they cannot fulfil such a role. In saying this we do not intend to disparage UMA. They are worthy organizations of great value to Maoridom and to the wider New Zealand community. They are, and should be, held in high regard. In their short histories they have accomplished much good and their role in the delivery of benefits emanating from central and local government is vital and increasing. But they cannot legitimately claim to be tribes or the successors of tribes.33 But it seems to me the dissenting Appeal Court judges had a point when they remarked that the argument confuses the benefit of collective rights of individual Maori with the benefit to be conferred pursuant to the settlement. ... Mr. Williams asserts that the benefit of the settlement should be directed to those who have lost their rights; that is, on his argument, the traditional tribes. This, he argued, is only logical. But the settlement is for the benefit of all Maori, not just the traditional tribes. In whatever manner distribution is effected, the benefit of the settlement is to go to all Maori, not just the members affiliated with the tribes who claim to have been the holders of the fishing rights which have been extinguished.34 In other words, there is a sort of unhealthy formalism about an argument that moves from the sociological proposition that "[t]he settlement was of the historical grievances of a tribal people" to the conclusion that the particular tribal entities that suffered the violation should be the sole beneficiary of the settlement, notwithstanding the very different and attenuated position that those entities presently occupy in modern Maori society. And I think this formalism is the occupational hazard of those who simply cast around to find a way - any way will do - of sustaining the business of historic reparations without regard to the human circumstances of those they claim to be benefitting. 32 33 34

Ibid., 338f (per Thomas J., dissenting). Ibid., 377f (per Blanchard J.). Ibid., 341 (per Thomas J., dissenting).

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Even if we were sure that we had the right entity - the right right-bearer - we would need additional assurance that the right in question had survived, if we were to pursue the approach intimated in section 5. (Remember the argument there was that the counterfactual conundrums of section 4 are irrelevant: we simply give the property rights back to the enduring group from whom they were taken, and thus put a stop to what would otherwise be on-going injustice.) So now we have to ask whether the rights remain stable during the prodigious lifetime of the group. On the face of it, it seems implausible that they would remain stable. After all, there have been massive changes in the last century or two, in a country like New Zealand, whose history we acknowledge has ben marred by injustice and expropriation. The most striking change is in population: there is now a huge settled population - Maori, pakeha and mixed-ancestry - larger by a factor of about twenty than the population in (say) 1840. There is no question of the descendants of European settlers returning en masse to Europe or anywhere else (although concern has been expressed from time to time about the number who do!) And so the land and other resources of the country are now used on a basis that is staggeringly different from the basis on which they were used at the time the violations took place. This, I think, has to make a difference to how we think about rights - even violated rights - which are alleged to have survived from that earlier era into the present. Consider the following hypothetical example.35 It involves two alternative scenarios. (1) On a large bounded plain, a number of groups appropriate water holes, in conditions where it is known that there are enough water holes for each group. So long as those conditions obtain, it seems reasonable for the members of a given group, G, to use the water hole they have appropriated (Hg) without asking permission of other groups with whom they share the plain; and it may even seem reasonable for them to exclude members of other groups from the casual use of Hg, saying to them, "You have your own water hole. Go off and use that, and leave ours alone." But suppose one year there is an ecological disaster, and all the waterholes dry up except the one that the members of G are using. Then in these changed circumstances, notwithstanding the legitimacy of their original appropriation, it is surely no longer permissible for G to exclude others from Hg. Indeed it may no longer be in order for members of G to casually use Hg as "their own" waterhole in the way they did before. In the new circumstances, it may be incumbent on them to draw up a rationing scheme that allows for the needs of everyone in the territory to be satisfied from this one resource. Changing circumstances can have an effect on ownership rights notwithstanding the legitimacy of the original appropriation. (2) Suppose as before that in circumstances of plenty various groups on the savannah are legitimately in possession of their respective waterholes. One day, motivated purely by greed, members of group F descend on the waterhole, Hg, used and possessed by group G and insist on sharing that with them. (What's more they do not allow reciprocity; they do not allow members of G to share the water hole Hf that was legitimately in possession of the F group.) That is an injustice. But then, as in story (1), circumstances change, and all the water holes of the territory dry up except the one that originally belonged to G. The members of group F are already sharing that Hg on the basis of their 35

The example is drawn from J. Waldron, "Superseding Historic Injustice". It was suggested to me originally by the arguments in D. Lyons, "The New Indian Claims and Original Rights to Land", 371.

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earlier incursion. But now that circumstances have changed, they are entitled to share that water hole. Their use of Hg no longer counts as an injustice; it is now in fact part of what justice now requires. The initial injustice by F against G has been superseded by circumstances. I do not think this possibility - of the supersession of historic injustice - can be denied, except at the cost of making one's theory of historical entitlement utterly impervious to variations in the circumstances in which holdings are acquired and withheld from others. If circumstances make a difference to what counts as a just acquisition, then they must make a difference also to what counts as an unjust incursion. And if they make a difference to that, then in principle we must concede that a change in circumstances can affect whether a particular continuation of adverse possession remains an injustice or not. So everything depends on whether circumstances make a difference. I think it is very difficult to resist the conclusion that entitlements are sensitive to circumstances. Certainly, the level of our concern for various human predicaments is sensitive to the circumstances that constitute those predicaments. One's concern about poverty, for example, varies depending on the extent of the opportunities available to the poor: to be poor but to have some opportunity for amelioration is to be in a better predicament than to be poor with no opportunities at all. Similarly, our concern for the homeless may vary with the season of the year or the climate of the state in which they live; and global warming may make their predicament a little bit less of a concern than it was. Moreover, these are not just fluctuations in subjective response: they are circumstantially sensitive variations in what we would take to be the appropriate level of concern. Once this is conceded then the argument for the circumstantial variability of property rights is straightforward. The (appropriate) level of our concern about the poor and the needy is directly related to the burden of justification that must be shouldered by those who defend property rights.36 I will argue the point for an individual owner, though I think it is petty clear it applies to collective or group owners as well. If an individual makes a claim to the exclusive use or possession of some resource, then the burden of defending and sustaining that individual's claim as a moral proposition varies in proportion to the level of concern that one has about the plight of other persons or groups who will have to be excluded from the resource if her claim is recognized. (The only theory of property entitlement that would be totally immune to variations in background circumstances would be one that did not accept any burden of justification at all in relation to such concerns.) We can express this claim about sensitivity to circumstances as follows. In the case of almost every putative entitlement, it is possible to imagine a pair of different circumstances, Ci and C2, such that the entitlement can only barely be justified in Ci and cannot be justified at all in C2. The shift from Ci to C2 represents a tipping point so far as the justification of the entitlement is concerned. Thus a scale of appropriation that might be appropriate in a plentiful environment with a small population may be quite inappropriate in the same environment with a large population, or with the same population once natural resources have become depleted. In a plentiful environment with a small population, an individual appropriation of land makes no-one worse off. As John Locke put it: He that leaves as much as another can make use of, does as good as take nothing at all. No Body could think himself injur'd by the drinking of another Man, though he took a good Draught, who had a whole River of the same Water left him to quench his thirst. 36

For an argument to this effect, see J. Waldron, "Property, Justification and Need", 185-215.

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And the Case of Land and Water, where there is enough of both, is perfectly the same.37 But as Locke also recognized, the picture changed once population increased to the point where scarcity was felt. If one person's appropriation cast a shadow on the survival prospects of others, then evidently it raised questions of a moral character that were not raised when resources were as plentiful as water in a river. One does not need the exact formulation of a "Lockean proviso" to see this. The point is simply that there are real moral concerns that have to be addressed in the one case that are not present in the other.38 So far I have talked about one acquisitive act, Ai, taking place in one set of circumstances, Ci, and another acquisitive act, A2, taking place in different circumstances, C2. What happens, though, if circumstances change after the moment of the acquisitive act but during the time that the act has effect, i.e. during the period of ownership to which the acquisitive action gives rise? An individual performs an acquisitive act Aj, in circumstances Ci that make it legitimate. It establishes a title that endures through time. During that time circumstances change, so that conditions C2 now obtain, and conditions C2 are such that an equivalent act of appropriation would not be legitimate. What effect does this change have on the legitimacy of the title founded by action A|? The answer has to be that it calls the legitimacy of the individual's entitlement into question. Property entitlements constrain others over a period of time and they do so continually in the literal sense that, again and again, the owner repels boarders, so to speak, rebuffing their claim that they ought to have access to the resource in question or participate in its management. Day after day, the owner faces explicit or implicit challenges from others, wanting to use her resource; if she didn't have the entitlement to rely on she would not be in a moral position to rebut or resist these challenges. So each time she resists an encroachment, she relies on the entitlement founded by A|. At each of those times, the legitimacy of what she does depends on the appropriateness of her entitlement as a moral right at that time. Now, so long as circumstances remain unchanged or so long as any changes are broadly consonant with the necessary conditions for the legitimacy of her entitlement, the entitlement is, so to speak, renewed automatically. But if circumstances change radically in the way we have been envisaging, then continued application of her entitlement can not be taken for granted. (It's like the automatic renewal of a library book until another reader puts in a request for it.) If this is accepted so far as justice in acquisition is concerned, it must also apply to issues and allegations of /«justice. Suppose a person has legitimately acquired an object in circumstances of plenty, C\, and another person comes along and snatches it from him. That act of snatching, we may say, is an injustice. But the very same action of snatching an already appropriated object may not be wrong in a different set of circumstances, C2, where desperate scarcity has set in and the snatcher has no other means of

37 38

J. Locke, Two Treatises, II, sect. 33. The same point is recognized by R. Nozick (Anarchy, State and Utopia, 174ff). The principle of acquisition that forms the lynch-pin of Nozick's theory depends for its acceptability on the claim that individual appropriations of previously unowned goods do not worsen anybody's situation. (Nozick wishes, as far as possible, to present initial acquisition in the same light of Pareto-improvement as consensual transfer.) We need not worry about the exact details of this proviso. What is clear is that in any plausible theory of historic entitlement, there is some spectrum of social circumstances, relating to the effect a putative acquisition would have on the prospects and lifechances of other people, such that the further one goes along this spectrum the less inclined we are to say that the acquisition in question generates legitimate rights.

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staying alive. One and the same type of action may be an injustice in one set of circumstances and not an injustice in another. And that is where our second story about the waterholes comes in. I said that the burden of justifying an entitlement depends (in part) on a moral assessment of the impact on others' interests of their being excluded from the resources in question, and that that impact is likely to vary as circumstances change. Similarly an acquisition which is legitimate in one set of circumstances may not be legitimate in another set of circumstances. From this I inferred that an initially legitimate acquisition may become illegitimate or have its legitimacy restricted (as the basis of an on-going entitlement) at a later time on account of a change in circumstances. By exactly similar reasoning, it seems possible that an act which counted as an injustice when it was committed in circumstances Ci may be transformed, so far as its on-going effect is concerned, into a just situation if circumstances change in the meantime from C\ to C2. When this happens, I shall say the injustice has been superseded. None of this changes when we move from individuals to groups: for all the argument posits is that there are others affected by the acquisition and by its continuance as an entitlement, and that the legitimacy of their exclusion maybe called in question by changes in circumstances. It is a mistake to think that there is any less difficulty in justifying collective entitlements than in justifying individual entitlements.39 There would be a difference if the collective comprised all those who might conceivably have a claim against the resource. But that is not usually the case, and it is certainly not the case in New Zealand where the groups at the focus of debates about historic injustice were historically and prehistorically engaged in the warlike exclusion of other groups from the use of the resources they now claim. It may be objected that the whole line of reasoning in this section generates a moral hazard - an incentive for wrongdoers to seize others' lands confident in the knowledge that if they hang on to them wrongfully for long enough their possession may eventually become rightful. But the argument of this section is not that the passage of time per se supersedes all claims of injustice. Rather, the argument is that claims about justice and injustice must be responsive to changes in circumstances. Suppose there had been no injustice: still, a change in circumstances (such as a great increase in world population) might justify our forcing the aboriginal inhabitants of some territory to share their land with others. If this is so, then the same change in circumstances in the real world can justify our saying that the others' occupation of some of their lands, which was previously wrongful, may become morally permissible. There is no moral hazard in this supersession because the aboriginal inhabitants would have had to share their lands, whether the original injustice had taken place or not. I do not think this possibility - of the supersession of historic injustice, of historic injustice being, so to speak, overtaken by circumstances - can be denied, except at the cost of making one's theory of historical entitlement utterly impervious to variations in the circumstances in which holdings are acquired and withheld from others. If circumstances make a difference to what counts as a just acquisition, then they must make a 39

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See R. Nozick, Anarchy, State and Utopia, 178: "We should note that it is not only persons favoring private property who need a theory of how property rights originate. Those believing in collective property, for example those believing that a group of persons living in an area jointly own the territory, or its mineral resources, also must provide a theory of how such property rights arise; they must show why the persons living there have rights to determine what is done with the land and resources there that person's living elsewhere don't have (with regard to the same land and resources)."

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difference also to what counts as an unjust incursion. And if they make a difference to that, then we cannot deny that a change in circumstances can affect whether a particular continuation of adverse possession remains an injustice or not. Of course, from the fact that supersession is a possibility, it does not follow that it always happens. Everything depends on which circumstances are taken to be morally significant, and how as matter of fact circumstances have changed. It may be that some of the historic injustices that concern us have not been superseded, and that, even under modern circumstances, the possession of certain aboriginal lands by the descendants of those who expropriated their original owners remains a crying injustice. My argument is not intended to rule that out. But there have been huge changes since North America and Australasia were settled by white colonists. The population has increased many fold, and most of the descendants of the colonists, unlike their ancestors, have nowhere else to go. We cannot be sure that these changes in circumstances supersede the injustice of their continued possession of aboriginal lands, but it would not be surprising if they did. The facts that have changed are exactly the sort of facts one would expect to make a difference to the justice of a set of entitlements. Quite apart from anything else, the changes that have taken place over the past two hundred years mean that the costs of respecting primeval entitlements are much greater now than they were in 1800. Two hundred years ago, a small aboriginal group could have exclusive domination of "a large and fruitful Territory"40 without much prejudice to the needs and interests of very many other human beings. Today, such exclusive rights would mean that many people going hungry who might otherwise be fed, and many people living in poverty who might otherwise have an opportunity to make a decent life. Irrespective of the occurrence of past injustice, this imbalance would have to be rectified sooner or later. That is the basis for my argument that claims about historic injustice predicated on the status quo ante may be superseded by our determination to distribute the resources of the world in a way that is fair to all of its existing inhabitants in their existing circumstances.

There is, as I said, a connection between the question raised in section 6 - has the group G survived in the relevant sense, into the present as successor to grievances arising form events that took place generations ago? - and the question raised in section 7 - does G have the same rights now that it had at the time the historic violation took place? The questions come together when we consider the basis of Gm's initial entitlement. It was based on the fact that the structure of Gm, as a collective entity, was oriented to Gm's organization of the means of subsistence for its members. The importance of Gm's entitlement is related not to the sheer metaphysics of Gm's existence as an enduring group but to the human role that it played in a particular society. Property rights are often defended on the ground of the pervasive role that a resource comes to play in the life of its owner. An individual who takes possession of an object or a piece of land, and who works on it, alters it and uses it, makes it in effect a part of her life, a pivotal point in her thinking, planning and action. She shapes it in a certain way - ploughing it, for example, or practicing good husbandry in her hunting over it - so as to allow it to perform a certain role in her life and activity not only now but in the future. If someone 40

The phrase is from J. Locke, Two Treatises, II, sect. 41.

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else comes along and seizes the resource, then this whole structure of action is disrupted. And that's the basis of the injustice. But if this is the sort of line we take about the importance of property, then unfortunately our justification is going to be vulnerable to something like historical prescription: we are going to have a justification that is weakened by the historic persistence of dispossession, a justification that does fade over time. If something was taken from me decades ago, then the claim that it now forms the center of my life and that it is still indispensable to the exercise of my autonomy is much less credible. For I must have found some way to live in the meantime; I must have developed some structure of subsistence. And that will be where my efforts have gone, and where my planning and my practical thinking have been focused. I may of course yearn for the lost resource and spend a lot of time wishing that I had it back. I may even organize my life around the campaign for its restoration. But that is not the same thing as the basis of the original claim. The original entitlement is based on the idea that I have organized my life around the use of this object, not that I have organized my life around the specific project of hanging onto it or getting it back. It is probably a little harsh to say that this is the case with some of the groups that are now claiming the benefit of historic reparations: that whereas Gm was a group oriented to its members' subsistence and treasured its property rights accordingly, Gn is a group oriented mainly to its historic grievances and treasures its (violated) property rights as a source of lingering claims against others, well aware that its members have now for several generations been organizing their subsistence on a different basis altogether. As I say, that's a bit harsh, as applied for example to Maori groups. Butt here is more than a grain of truth in it - certainly enough to raise questions about whether the group now demanding the property rights back is similar in any important respect to the group of the same name that 150 years ago was demanding that its property right not be violated. Again, the moral hazard objection rears its head. Some will object that this argument furnishes an incentive to anyone who is inclined to violate another's rights. The thief knows that if he steals resources and hangs on to the proceeds, his victim will have to re-order her life and, once she does, she will no longer be in a position to claim that the stolen resources should be restored because of their centrality to her plans. But I do not see how this difficulty can be avoided. We cannot pretend that a long-stolen resource continues to play a part in its original owner's life when in fact it does not, merely in order to avoid a moral hazard. What the objection shows, I think, is that the normal line of argument for property entitlements is simply insufficient to establish imprescriptible rights. And I can't conceive what would be sufficient to establish property rights in contested resources that were fully imprescriptible. 9. It does not follow from what has been said we should attach no importance to historic injustice of the sort that disfigured the colonial history of countries like New Zealand. The arguments made in sections 4-8 are directed at a particular way of thinking about that injustice and a particular way of approaching its remediation. I have criticized the approach that aims, as it were, to wind the tape back to the injustice and try and make the world as though the injustice had never happened: I have argued that the counterfactuals that that involves are impossible to figure out (if not incoherent), and I have argued too that such an approach tries to do justice to the wrong entities (viz. modern

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day successors to the groups that were important at the time the injustice took place) and to vindicate the wrong rights (rights that obtained in virtue of circumstances quite different from those of the modern world). The reparationist enterprise fails to take proper account of the fact that the people, entities and circumstances in relation to which justice must now be done have changed radically form the peoples, entities and circumstances in relation which violations were historically committed. Some of those changes are a result of the historic injustice. But, as I argued in the early sections of the chapter, that doesn't mean they can be ignored or reversed. We must come to terms with each other here and now, irrespective of how we all got here. Behind the thesis of supersession lies a determination to focus upon present and prospective costs - the suffering and the deprivation over which we still have some control. The idea is that any conception of justice which is to be made practically relevant for the way we act now must be a scheme that takes into account modern circumstances and the way those impact on the conditions under which people presently live their lives. Arguments for reparation take as conclusive claims of entitlement oriented towards circumstances that are radically different from those we actually face: claims of entitlement based on the habitation of a territory by a small fraction of its present population, and claims of entitlement based on a determination to ignore the present dispersal of persons and peoples on the face of the earth, simply because the historic mechanisms of such dispersal were savagely implicated in injustice. And yet, here we all are. The present circumstances are the ones that are real: it is in the actual world that people starve or are hurt or degraded if the demands of justice in relation to their circumstances are not met. Justice, we say, is a matter of the greatest importance. But the importance to be accorded it is relative to what may actually happen if justice is not done, not to what might have happened if injustice in the past had been avoided. I have tried not to make the argument of this chapter depend on anything about the sheer passage of time or the need for social amnesia. Some people do believe that violated rights are capable of "fading away" in their moral importance by virtue of the passage of time, i.e., by the sheer persistence over the generations of what was originally a wrongful infringement. In the law of property, we recognize doctrines of prescription and adverse possession. In criminal procedure and in torts, we think it important to have statutes of limitations. The familiarity of these doctrines no doubt contributes to the widespread belief that, after several generations have passed, certain wrongs are simply not worth correcting. And despite the perennial objection about moral hazard - an incentive for wrongdoers to cling to their ill-gotten gains, in the hope that the entitlement they violated will fade away because of their adverse possession -, that view (that certain rights are prescriptable) does have something to be said for it. Some of the things favor prescriptability are simply pragmatic. Statutes of limitations are inspired as much by procedural difficulties about evidence and memory, as by any doctrine about rights. It is hard to establish what happened if we are enquiring into events that occurred decades or generations ago. There are non-procedural pragmatic arguments also. For better or worse, people build up structures of expectation around the resources that are actually under their control. If a person controls a resource over a long enough period, then she and others may organize their lives and their economic activity around the premise that that resource is 'hers', without much regard to the distant provenance of her entitlement. Upsetting these expectations in the name of restitutive justice is bound to be costly and disruptive. But in this chapter I have tried not to rest on these considerations except to the extent that they enter into the meaning and application of other substantive principles. (I have

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in mind here the argument developed in section 8.) For it is not appropriate to simply announce a principle of prescription. The important thing is to understand the living issues of morality and justice that such a principle expresses in its bluff, peremptory way. So I have tried to focus on the underlying issues, and I have not been particularly concerned whether a bland one-size-fits-all principle of prescription can be erected on the basis of them. I rely even less on the plea, that is sometimes heard, for a sort of collective amnesia. "Can't we forget about the past?" people complain, "Why do we have to keep dredging up these historic grievances. Can't bygones be bygones." There are many important reasons why the answer to that question must be a categorical "No", and why it is very important for me that my argument in this chapter should be taken as an argument against a particular misuse of historic memory and not at all against the importance of historic memory as such. To begin with, those who plead for forgetfulness with the slogan "Let bygones by bygones" are acting complacently as though they have nothing to learn from their own history. An historical judgement about the past, if it is also a moral judgement, necessarily says something for the present and future. All moral judgments are practical and prescriptive in their illocutionary force; they purport to guide choices.41 When I make a moral judgement about an event E, I do so not in terms of the irreducible particularity of E but on the basis of some reproducible feature of E that other events might share. In saying, "E was unjust", I am saying, "There is something about E and the circumstances in which it was performed, such that any act of that kind performed in such circumstances would be unjust." Thus, I am not so much prescribing the avoidance of E itself (a prescription that makes no sense if E is in the past), but prescribing the avoidance of E-type events. Though E occurred 150 years ago, to condemn it is to express a determination now that, in the choices we face, we will avoid actions of this kind. The point of doing this is not that we learn new (and better) moral standards for our lives now from the judgments we make about the past. Unless we had those standards already, we wouldn't make those judgments. But our moral understanding of the past is often the best way of bringing to life the force and full implications of principles to which we are already in theory committed. To be disposed to act morally, it is not enough to be equipped with a list of appropriate principles and values. One also needs a sense of the type of situation in which these things may be suddenly at stake, of the sort of temptations or difficulties that might lead one to betray them, of the circumstances and entanglements that lead otherwise virtuous people to start acting viciously. That, among other things, is what history provides. And one of the most lamentable features of the mythmaking that is sometimes substituted for history is that, by making the past look better and more straightforward than it was, it obscures this invaluable sense of what is like to face real moral danger. Beyond that, there is an importance to the historical recollection of injustice that has to do with identity and contingency. It is a well-known characteristic of great injustice that those who suffer it go to their deaths with the conviction that these things must not be forgotten. It is easy to misread that as a vain desire for vindication, a futile threat of infamy upon the perpetrators of an atrocity. But perhaps the determination to remember 41

Redressing Historic Injustice

Jeremy Waldron

Opinions differ in meta-ethics about whether this illocutionary function provides a complete explanation of the distinctively moral meaning of words like 'right', 'wrong', 'unjust', etc. For the view that it does, see R.M. Hare, The Language of Morals. But most moral philosophers concede that even if it is not the whole story, still it is an essential part of the explanation of the meaning of such a words that they have this prescriptive function.

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is bound up with the desire to sustain a specific character as a person or community against a background of infinite possibility. That this happened rather than that - that people were massacred (though they need not have been), that lands were taken (though they might have been bought fairly), that promises were broken (though they might have been kept) - the historic record has a fragility that consists, for large part, in the sheer contingency of what happened in the past. What happened might have been otherwise, and, just because of that, it is not something one can reason back to if what actually took place has been forgotten or concealed.42 Each person establishes a sense of herself in terms of her ability to identify the subject or agency of her present thinking with that of certain acts and events that took place in the past, and in terms of her ability to hold fast to a distinction between memory so understood and wishes, fantasies, or various other ideas of things that might have happened but did not.43 But remembrance in this sense is equally important to communities - families, tribes, nations, parties - that is, to human entities that exist often for much longer than individual men and women. To neglect the historical record is to do violence to this identity and thus to the community that it sustains. And since communities help generate a deeper sense of identity for the individuals they comprise, neglecting or expunging the historical record is a way of undermining and insulting individuals as well. When we arc- told to let bygones be bygones, we need to bear in mind also that the forgetfulness being urged on us is seldom the blank slate of historical oblivion. Thinking quickly fills up the vacuum with plausible tales of self-satisfaction, on the one side, and self-deprecation on the other. Those who as a matter of fact benefited from their ancestors' injustice will persuade themselves readily enough that their good fortune is due to the virtue of their race, while the descendants of their victims may too easily accept the story that they and their kind were always good for nothing. In the face of all this, only the deliberate enterprise of recollection (the enterprise we call history), coupled with the most determined sense that there is a difference between what happened and what we would like to think happened, can sustain the moral and cultural reality of self and community. I also want to mention the role that the payment of money (or the return of lands or artifacts) may play in the embodiment of communal remembrance. Quite apart from any attempt to genuinely compensate victims or offset their losses, reparations may symbolize a society's undertaking not to forget or deny that a particular injustice took place, and to respect and help sustain a dignified sense of identity-in-memory for the people affected. A prominent recent example of this is the payment of token sums of compensation by the American government to the survivors of Japanese-American families uprooted, interned and concentrated in 1942. The point of these payments was not to make up for the loss of home, business, opportunity, and standing in the community which these people suffered at the hands of their fellow-citizens, nor was it to make up for the discomfort and degradation of their internment. If that were the aim, much more would be necessary. The point was to mark - with something that counts in the United States a clear public recognition that this injustice did happen, that it was the American people and their government that inflicted it, and that these people were among its victims. The payments give an earnest of good faith or sincerity to that acknowledgment. Like the gift I buy for someone I have stood up, the payment is a method of putting oneself out, 42 43

For a moving discussion, see H. Arendt, "Truth and Politics". See J. Locke, An Essay Concerning Human Understanding, Book II, ch. xxvii, sects. 9-10.

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or going out of one's way, to apologize. It is no objection to this that the payments are purely symbolic. Since identity is bound up with symbolism, a symbolic gesture may be as important to people as any material compensation. I want to end by emphasizing two other points that qualify or clarify my thesis of the supersession of historic injustice. First, what I have said applies only if an honest attempt is being made to arrange things justly for the future. If no such attempt is being made, there is nothing to overwhelm or supersede the enterprise of reparation. My thesis is not intended as a defense of complacency or inactivity, and to the extent that opponents of reparation are complacent about the injustice of the status quo, their resistance is rightly condemned. Repairing historic injustice is, as we have seen, a difficult business and, as a matter of fact, it is almost always undertaken by people of good will. The only thing that can trump that enterprise is an honest and committed resolve to do justice for the future, a resolve to address present circumstances in a way that respects the claims and needs of everyone. Secondly, my thesis is not that such resolve has priority over all rectificatory actions. I claim only that it has priority over reparation which might carry us in a direction contrary to that which is indicated by a prospective theory of justice. Often and understandably, claims based on reparation and claims based on forward-looking principles will coincide, for, as we saw in Section Three, past injustice is not without its present effects. It is a fact that many of the descendants of those who were defrauded and expropriated live demoralized in lives of relative poverty - relative, that is, to the descendants of those who defrauded them. If the relief of poverty and the more equal distribution of resources is the aim of a prospective theory of justice, it is likely that the effect of rectifying past wrongs will carry us some distance in this direction. All the same, it is worth stressing that it is the impulse to justice now that should lead the way in this process, not the reparation of something whose wrongness is understood primarily in relation to conditions that no longer obtain. Entitlements that fade with time, counterfactuals that are impossible to verify, injustices that are overtaken by circumstances - all this is a bit distant, I am afraid, from the simple conviction that, if something was wrongly taken, it must be right to give it back. The arguments I have made may seem to deflate a lot of the honest enthusiasm that surrounds aboriginal claims, and the hope that now for the first time in centuries we may be ready to do justice to people and peoples whom we have perennially maltreated. The arguments may also seem to compromise justice unnecessarily, as they shift from the straightforward logic of compensation to an arcane and calculative casuistry that tries to balance incommensurable claims. But societies are not simple circumstances, and it does not detract one bit from the importance of justice nor from the force of the duties it generates, to insist that its requirements are complex and that they may be sensitive to differences in circumstance. It is true that in many cases the complexity of these issues does not diminish our ability to recognize acts of injustice - stark and awful - like direct expropriation and genocide. The fallacy lies in thinking that the directness of such perception and the outrage that attends it translate into simple and straightforward certainty about what is to be done once such injustices have occurred. "First come, first served." "We were here first." These simplicities have always been unpleasant ways of denying present aspirations or resisting current claims of need. They become no more pleasant, and in the end no more persuasive, by being associated with respect for aboriginal peoples or revulsion from the violence and expropriation that have disfigured our history.

Redressing Historic Injustice

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Bibliography Arendt, H., "Truth and Politics", Hannah Arendt, Between Past and Future. Six Exercises in Political Thought, Viking Press, 1968. Buchanan, J.M., The Limits of Liberty. Between Anarchy and Leviathan, University of Chicago Press, 1975. Hare, R.M., Vie Language of Morals, Clarendon Press, 1952. Hume, D., A Treatise of Human Nature, Oxford University Press, 1973. Kant, I., "Cosmopolitan Right", The Metaphysics of Morals, trans, by Mary Gregor, Cambridge University Press, 1991. Kant, I., "Perpetual Peace", Immanuel Kant, Political Writings, ed. H. Reiss, transl. by H. B. Nisbet, Cambridge University Press, 1970. Kant, I., "Theory and Practice", Immanuel Kant, Political Writings. Kant, I., Kants Werke, Bd. vi, Akademie Werkausgabe, Walter de Gruyter, 1968. Kant, I., Kants Werke, Bd. viii, Akademie Werkausgabe, Walter de Gruyter, 1968. Locke, J., An Essay Concerning Human Understanding, Clarendon Press, 1987. Locke, J., Two Treatises of Government, Cambridge University Press, 1967. Lyons, D., 'The New Indian Claims and Original Rights to Land", Reading Nozick, ed. J. Paul, Basil Blackwell, 1982. Nozick, R., Anarchy, State and Utopia, Basil Blackwell, 1974. Rawls, J., Theory of Justice, Oxford University Press, 1971. Tully, J., "Rediscovering America. The Two Treatises and Aboriginal Rights", Tully, An Approach to Political Philosophy. Locke in Contexts, Cambridge University Press, 1993. Waitangi Fisheries Commission, Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi Fisheries Commission [2000] 1 NZLR 285. Waldron, J., "Historic Injustice. Its Remembrance and Supersession", Justice, Ethics and New Zealand Society, ed. G. Oddie and R. Perrett, Oxford University Press, 1992. Waldron, J., "Superseding Historic Injustice", Ethics 103 (1992). Waldron, J., "Property, Justification and Need", Canadian Journal of Law and Jurisprudence 6 (1993). Waldron, J., "The Advantages and Difficulties of the Humean Theory of Property", Social Philosophy and Policy 11 (1994). Waldron, J., "Kant's Legal Positivism", Harvard Law Review 109 (1996). Waldron, J., The Dignity of Legislation. The 1996 Seeley Lectures, Cambridge University Press, 1999. Waldron, J., "Cultural Identity and Civic Responsibility", Citizenship in Diverse Societies, ed. W. Kymlicka and W. Norman, Oxford University Press, 2000. Waldron, J., "What is Cosmopolitan?", Journal of Political Philosophy 8 (2000). Walzer, M., Spheres of Justice, Basic Books, 1983.

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Historical Rights

Chaim Gans

Contents 1.

Introduction. Two Conceptions of Historical Rights

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2.

First Occupancy

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2.1 First Occupancy as Grounds for Sovereignty

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2.2 Grounds for Determining the Location of a People's Self-determination

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3.

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The Right to Formative Territories

3.1 Grounds for Territorial Sovereignty

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3.2 Grounds for Determining the Site of Self-determination

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1. Introduction. Two Conceptions of Historical Rights The people of Sparta submitted various petitions to Emperor Tiberius during the first few decades of the Common Era demanding the return of Messene to their possession.1 They had lost it to the Thebans some centuries earlier (in 371 BC). The Spartans regarded Messene as part of their fatherland. When they lost Messene, their crown prince Archidamus bewailed it, equating its loss with the loss of Sparta itself.2 This sounds familiar and totally contemporary. Many or perhaps most of the territorial disputes in the last two centuries revolve around similar demands. The Serb demands to hold on to the Albanian-populated Kosovo is the most recent example. One or both parties to these territorial disputes base their claim on what they usually call their "historical rights" to the territory. Claims on the basis of "historical rights" are perhaps not confined to the realm of territory alone. Thus, for example, Melina Mercury, Greece's Minister of Culture in the 1970s, demanded the return of the Acropolis treasures from the British Museum on the basis of similar arguments. When political philosophers refer to historical rights they have in mind such rights as A's right to a piece of land because he was first to occupy and cultivate it, or because he

1 2

See Tacitus, The Annals of Imperial Rome, ch. 43. "I should feel disgraced [...] if I did not strive with all the strength that is in me to prevent this territory, which our fathers left to us, from becoming the possession of our slaves [...]. To be sure, if we are in a mood not to defend our title to anything, not even if they demand that we abandon Sparta itself, it is idle to be concerned about Messene; but if not one of you would consent to live if torn from the fatherland, then you ought to be of the same mind about that country; for in both cases we can advance the same justifications and the same reasons for our claim." (Isocrates, Archidamus, ch. 8-11, 24). (I am grateful to Irad Malkin for pointing out this example to me.)

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acquired it by means of a contract, or will or through matrimony.3 These rights are different from such rights as the right to freedom of speech, the right to a minimum wage, or the right to privacy. The latter can be said to be ahistorical. Their holders acquire them by virtue of belonging to general categories, such as being human or adult citizens, and not by virtue of particular events with which they are specifically associated. The rights of the former type are "historical" because their holders acquire them by virtue of specific events that occurred at particular points in time.4 In this very broad sense of the term, whatever takes place in time is "historical". Thus, every sneeze and hiccup could be considered historical. However, the term "historical" is usually used in more narrow contexts. It does not denote each and every event occurring in time, but rather those events that we perceive as significant. For example, the assassination of the Austrian Archduke in Sarajevo on a summer morning in 1914 is regarded as an event worthy of being called "historical", in contrast, for example, to the fact that the Archduke brushed his teeth the same morning.5 The historical rights to be discussed here - those that are used in nationalist disputes mainly in order to justify territorial claims - are "historical" in this narrow sense; that is, they are historical by virtue of being acquired through significant events (or series of events). In public and academic political discourse, the notion of historical rights in this narrower sense oscillates between two conceptions. One conception focuses on the primacy of the national group in the history of the territory over which it demands sovereignty, while the other conception focuses on the primacy of that territory in the history of the national group demanding the sovereignty. According to the first conception, the fact that a national group was first to occupy a disputed territory (at least in relation to existing national groups), is conceived within modern nationalist disputes (and perhaps not only modern disputes) as a crucial link in the history of that temtory for the purpose of determining sovereignty over it. On the basis of such a claim, Thomas Masaryk tried to convince the leaders of the countries that won World War I to include the Sudeten district, then mostly inhabited by Germans, within the Czechoslovakian republic. Masaryk referred to Czechoslovakia's right to sovereignty in the Sudeten district as a historical right, as it was the first in a succession of sovereigns in that area.7 This conception of historical.rights, a "first occupancy conception", is also implicit in Iraq's demand for Kuwait and in that of the Iranians for 3 4 5 6

7

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Chaim Gans

The tradition of calling such rights "historical" has developed since R. Nozick's book Anarchy, State and Utopia. Compare with the analogous distinction between special and general rights, H.L.A. Hart, "Are There Any Natural Rights?", 84. Philosophers of history call this "the problem of selection". See W.H. Dray, Philosophy of History, 37f. Without taking sides in the dispute regarding whether or not, and to what extent nationalism is a modern phenomenon, it should be noted that territorial conflicts in which national or quasi-national groups invoke their primacy in the disputed territory are not entirely modern. The Spartans' complaint to Tiberius mentioned earlier is not the only example. A very similar story appears in the Talmud (Sanhedrin 91, 1). It is about a dispute between the Israelites and Canaanites which was brought before Alexander the Great. The Canaanites argued that they had lived in Canaan before the Israelites and supported their claim with evidence from the Torah according to which the land of Canaan was promised to the Israelites. ("Command the children of Israel, and say unto them, When ye come into the land of Canaan (this is the land that shall fall unto you for an inheritance, even the land of Canaan according to the borders thereof.)" (Numbers 34:1)). By calling it the land of Canaan, the Torah in fact admits that the Canaanites had indeed inhabited the land before the Jews. The Canaanites should therefore own it. T.G. Masaryk, The Making of a State, 385f.

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some of the islands of Abu Musa from the United Arab Emirates.8 The same conception figures in the Tamil-Sinhalese dispute over Sri Lanka, the Jewish-Palestinian dispute over Palestine, and the territorial demands which Native Americans, New-Zealanders and Australians have made against the European populations of their countries.9 The great appeal of this argument in disputes between nations is sometimes demonstrated by the fact that the parties that seem to be the underdogs in these disputes do not try to deny the validity of this argument. What they do instead is construct a genealogy that supposedly demonstrates their kinship ties to extinct peoples who had occupied the disputed territories before their rivals. They thus win the argument by themselves becoming the first occupants. For example, among the peoples that exist today, the Hungarians were the first to maintain organized settlements in Transylvania. Romanians try to prove that they were the first by claiming to be descendants of the Romans who conquered Dacia (of which Transylvania is a part), in the Second Century AD.10 Since among the peoples that exist today, the Jews were the first to maintain an organized settlement in Canaan, that is, Eretz Yisrael or Palestine, the Palestinians have tried to prove they were the first occupants by claiming to have descended from the Canaanites, who had occupied the land before the ancient Hebrews." According to the second conception, the fact that the disputed territory is of primary importance in forming the historical identity of the group, is considered as strong enough reason for purposes of determining sovereignty over it. Israel's declaration of independence clearly expresses this conception. It states that it was in Eretz Yisrael that "the Jewish people came into being", and that it was there that "the people's spiritual, religious and political image was forged", where "it lived a life of sovereign independence, in which it created national and universal cultural treasures". "Bearing this historical tie", the declaration goes on to say, "the Jews of every generation have striven to return and re-embrace their ancient homeland." These passages express a view according to which the experiences which the Jews underwent in Palestine were formative in their becoming a nation. This is why they strive now to return to Palestine. As implied here, the Jews have an historical right to Eretz Yisrael, not because they were the first among contemporary peoples to occupy it, but rather because it was of primary importance in forming their identity as an historical entity. The second conception of historical rights shifts the emphasis from a people's primacy in a given territory to the primacy of this territory for a given people. One result of this shift is that the primacy considered relevant is mainly value-based rather than chronological. Moreover, according to the first occupancy conception, the normative importance of the entitling fact is based upon its chronological primacy, while within the second conception which could be called "the formative territories conception", the chronological primacy is based on the normative importance of the territory. Because the territory is of primary importance in the formation of the group, it is also the first territory in the chronological sense in which the group as such ever existed. 8 9

10 11

See F. Mehr, A Colonial Legacy. On the demands of the aboriginal peoples against the settlers' nations see for example: D. Lyons, 'The New Indian Claims and Original Rights to Land"; J. Waldron, "Superseding Historic Injustice"; J.A. Simmons, "Historical Rights and Fair Shares"; M. Moore, "The Territorial Dimension of Self-determination"; A. Sharp, Justice and the Maori; R. Poole, Nation and Identity; D. Ivison, P. Patton and W. Sanders, Political Theory and the Rights of Indigenous Peoples. See N. Stoicescu, The Continuity of the Romanian People. Few years ago an Israeli daily published a news item with the following title: "Palestinian Archeologists: We have uncovered Canaanite buildings from 3000 B.C., which confirms our historical right to Palestine." (Ha'aretz, 4 August 1998.)

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Both conceptions of historical rights, namely, that of "first occupancy" and that of the "right to formative territories", involve problems that pertain to the criteria to be used in order to apply each of their key concepts. That is, with regard to first occupancy, when can a people be said to "occupy" a territory? Can a people occupy a territory that lies beyond the area actually inhabited by its members?12 Similar problems are raised by the notion of historical rights as rights to formative territories. When can a territory or an object justly be said to be "of formative value" to the historical identity of a given people? Should we adopt objective and uniform criteria for answering the above questions? Or should we ascribe some importance to the subjective feelings of the people whose right is in question, provided that there is documentation of these feelings? I believe these difficulties can somehow be resolved, but do not wish to elaborate on them here. The more significant problems concerning historical rights do not pertain to how the conceptions of occupancy and formativeness should be applied, but rather to the normative status of these conceptions. Does the fact that a given people were the first to occupy a certain territory, or that the territory is of formative value for a given people indeed justify granting this people sovereignty over this territory and/or the right to demographic and cultural presence there?13 In answering this question, the significance of claiming a right to sovereignty must be borne in mind. A right to sovereignty over a given territory means a power to subject the whole world to the right-holder's decisions regarding life within this territory and to his or her decisions regarding the use and enjoyment of this territory and the resources which it contains.14 To sustain such significant consequences, a claim to such a right must be backed by powerful considerations. In what follows I will examine what considerations regarding vital needs and interests of the people concerned could be linked to first occupancy and formativeness respectively. However, my discussion requires two further distinctions. The first distinction pertains to whether first occupancy and formativeness could justify acquisition of territorial rights within the framework of distributive justice, as opposed to whether they could justify restitution of territorial rights within the framework of corrective justice. When national groups nowadays invoke historical rights in order to justify territorial claims they usually do so in order to demand the restitution of territorial rights. However, it must be noted that such demands for restitution are inconceivable if the historical rights under consideration did not also justify rights of acquisition in the first place. If the demand to restore the sovereignty of a given nation in a given territory is based either on first occupancy or on a formative tie, then it necessarily presupposes that this occupancy and formative tie were also grounds for its sovereignty over the territory in question before the physical tie with that territory was lost. Only if this presup-

Historical Rights

position is indeed valid, that is, only if the historical rights under discussion here constitute primary rights of acquisition within distributive justice, can the loss of the physical tie with the territory be considered a wrong which must be remitted by returning the territory to the possession and sovereignty of the group that has lost it. The distinction between the role of historical rights as grounds for acquisition within distributive justice, and the role of historical rights as grounds for restitution within corrective justice is important in practice not only because their validity as rights of distributive justice is a necessary condition for their ability to play a role within corrective justice, but also because this validity is merely a necessary condition. As we shall see below, historical rights as grounds for acquisition do not constitute a sufficient condition for restitution. Especially for reasons associated with limitation, prescription and adverse possession, the fact that historical rights may play a certain role within the context of distributive justice, does not automatically justify granting them a similar role within the context of corrective justice, especially not for purposes of restitution.1 The second distinction that my discussion requires is between the right to territorial sovereignty and, on the other hand, how the location of territorial sovereignty is to be determined. The need to make this distinction stems from the fact that peoples' right to territorial sovereignty could be based on ahistorical considerations such as their right to self-determination and independent statehood. National groups could be entitled to independent statehood and therefore to territorial sovereignty simply by virtue of being national groups and not by virtue of particular events with which they may specifically be associated. If national groups have a right to territorial sovereignty, then in order to exercise it, questions concerning the location of the territories to be under their sovereignty must first be resolved. First occupancy and formativeness could serve as bases for resolving the issue of location even if they cannot serve as bases for the very right to territorial sovereignty. However, it must be noted that considerations for determining the location of sovereignty do not necessarily apply to the scope of this sovereignty. The scope of this sovereignty could perhaps be determined by the size of the groups, their lifestyles and other factors. Thus, it could be the case that the territorial sovereignty of a given national group (the specific location of which is determined either by first occupancy or formativeness) would extend only over part of the territory which was first occupied by that group or with which this group has formative ties. It need not necessarily extend over the entire territory. Hence the practical importance of the present distinction. In the second section below, I shall discuss the possibility that historical rights in their first conception - that of first occupancy - could form a basis for the right to terri15

12

13

14

With regard to this point, Rousseau scoffed at the practice of fifteenth and sixteenth-century European discoverers to stake a claim to the places they reached by sounding declarations in ceremonies held for this purpose. See J.J. Rousseau, The Social Contract, ch. 9. Answering these normative questions is my main concern in this article. However, this should not conceal the fact that national movements invoke claims of historical rights as mobilizing tools and that their efficiency as such deserves a separate discussion. It should be noted that such claims usually sustain popular participation in national movements only to the extent that they are supported by expectations of concrete gains or losses. Moreover, it also should be noted that claims to sovereignty over territories have more often been recognized not as a result of acknowledging their moral justifiability, but rather because of victory in war or international treaties that support a particular balance of power. Thus, territorial sovereignty seems to be more than ownership. On the need to distinguish between the two see L. Brilmayer, "Consent, Contract and Territory", 15.

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It must be stressed that the existence of corrective/remedial rights in the realms of sovereignly and property, though they are necessarily historical (for people have them by virtue of events with which they are specifically connected), does not entail the existence of distributive/primary historical rights. John Simmons seems to believe otherwise. According to him, since our moral and legal practices take historical rights of rectification very seriously, we need also take historical rights in acquisition seriously (See J.A. Simmons, "Historical Rights and Fair Shares", 156). However, it seems to me that this conclusion is misconceived. One may take rectification rights seriously, as legal and moral practices in fact do. Yet this does not entail that the primary rights themselves are historical. It is possible for a person to have been the owner of a piece of property not necessarily because he was the first to occupy it or because he had a formative tie with it, but because like everyone else, he is entitled to a piece of property for one reason or another. If one believes that X ought to compensate Y for a piece of land of which he dispossessed him, one need not necessarily believe that Y's original title to this piece was based necessarily on Y's first occupancy of it, or his formative tie with it. On the relationship between distributive and corrective historical rights see also note 35 below.

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torial sovereignty. In the third section, I shall discuss the possibility that historical rights in their second conception - that of formative ties - could form such a basis. The first conception (first occupancy) has been discussed extensively in the legal and philosophical literature dealing with the right to private property. Within this literature, first occupancy has been a dead horse for a long time. This issue should perhaps be invoked again in the context of national disputes because it is frequently used by nationalists. In any case, it might help clarify the role played by historical rights in national disputes when they are conceived as rights to formative territories. In the next section, after rejecting first occupancy as a basis for the very right to territorial sovereignty, I shall argue that it can serve as a basis for the right to determine the site of sovereignty for purposes of acquisition, but not for purposes of restitution. In section 3 I shall argue that formative ties could also not serve as a basis for the very right to sovereignty. However, formative ties could serve as a basis for determining the site of national self-determination, sometimes not only with regard to the original acquisition and preservation of that site, but also in order to restitute physical ties with it. 2. 2.1

First Occupancy First Occupancy as Grounds for Sovereignty

According to Raz, to have a right means to have an interest that justifies imposing a duty or duties on others.16 If we accept this definition, then it follows that a nation's first occupancy of a given territory justifies its sovereignty over it if it has interests in it (due to the fact that it was its first occupant) that justify imposing the duties that correspond to sovereignty rights on the whole world. It is clear that neither the interest that national groups have in their own continuous survival, nor their interests in self-determination (such as the interest in cultural preservation, or the interest in determining their own destiny), necessarily require their sovereignty over the territories in which they were the first occupants. With regard to the interest in continuous survival, national groups could also survive without any sovereignty rights. This, in fact, has been the case for many national groups. The survival of national groups certainly does not depend on gaining sovereignty over the specific territories that they were first to occupy. As for the interests in self-determination, it is widely believed that the fulfillment of these interests usually requires territorial sovereignty. I shall argue below that self-determination is, indeed, typically connected with the specific territories that have acquired primacy in the nation's history. However, it is not clear why self-determination has anything to do with first occupancy in any specific territory. The interests which national groups have in self-determination do not seem to derive from the fact that they were first to occupy a given territory. Nor does it seem that the satisfaction of these interests depends on the territories that they were first to occupy.

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may develop such expectations because they did not evict anyone from the territories in which they were first occupants. However, most nations existing today, including those who resort to historical rights, cannot seriously claim that they are first occupants in this sense (except, perhaps, for some of the aboriginal peoples of North America, Australia and New Zealand). At most they can claim that they are first relative to all other nations that exist today.19 They therefore expect that none of the latter should object to their occupation for reasons related to a common past. However, could such expectations serve as a basis for sovereignty rights? It seems that the answer to this question must be negative not only with regard to occupants whose occupancy is first relative to all other nations that exist today, but also with regard to occupants whose primacy is absolute. If absolute first occupants still occupy the territories in which they were the first occupants, then they could at most assume that it is prima facie undesirable to push them out of these territories by resorting to violent or fraudulent means. Those who are first occupants only in the relative sense could assume, ex hypothesis, that no existing nation could resort to grievances pertaining to a common past in order to justify evicting them. However, this does not justify sovereignty rights, since sovereignty means a right to govern the territory even if others are currently occupying it. The duties corresponding to this right involve the risk of losing sources of livelihood as well as the conditions necessary for freedom. It seems unlikely that the expectations of absolute first occupants, and especially the expectations of those whose occupancy is first only relative to other existing nations, could be important enough to justify endangering such urgent interests. Rousseau stated this point clearly. "How can one man or a whole people take possession of vast territories, thereby excluding the rest of the world from their enjoyment, save by an act of criminal usurpation, since, as the result of such an act, the rest of humanity is deprived of the amenities for dwelling and subsistence which nature has provided for their common enjoyment?"21 The above quote from Rousseau contains two points. One pertains to the intensity of the sacrifice entailed by the duties corresponding to sovereignty rights. The other concerns the inequality resulting from the imposition of these duties. Rousseau deals with the possibility of obtaining sovereignty by virtue of first occupancy, without specifying the interest which is to be protected by granting sovereignty to first occupants. However, it seems safe to believe that his arguments and conclusion apply if the interest in question is the first occupant's interest that his expectations be respected. People develop various sorts of expectations and might have an interest that their expectations be 18

19

If first occupancy plays any special role whatsoever, that is, if it constitutes a source of any human interest, then this interest must in some way be related to the expectations held by the first occupants with regard to the territories they occupied. David Hume was of the opinion that first occupants of a territory would eventually develop expectations to continue occupying this territory for a prolonged period.17 Perhaps first occupants 20 16 17

See J. Raz, The Morality of Freedom, ch. 7. See Hume, A Treatise on Human Nature, ch. 2, sect. 3. See also J. Bentham, "Principles of the Civil Code"; J. Waldron, The Right to Private Property, 286.

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It is likely that only some of these groups could claim absolute primacy in these territories. See W. Kymlicka, Multicultural Citizenship, 220. Ross Poole argues that the Australian aborigines have lived there for 60,000 years. "In terms of any conceivable human experience of time, the Aborigines have been in Australia forever." (R. Poole, Nation and Identity, 129). See also M. Moore, 'The Territorial Dimension of Self-determination", 143. According to the Talmudic source cited in note 6 above, the Jews who presented their dispute with the Canaanites to Alexander acknowledged the fact that they were not really the first occupants in Canaan. To overcome this difficulty, they quoted the biblical curse according to which the Canaanites were doomed to be slaves. ("Cursed be Canaan; A servant of servants shall he be unto his brethren" (Genesis 9, 25)). They then argued that slaves could not own property. Again, this is similar to the Spartan-Messenian case. The Spartans acknowledged the fact that they were not the first occupants of Messene, but claimed sovereignty over it since they regarded its original occupants to be their slaves. This is explicitly stated by Archidamus quoted in note 2 above. These points are similar to those cited by Waldron from Kant and others with regard first occupancy as a basis for the right to private property. See J. Waldron, The Right to Private Property, 267f. J.J. Rousseau, The Social Contract, ch. 9.

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respected. However, whether these expectations could serve as a basis for rights depends on the price others would have to pay for respecting these rights. In our case it seems quite obvious that first occupancy cannot serve as a basis for acquiring sovereignty. Many of those who use the historical rights argument in the first occupancy sense tend to speak of first occupancy without adding elements which play a central role in what is held to be the best philosophical version of the original acquisition argument for private property, namely, that proposed by John Locke. Locke insisted not merely on first occupancy, but on first cultivation of what beforehand had been common property. One might want to believe that the first occupancy argument for sovereignty could be rescued if it were stated in terms of Locke's original acquisition argument for private property. However, this would not save the argument. Rousseau's objections against first occupancy regarding the magnitude of the burdens imposed by acknowledging first occupancy as grounds for sovereignty, and the inequality entailed by such recognition also apply to original acquisition by labor and cultivation.22 The purpose of the above arguments is to deny the possibility of granting sovereignty to first occupants who still occupy the territories over which they claim sovereignty. According to these arguments, first occupancy cannot be a basis for acquiring and preserving sovereignty within the framework of distributive justice. However, as noted above, the national groups that usually resort to arguments based on historical rights are national groups that lost their occupancy many generations ago and wish to restore it. They do not demand the preservation of the status quo, but rather the restitution of a previous state of affairs. If the wisdom inherent in Rousseau's dictum is sufficient for denying sovereignty to first occupants who still occupy the territory in question, then, a fortiori, it must be sufficient for denying sovereignty to first occupants who have lost their occupancy. From this it does not follow that a possession fraudulently or violently usurped in recent times need not be returned to its former possessor. However, what the perpetrator could grant the victim is that the victim repossess the property. If the arguments which claim that first occupancy in a territory cannot justify sovereignty over it in the first place are sound, then first occupancy cannot justify sovereignty merely because the occupant had been dispossessed and was later reinstated.

2.2

Grounds for Determining the Location of a People 's Self-determination

Thus, first occupancy cannot serve as grounds for territorial sovereignty. However, if a general right of nations to territorial sovereignty could be justified by ahistorical considerations such as their interests in self-determination, should first occupancy serve as the basis for resolving the issue of determining the site of this sovereignty? I would like to argue that it could in principle serve as such a basis, since merely determining the location of a given people's sovereignty does not involve imposing on others the type of concessions that derive from the duties and liabilities corresponding to sovereignty rights. Given the scarcity of resources and space in the world, grounding sovereignty 22

Jeremy Waldron has convincingly shown this in detail with regard to private property and with regard to all possible sorts of unilateral acquisition, not only with regard to first occupancy. He formulated Rousseau's arguments in terms of contractarian political morality. Waldron also has demonstrated how the standard method by which adherents of original acquisition theories of property attempt to avoid the present criticism, namely, modifying it by a Lockian Proviso, is bound to fail. See J. Waldron, The Right to Private Property, ch. 7.

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rights on first occupancy may, as shown above, endanger the livelihood and autonomy of many people. However, no such danger is involved if first occupancy only serves as grounds for determining the location of sovereignty. People will only have to pay the price of being excluded from specific areas. These areas would not be any larger than those from which they would in any case be excluded, if the territorial rights accompanying self-determination were justly distributed among national groups. Furthermore, unlike the expectations of first occupants that they be granted sovereignty, their expectation that first occupancy should serve to determine the site where their territorial rights are to be realized is justifiable. This is so since the issue of the site for the realization of such rights, as opposed to, for example, the issue of the scope of these territories, can only be resolved by methods of pure procedural justice such as flipping a coin.23 There are no independent substantive criteria for determining this issue.24 Since chance is involved here, why not resort to historical chance, that is, to the fact that certain peoples happened to occupy certain regions before others did? Why is flipping a coin any better for that purpose than historical chance? In order to see that this is indeed the situation, it is sufficient to imagine a kind of original position with a Rawlsian veil of ignorance. What people know is that they belong to a certain people and that this people is located in a certain territory. However, they don't know which people they belong to and which territory it occupies. Would they opt for flipping a coin or for staying put? The risk of moving to worse places due to flipping the coin is equal to the risk of being in a bad spot due to staying put. Consequently, they are likely to choose the latter. Moreover, the criterion of first occupancy provides the simplest, most convenient and most economical procedure for solving the problem of determining the site of the territorial sovereignty (or lesser territorial rights accompanying self-determination) of various peoples. Any other procedure would entail the relocation of peoples, which would be costly and would involve extreme discomfort. The expectation of the first occupants of a territory that their occupancy should serve as grounds for locating their territorial rights are thus sound, and can serve as grounds for determining the site of these rights. All this, however, if it indeed proves to be correct, applies only when the first occupant is also the present occupant. First occupancy could serve as a basis for determining the site of sovereignty for the purpose of acquiring and preserving it. If a certain people was the first occupant of a given territory but lost its physical tie with it, then considerations of convenience and economy can no longer be invoked to justify the location of this peoples' self-determination in that particular territory. To the contrary, these considerations now favor determining the territory in question as the site for the current occupants' self-determination. Of course, this is subject to the condition that the later occupant did not attain occupancy through morally objectionable means. If this occupancy was attained through such means then, firstly, it would not be supported by one of the reasons cited above as supporting the current occupancy as grounds for determining the location of sovereignty, i.e.: historical coincidence as preferable to flipping a coin, for the occupancy is not a result of a morally neutral coincidence. Secondly, there would be reasons for not allowing the present occupant to enjoy the occupancy since it was attained through violence. However, if the later occupancies are not associated with such moral wrongs, or if they are associated with ancient wrongs that are subject to prescrip-

23 24

On the concept of pure procedural justice see J. Rawls, A Theory of Justice, 86. Such substantive criteria could, for example, be different peoples' taking turns in occupying given territories. However, this of course is impractical.

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tion, then these later occupancies rather than the first occupancy are supported by the reasons presented above as favoring first occupancy. Hence, in cases of restoring a previous state of affairs, first occupancy does not only fail to provide a basis for territorial sovereignty, but also fails to justify a more limited potential right, namely, a right to determine the site of territorial sovereignty. This is significant in view of the fact that historical rights are most often employed to demand the restitution of old regimes, not the preservation of existing ones. As we shall see below, the alternative construal of historical rights as rights to formative territories may constitute a better basis for the restitution of sites for sovereignty, a basis which may be of practical significance in at least some cases. 3. 3.1

The Right to Formative Territories Grounds for Territorial Sovereignty

Unlike the above interpretation of historical rights, if historical rights are interpreted as rights to formative territories, it is not difficult to identify interests that these rights are meant to protect. Attempts to identify such interests are far less unnatural than my above efforts to extricate a particular interest that is to be protected by historical rights in their first occupancy conception. If the events thought to have formed the historical identity of a national group took place in specific territories, it seems likely that these territories would be perceived by the members of that group as bearing deep and significant ties to their national identity. A natural analogy which would explain the ties between peoples and their formative territories is that of the ties between individuals and their parents. Many languages have a term for the concept of "fatherland".25 This concept represents an abstraction of territories common in many cultures, and is consistent with the above analogy.26 If we appeal to this analogy, then the claim that national groups possess some important interests in their formative territories is in need of no elaborate proof. Providing evidence for the existence of such an interest is much like attempting to prove that the tie between children and their parents forms a source of special interests. The existence of such interests would seem to be clear and self-evident, requiring no proof. However, while no evidence is necessary for the existence of these interests, the normative implications that they entail do require some elaboration. The interest in formative territories which the parental ties analogy represents is the desire to be in close physical proximity to one's loved ones, that is, not to be separated from them or to spend one's life in a state of pining. The crucial question is whether the force of these interests renders them solid grounds for sovereignty rights, which, as noted above, imply the power to subject the whole world to the right-holder's decisions regarding the regulation of life within the territory over which he/she is the sovereign and to his/her decisions regarding the use and enjoyment of this territory. In order to 25

26

See the quote from Archidamus in note 2, above. The notion of fatherland was common not only in ancient European civilization (on this see, for example, M. Viroli, For Love of Country, 18), but also in the pre-European American world. "In 1761," says Tully "the Chippewa leader Minivavana enlightened the English trader Alexander Harvey at Michilimackinace in the following typical manner: 'Englishman, although you have conquered the French, you have not yet conquered us. We are not your slaves. These lakes, these woods and mountains, were left to us by our ancestors. They are our inheritances: and we will part with them to none.' " (J. Tully, Strange Multiplicity, 119). On this abstraction see A.D. Smith, "States and Homelands", 196f. See also A.D. Smith, National Identity; L.K.D. Kristof, "The State-Idea, The National Idea and the Image of the Fatherland".

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answer this question I would like to return here to the example of Melina Mercury's demand that the British restore the treasures of the Acropolis to Greece. A comparison between this case and historical rights as grounds for territorial sovereignty may serve to provide a comparative perspective. The interest that the British have in the prestige of their museums would seem to constitute a rather weak rival to the historical interest that the Greeks have in the treasures of the Acropolis. It would seem that the latter could rather easily override the former. However, can the interest national groups have in their formative territories also easily override its rivals, namely, people's interests in their livelihood and freedom? The interest in formative territories is certainly a much more serious candidate for overriding the interests in livelihood and freedom than the interests underlying first occupancy claims. This is so not only because it is a more real and powerful interest, but also because acknowledging it as a basis for sovereignty does not endanger the interests that others might have "in dwelling and subsistence" to the same extent that acknowledging first occupancy does. The reason for this is that the process in which formative relations are formed between a territory and a national group is a relatively slow and long process whereas first occupancy can be acquired instantly. The danger of the sort to which Rousseau was referring, namely, the danger of depriving people of the "amenities for dwelling and subsistence", seems much less threatening when one acknowledges formative links between nations and territories as a basis for sovereignty, than when one recognizes first occupancy as such a basis. However, dangers smaller than other dangers could nevertheless be serious. Since national entities are dynamic in their nature, since new ones are continually formed and old ones expand or shrink, the danger under consideration is far from negligible. It therefore seems to me that it is dangerous to acknowledge the interest national groups have in their formative territories as a basis for territorial sovereignty. The last two centuries provide ample examples as to why this is so. We must here discern various types of cases. The first type consists of national groups whose sovereignty actually extends over their formative territories. However, some of those territories are vacant and could serve the basic needs of some other community. The second type consists of national groups whose sovereignty actually extends over their formative territories. Yet, some of these territories are actually inhabited by another group and serve its members' basic needs. The third type includes groups whose sovereignty actually extends over their formative territories, while the population of some of those territories is not homogeneous in its nationality. Cases of national groups who have no sovereignty whatsoever but have formative ties with vacant territories which are under the sovereignty of others form the fourth type. The fifth category comprises national groups that have no sovereignty, but have formative ties with territories that are inhabited and ruled by others. Most of these are of course abstractions from concrete examples, some of which I mentioned earlier. Should the Serbs hold on to their sovereignty over Kosovo with which they claim to have formative ties, despite the fact that its population is mostly Albanian? Should Transylvania be under Hungarian or Romanian sovereignty? Should the fact that the native minorities of North America do not enjoy sovereignty in any way determine whether their formative ties to territories there could serve as a basis for sovereignty rights over some of these territories, at least those which are vacant? Should the fact that the Jewish people did not enjoy sovereignty determine whether its formative ties to Eretz Yisrael could serve as a basis for sovereignty rights in those territories, even if those territories were populated? These cases demonstrate that, given the world's scarce territorial resources, the question of the territorial sovereignty of particular national groups can hardly ever be

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determined only on the basis of their formative ties with certain territories. The first two types of cases show that a formative tie can probably not be the basis for sovereignty even from the point of view of distributive justice and for the purposes of acquiring sovereignty and retaining it. The first case is of the type in which a group has sovereignty over its formative territories some of which are vacant. These vacant territories are required in order to satisfy the basic needs of other populations which do not actually reside there. Recognizing a formative tie as the basis for sovereignty in cases like this means, in the name of this tie, allowing one group to ignore the most urgent material interests of another group, namely, their interests in "amenities for dwelling and subsistence." This is so because sovereignty over a territory includes the authority to refuse any sort of use by other parties. (This does not, of course, entail the conclusion that in every case in which one party's sovereignty allows it to ignore the basic needs of another, the sovereignty of the former party is nullified. All that is claimed here is that formative ties cannot be sufficient grounds in and of themselves for justifying the creation of such situations.) The second case is that of groups exercising sovereignty over their formative territories, some of which are inhabited by other groups. To regard the formative tie as a basis for sovereignty in such cases would in effect mean to deny the interests of the other groups in self-government, since sovereignty over a territory also includes political rule over its population. Some typical contenders for historical rights in cases of the present type try to circumvent the fact that their position implies the denial of other peoples' rights to self-government, by expressing a willingness to grant certain limited governance prerogatives to the populations of the territories over which they continue to assert their dominance. The Serbs are currently being forced to make such an offer to the Albanians of Kosovo. In the last decade, Israel has been under pressure to make such an offer to the Arabs living in the West Bank. (Israel still refuses to grant the same rights to the Arabs living in East Jerusalem). We must bear in mind that this sort of attempt at circumvention cannot succeed, because what is offered are limited governance rights that would perpetuate the political inferiority of the populations in question. It should be noted that it is not logically possible to offer more than such limited governance rights while simultaneously endorsing the position that the formative ties form a sufficient basis for sovereignty rights. To offer the other group more in effect means to offer it either sovereignty or joint sovereignty. In either case, the first group's sovereignty or at least it's exclusive sovereignty is forfeited. Cases where historical rights are used to justify demands to restore a prior state of affairs are, of course, more problematic, at least with regard to demands by national groups to return and resume their sovereignty over currently inhabited territories as well as their presence in these territories. There are three reasons why this is more problematic. The most significant of these reasons is the danger of uprooting the territory's present inhabitants and turning them into refugees. How substantial this danger may be depends, of course, on the density of the population of this territory, the size of the returning population, the relations that develop between them, the relative political and military strength of these groups as well as other factors. Despite the fact that such dangers may not actually be realized, we may deduce from history that these dangers may indeed be significant. The second reason for rejecting formative ties as grounds for restoring former sovereignties over populated territories is that doing so means denying the rights of the current populations of these territories to self-government. I clarified this point earlier when discussing the possibility of viewing historical rights as grounds for acquiring and/or perpetuating sovereignties over territories populated by other national groups. The third argument against recognizing formative ties as grounds for re-

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storing old sovereignties over populated territories is that such recognition sometimes entails ignoring the formative ties that the present inhabitants have with the territory. It should be remembered that specific territories could play a formative role in the historical identity of more than one national group.27 Take for example the Maori and Pakeha in Aotearoa/New Zealand, or the Jews and Palestinians in Eretz-Yisrael/Palestine. To acknowledge only the formative role of Aotearoa in the Maori identity means to ignore the formative role New Zealand plays in the Pakeha identity. To acknowledge only the formative role that Eretz-Yisrael has in Jewish identity means to ignore the formative role of Palestine, in the Palestinian identity. Incidentally, it should be noted that this fact, namely, that specific territories do sometimes play a formative role in the historical identity of more than one national group, is the major disadvantage of historical rights arguments when understood under the formative territories conception, compared to the first occupancy conception. Unlike the latter conception, the formative territories conception of historical rights does not imply that the right in question is necessarily an exclusive one. This point should be emphasized as it reveals the elusive ambiguity of the notion of historical rights. If a territorial right is historical due to the primacy of the people in the history of the territory, then this people is the exclusive possessor of this right. This is so because (notwithstanding the difficulties concerning the individuation of territories), it is unlikely that more than one people was the first in the history of a given territory.28 Conversely, if the right is historical due to the primacy of the territory in the history of the people, this does not necessarily mean that the people in question is the exclusive possessor of such a right. A single territory could obviously be primary in the history of more than one people. In addition to the aforementioned examples of Palestine/Eretz-Yisrael for the Palestinians and the Jews, and New-Zealand/Aotearoa for the Pakeha and Maori, one might also cite Transylvania for Romanians and Hungarians, Sri Lanka for the Tamil and Sinhalese, Kosovo for the Serbs and Albanians, as well as many other cases. All this makes the ambiguity of the notion of historical rights a potential source for political self-deception or malicious manipulation. Those who most frequently resort to historical rights in order to claim sovereignty prefer (even if inadvertently) to oscillate between its two meanings, thus enjoying the best of both worlds. On the one hand, they seek the exclusivity attached to historical rights in the first occupancy conception. On the other hand, they wish to take advantage of the considerable normative power of historical rights when construed as rights to formative possessions. However, if historical rights are first occupancy rights, then they do indeed belong exclusively to one group but they are also, as shown earlier, normatively void for purposes of corrective justice and restitution. On the other hand, if historical rights are rights to formative possessions, then they do have a ceitain normative weight but they are not necessarily exclusive. The formative ties of the nation occupying the territory compete with the formative ties of the nation demanding restitution. Allowing restitution would mean ignoring the ties of the occupying nation. Let me return to the main discussion. As I noted earlier, questions of territorial sovereignty must mainly be decided by considering interests more urgent than people's in27 28

See O. O'Neill, "Justice and Boundaries", 77. The proviso concerning problems of individuating territories is important, for a people can claim to be the first occupant of a territory which it conceives as one individuated territory, while another people can claim to be first occupant on part of that territory, and regard this specific part as a separate territory. For example, the Sinhalese claim to be the first occupants of Sri Lanka, while the Tamil claim to be the first occupants of the northern part of the island.

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terest in not being cut off from the territories from which their national groups originated. Such interests are, firstly, their interest in "amenities for dwelling and subsistence" and then their interest in self-government. Given the limited territorial resources of the world, as well as its demographics, these interests do not allow much leeway for people's interests in their formative territories to serve as grounds for sovereignty rights. But does this imply that the fact that certain territories constitute formative territories for a given nation is normatively meaningless? I will now try to answer this question negatively. I will try to show that if considerations of self-determination can indeed serve as justification for granting territorial rights to national groups, then historical rights as rights to formative territories ought to play a role in determining the location of these rights. This would pertain to the acquisition of such rights, the preservation of such rights as well as, in some cases, for purposes of restitution. 3.2

Grounds for Determining the Site of Self-determination

The distinction between justifying territorial rights and determining their site was explained in my earlier discussion of historical rights as first occupancy rights. I shall adhere to the assumption I made there/namely, that peoples have territorial rights and that these are derivatives of the right to national self-determination. This justification for territorial rights does not address the question of determining the location where these rights should be realized. I would like to argue that if first occupancy can sometimes serve as grounds for resolving the issue of location for purposes of acquiring territorial rights, then, a fortiori, the formative links that a given people might have to a particular territory could also serve as such grounds. As noted above, the fact that a given group was the first to occupy a particular territory can serve as grounds for determining the location of this group's self-determination in that territory. This is so because the burdens that this will impose on others do not involve the type of sacrifices required by the duties corresponding to the actual right to territorial sovereignty. Determining the site of sovereignties, does not necessarily entail that sovereignty applies to all of the historical territories. Consequently, the burdens involved do not include the possibility that people may have to risk their interests in "amenities for dwelling and subsistence". They only involve the risk that people will have to abstain from realizing these interests in certain territories, that is, in the territories where others have attained realization of their own right to sovereignty. (However, they will have to abstain not from areas any larger than those from which they would in any case be excluded, if sovereignty rights are justly distributed among national groups.) If these sacrifices are considered acceptable in relation to first occupancy, then it is all the more acceptable in relation to the interest of peoples and their members in their formative territories. For peoples and nationally conscious individuals, the interest in not being severed from their formative territories touches on emotions that are inextricably intertwined with their conception of their identities. The expectations and emotions that accompany this matter concern a much deeper human level than the expectations and emotions stirred in first occupants. As we have seen, the expectations of the latter type, if indeed sound, are sound by virtue of considerations of objective rationality which, from a personal point of view, are totally neutral. Just the opposite is true of the emotions and expectations regarding the interest in formative possessions, these are interests tied to some of the deepest layers of identity, both in their origin (the percep-

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tion of selfhood) and in the consequences which result from the deprivation of these needs (feelings of alienation and longing). Perhaps there is more to it than that. Given the centrality of historical territories in the formation of national identities, there seems to be an inherent link between these territories and the right to national self-determination. Unlike the case of first occupancy, the territories in question are not only suitable for determining the location of this right. They are territories that are essential for determining this location. This inherent link is implied in the considerations used by certain contemporary writers to account for the distinction they make between rights to self-government and polyethnic rights. According to these writers, self-government rights, which enable members of a national group to live their lives as fully as possible within their national culture, apply to national groups living in their homeland. 9 Moreover, multicultural or polyethnic rights, according to which groups of common national origin may express their original culture while mainly living their lives outside that culture, apply in cases of national groups not living in their homeland. If living in the homeland may indeed be considered a criterion for the distinction between the cases in which self-government rights apply, and those in which polyethnic rights are warranted, then this presupposes that historical territories under their present conception are essential for the realization of self-determination. If living in the homeland were not a condition for exercising the right to self-determination, why would it then be improper to grant self-government rights in places where national groups have no formative ties, and to grant polyethnic rights in places where they do have such ties? The claim that formative territories are not merely suitable but also essential for the implementation of the right to self-determination also enjoys certain empirical support. History has shown that the chances for successfully implementing this right in territories to which national groups have no historical ties are very slim indeed. Experiments in this field are of course very rare. The only one known to me is the case of the Jewish people. The attempts to realize its right to self-determination outside its formative territories were failures; e.g., Britain's plan in East Africa (the "Uganda Plan"), and Stalin's attempt to establish Jewish autonomy in Birobidzhan. In contrast, the attempt to implement Jewish self-determination in territories to which Jews had historical connections did succeed.30 The force with which the interest in formative territories provides grounds for determining the location of self-determination is not its only advantage over the grounds that first occupancy provides for this purpose. It has additional advantages. One of them is that the formative tie is not dependent on whether the group demanding to realize its sovereignty at that particular site was really the first occupant in this territory. As noted earlier, most national groups cannot seriously make territorial claims on the basis of historical rights if they mean to claim that they were first to appropriate and live in the territories in question. As stressed above, most groups demanding territories in the name of historical rights were first occupants only relative to other groups that exist today. Their occupancy was usually acquired by means of crimes committed by them against the previous occupants of the territories in question and by bringing about the physical or at least cultural and political destruction of the latter. Thus, it is not clear why this justifies sovereignty rights, or even rights to determine the location of sovereignty. The interpretation of historical rights as based not on the primacy of given national groups in the history of given territories but rather on the primacy of these territories in the histo29 30

See W. Kymlicka, Multicultural Citizenship, mainly 26-31. Raz distinguishes between these two sorts of rights without resorting to homelands (J. Raz, Ethics in the Public Domain, ch. 6 and 8). See also A.D. Smith, Myths and Memories of the Nation, 219f.

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ries of the groups in question does not involve this moral entanglement. It is not dependent on the question of whether the group invoking historical rights was really the first group to inhabit the territory, or on the means by which it became first relatively to other groups that exist today. However, the main advantage of historical rights as rights to formative territories is that they are a serious candidate for determining the location of self-determination not only for purposes of acquisition and perpetuating existing states of affairs, but also for purposes of restoring former states of affairs. As explained earlier, first occupancy cannot do this. It can provide grounds for determining the location of self-determination only for the purpose of acquiring this site within the framework of distributive justice. Some of the reasons due to which first occupancy can serve as grounds for determining the location of self-determination, that is, reasons of economy, convenience and simplicity, lose their force when the first occupant ceases to occupy the territory in question. In contrast, the interest in formative territories is not tainted by this disadvantage. A national group's interest not to be cut off from its formative territories remains in force regardless of whether or not the group and its members are currently occupying these territories. This applies when members of the national group have sustained this tie despite physical separation. In this sense the physical separation between members of a national group and their formative territories is not dissimilar to the physical separation between people and their respective family members. Both constitute ties that can continue to be a part of one's being and identity even when they are not physically manifest. Hence, unlike the reasons supporting a national group's expectations as first occupants, a national group's interest in occupying their formative territories, does not necessarily disappear with the loss of the physical connection to these territories. Nevertheless, does the fact that formative ties do not lose their force with the loss of the physical connection constitute a sufficient reason for determining the location of national self-determination in cases where restoring former states of affairs is in question? Or does it merely constitute support in favor of this solution? Given the geo-demographic conditions of the world and given its history, it is likely that the cases in which national groups resort to their formative ties to territories as grounds for returning to these territories, will be cases where all the relevant territories are inhabited by members of other national groups in a way which does not allow exclusive or even dominant presence of the claimant group without placing at least some of the current residents of these territories in danger of being uprooted. From the normative standpoint, groups that aspire to have their sovereignty in sites located within their historical territories would find themselves in a situation very similar to the position they would have been in if they had resorted to their histories as grounds for their very right to sovereignty. They would be placing the current residents of these territories in danger of being uprooted, and in any case would be denying them of their right to self-rule. It must be noted that these geo-demographic problems cast a shadow not only on the possibility that the historical tie would have some practical impact on determining the location of the right to territorial sovereignty for purposes of restitution, but also require further qualification of my earlier comments about the possibility of viewing formative ties as grounds for locating national sovereignty for the purpose of perpetuating the status quo. In cases in which the historical territories of certain national groups cease to be solely or mainly populated by these groups (following migration, or war, or population transfers), doubts arise as to whether such territories can be subject to the territorial sovereignty of those 31

Historical Rights

Chaim Gans

See J. Waldron, "Superseding Historic Injustice", 17, note 13.

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groups. In fact, it is because of problems of this type that I elsewhere rejected the statist conception of the right to national self-determination and consequently the possibility that this right could ever be a basis for the right of national groups to territorial sovereignty.32 However, it must be noted that rejecting this possibility does not entail denying any normative value whatsoever to historical ties as formative ties. Such ties could still serve as a basis for establishing the location of self-determination under sub-statist conceptions of this right, both for purposes of acquisition and for purposes of restitution. Such self-determination does not involve sovereignty of the national group over the territory in which it exercises self-determination. It merely involves demographic and cultural presence that could be exclusive only if the historical territories of the group include vacant territories.33 This would not be possible if no such vacant territories existed. Accordingly, the formative ties of the Jewish people to Eretz-Yisrael could have justified its choice of that particular place in order to realize its national self-determination. However, since Eretz-Yisrael was not a vacant territory, not even at the inception of Zionism, the Jews were not justified in interpreting their right to self-determination there as a right to statist and territorial sovereignty. The ordinary justifications of the right to self-determination certainly could not justify the right of the Jewish people to statist and territorial sovereignty. As noted above, the historical rights of a given nation to a given territory, when understood as referring to the primacy of the territory in the history of that nation, are not always the exclusive rights of the claimant nation. The case of the Jewish people and Eretz-Yisrael is a paradigmatic case of this sort. As noted above, the territory in question is Palestine for the Palestinians. In my view, the only way in which the Jewish people could have exercised its right to self-determination in Eretz-Yisrael/Palestine is under a sub-statist conception of self-determination, which allows both Jews and Palestinians to realize their self-determination there.34 If what I said in relation to the Jewish example is correct, then historical rights as rights to formative territories are valid for purposes of restitution regardless of whether the national group that presently occupies the territory is the group that dispossessed the group demanding restitution. If nations have an equal right to sub-statist self-determination, and if it is correct that such a right is essentially linked with the concept of homeland, then the question of whether the nation which presently occupies the territory is the nation which caused the dispossession of the claimant nation does not make much difference in terms of the applicability of this right. The restoration of the group to its homeland thus seems to be a realization of a type of justice which is partly corrective and partly distributive. It is corrective because it revolves around restoring previous states of affairs, and it is distributive because the party which is required to make the concession is required to do so not because it wronged the other party, but because the 32 33 34

C. Gans, The Limits of Nationalism, ch. 3. On the sub-statist conception of self-determination see C. Gans, The Limits of Nationalism, ch. 3. This must be qualified with one reservation. During the 1930s and 1940s in Europe, the Jews' need for political independence was not only a consequence of the usual interests justifying self-determination. For many of them, this need was also motivated by the most basic human interests, namely, those in life, in bodily integrity, in self-respect, and in "amenities for dwelling and subsistence". These interests were violated in the most brutal manner. In this particular period it seems to have been justifiable or at least excusable for the Jewish people to try to achieve independent statehood. Its formative historical connection with Eretz Yisrael was good reason for this attempt to be located there rather than elsewhere. However, this could not justify all the means which were used by the Jewish community in Palestine for this purpose. It certainly cannot justify Israel's current attempts at territorial expansion in the name of Jewish historical rights.

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present distribution of the right to self-determination among national groups demands this concession. If historical rights as rights to formative territories have practical significance in cases where the current occupants of the territories have not wronged those demanding to return to the territory in question, then historical rights are certainly of practical significance if a wrong has been committed. There may be doubts concerning the right of the Jewish people to realize its self-determination in Palestine because the Palestinians did not originally wrong them. However, such doubts could not apply to the right of the aboriginal peoples of North America, Australia and New Zealand to restore their selfdetermination in territories from which they were dispossessed by the European settler nations. The latter are the ones who dispossessed the former from these territories. Even if the first occupancy and the formative tie of the aboriginal peoples did not justify the realization of their self-determination in all the territories which they in fact occupied and from which they were dispossessed by the settler nations, they surely justified their self-determination in some of these territories proportional to their size (and perhaps also their lifestyles) at different times. If, as a result of the dispossession, the aboriginal nations lost their physical ties with lands in which their self-determination should have been realized, the dispossessing nations must return some of these territories to their possession, either for their exclusive presence, or for their joint presence (demographic and cultural).35 They need not return all these territories, firstly because it is not certain that they all should have been under the aboriginal peoples' self-determination at the time of dispossession, and mainly because in the centuries that have passed since the original dispossession, the settler nations have themselves forged formative ties with some of these territories. Moreover, members of the dispossessing nations have their lives established there.36 The questions of what proportion of these territories ought to be restored to the native nations' possession, in what proportion of these territories should the groups reside side by side, and what proportion of these territories should be allocated to each group separately, are matters to be resolved by complex calculations which cannot be very accurate.37 My main concern here was firstly, to distinguish historical rights as rights to formative territories from historical rights as rights of first occupancy or original acquisition. Secondly, I attempted to show that historical rights as rights to formative territories are valid not only within the context of distributive justice and for purposes acquiring and preserving certain territorial rights, but also for purposes of restitution. The purpose of all the above was mainly to emphasize the concept of the homeland in the context of national self-determination.38 Recent judicial decisions made

in Australia and Canada are compatible with this approach that stresses the notion of homeland. In view of this emphasis on this notion, the aboriginal peoples are entitled to demographic and cultural presence in certain territories because of the identity relationship that they have with these territories.39 At least in some of these territories, they have to live with the settler nations because the latter also have identity relations and material needs which justify this.40 In sum, what I have salvaged of the historical rights argument is much less than what most proponents of historical rights could wish. The proponents of historical rights vacillate between their national groups' precedence in the histories of the territories over which they claim sovereignty, and the primacy of these territories in the histories of their national groups. They use historical rights as justification for the very right of sovereignty, and in general as grounds for claims to territorial expansion. I rejected the possibility that claims to historical rights in these two senses could serve as grounds for the very right to sovereignty. If my arguments on this matter have been persuasive, then historical rights cannot be grounds for the claims of national groups who enjoy self-determination and sovereignty to expand their sovereignty to additional territories. Among all the claims to a historical right, I have tried to salvage a consideration for determining the location of peoples' territorial rights. If used for the purpose of perpetuating an existing state of affairs, both the right of first occupancy and the right to formative territories could serve as grounds for determining the location of the territorial rights of national groups. If used for the purpose of restoring the status quo ante, it is only the right to formative territories that may be used as a consideration for determining the location groups' territorial rights. This consideration determines the location of such rights if they follow from the right to self-determination.

35 36 37

39

38

On the possibility of participatory presence see also M. Langton, "Estate of Mind", 73. See, e.g., P. Haveman, Indigenous Peoples' Rights in Australia, Canada & New Zealand, 4. These calculations must be based on principles of distributive and corrective justice. With regard to distributive justice, the present size of the groups, their lifestyles, and how deeply they identify with different parts of the territories in question must be considered. With regard to corrective justice, the damages suffered by the dispossessed group from the time of the dispossession must be considered. On the other hand, the fact that the present members and institutions of the dispossessing group are not personally responsible for the dispossession must be considered. However, it must be noted that the wrongs committed by their ancestors form a part of their collective identity. They might therefore feel responsible for the rectification of these wrongs. Each of these points requires a detailed and complex discussion that is beyond the scope of the present study. On this matter see J. Waldron, "Superseding Historic Injustice"; J.A. Simmons, "Historical Rights and Fair Shares"; G. Sher, Approximate Justice, ch. 1; D. Lyons, "The New Indian Claims and Original Rights to Land". On the importance of homelands in national identities and for national self-determination see also D. Miller, "Secession and the Principle of Nationality", 68; M. Moore, The Ethics of Nationalism, 167,176,191.

40

On the importance of traditional lands for the identities of aboriginal peoples see J. Borrows, "'Landed' Citizenship"; J. Tully, An Approach to Political Philosophy, 153f; R. Poole, Nation and Identity, 131. R.H. Bartlett, "Native Title in Australia", 417f, emphasizes the historical and traditional identity links of the Australian aborigines to their lands as the central reason for the change that the Mabo no. 2 case (Mabo v. Queensland (no. 2) (1992) 175 CLR1) brought about with regard to their title in their traditional lands. He emphasized the centrality of their lands in their identities, and not their primacy in these lands relative to the European settlers, as the reason for acknowledging their title. Other writers (such as J. Webber, "Beyond Regret", 72ff) emphasize the constitutional significance of the Mabo no. 2 case and similar recent decisions (Delgamuukw v. British Columbia (1997) 153 DLR (4th) 193 (SCC)). They argue that these decisions do not only pertain to property law but also to the constitutional issues of self-determination. Self-determination is linked with the formative role that the traditional lands have in the identities of the aboriginal nations. The present writers also emphasize that for these reasons the settler nations must share sovereignty with the native nations. See also R. Poole, Nation and Identity, 138.

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Bibliography Bartlett, R.H., "Native Title in Australia. Denial, Recognition, and Dispossession", Indigenous Peoples', Rights in Australia, Canada & New Zealand, ed. P. Haveman, Oxford University Press, 1999. Bentham, J., "Principles of the Civil Code", The Theory of Legislation, ed. C.K. Ogden, Routledge and Kegan Paul, 1931. Borrows, J., "'Landed' Citizenship. Narratives of Aboriginal Political Participation", Citizenship in Diverse Societies, ed. W. Kymlicka and W. Norman, Oxford University Press, 2000. Brilmayer, L., "Consent, Contract and Territory", Minnesota Law Review 74 (1989). Dray, W.H., Philosophy of History, 2nd edition, Prentice Hall, 1993. Gans, C , The Limits of Nationalism, Cambridge University Press, 2003. Hart, H.L.A., "Are There Any Natural Rights?", Theories of Rights, ed. J. Waldron, Oxford University Press, 1984. Haveman, P., Indigenous Peoples' Rights in Australia, Canada & New Zealand, Oxford University Press, 1999. Hume, D., A Treatise of Human Nature, Oxford University Press, 1973. Ivison, D., P. Patton and W. Sanders (eds.), Political Theory and the Rights of Indigenous Peoples, Cambridge University Press, 2000. Kristof, L.K.D., "The State-Idea, The National Idea and the Image of the Fatherland", Orbis II (1961). Kymlicka, W., Multicultural Citizenship. A Liberal Theory of Minority Rights, Clarendon Press, 1995. Langton, M., "Estate of Mind. The Growing Cooperation between Indigenous and Mainstream Managers of Northern Australian Landscapes and the Challenge for Educators and Researchers", Indigenous Peoples' Rights in Australia, Canada & New Zealand, ed. Haveman, Oxford University Press, 1999. Lyons, D., "The New Indian Claims and Original Rights to Land", Reading Nozick. Essays on Anarchy, State, and Utopia, ed. J. Paul, Basil Blackwell, 1982. Masaryk, T.G., The Making of a State, George Allen and Unwin, 1927. Mehr, F., A Colonial Legacy. The Dispute over the Islands of Abu Musa, and the Greater and Lesser Tumbs, University Press of America, 1997. Miller, D., "Secession and the Principle of Nationality", National Self-determination and Secession, ed. M. Moore, Oxford University Press, 1998. Moore, M., "The Territorial Dimension of Self-determination", National Self-determination and Secession, ed. M. Moore, Oxford University Press, 1998. Moore, M., The Ethics of Nationalism, Oxford University Press, 2001. Nozick, R., Anarchy, State and Utopia, Basil Blackwell, 1974. O'Neill, O., "Justice and Boundaries", Political Restructuring in Europe. Ethical Perspectives, ed. C. Brown, Routledge, 1994. Poole, R., Nation and Identity, Routledge, 1999. Rawls, J., A Theory of Justice, Harvard University Press, 1973. Raz, J., The Morality of Freedom, Oxford University Press, 1986. Raz, J., Ethics in the Public Domain. Essays in the Morality of Law and Politics, revised edition, Clarendon Press, 1994. Rousseau, J.J., The Social Contract, book I. Sharp, A., Justice and the Maori. The Philosophy and Practice of Maori Claims in New Zealand since the 1970s, 2nd edition, Oxford University Press, 1997.

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Sher, G., Approximate Justice. Studies in Non-ideal Theory, Rowman & Littlefield, 1997. Simmons, J.A., "Historical Rights and Fair Shares", Law and Philosophy 14 (1995). Smith, A.D., "States and Homelands. The Social and Geopolitical Implications of National Territory", Millennium 10 (1981). Smith, A.D., National Identity, Penguin, 1991. Smith, A.D., Myths and Memories of the Nation, Oxford University Press, 1999. Stoicescu, N., The Continuity of the Romanian People, Editura Stiintifica si Enciclopedica, 1983. Tacitus, The Annals of Imperial Rome, Penguin Classics, 1973. Tully, J., An Approach to Political Philosophy. Locke in Contexts, Cambridge University Press, 1993. Tully, J., Strange Multiplicity. Constitutionalism in an Age of Diversity, Cambridge University Press, 1995. Viroli, M., For Love of Country. An Essay on Patriotism and Nationalism, Oxford University Press, 1995. Waldron, J., The Right to Private Property, Clarendon Press, 1988. Waldron, J., "Superseding Historic Injustice", Ethics 103 (1992). Webber, J., "Beyond Regret. Mabo's Implications for Australian Constitutionalism", Political Theory and the Rights of Indigenous Peoples, ed. D. Ivison, P. Patton and W. Sanders, Cambridge University Press, 2000.

101 Collective Responsibility for Historical Injustices1

Janna Thompson

Contents 1.

Historical Titles

102

2.

Theories of Collective Responsibility

103

3.

Posterity-binding Commitments

107

4.

Respect for Nations

110

5.

Advantages of the Theory

112

When the Prime Minister of my country (Australia) is asked to make an official apology for the injustices inflicted on Aborigines in the last two centuries of colonization, he customaiily replies that present generations of citizens should not be expected to take responsibility for the deeds of past generations.2 He is expressing an attitude to demands for reparation for historical injustice that many people are inclined to share. If it is unjust to punish people for crimes committed by others, then why isn't it equally unjust to demand an apology or reparation from those who had no role in committing the wrongs? Even if we allow that the debts of parents can sometimes be visited on their children this does not explain why all citizens of a certain category - for example all non-Aboriginal Australians - should apologize or make reparation. Many citizens of a nation are likely to deny that they possess an inherited debt - either on the grounds that they or their ancestors were recent immigrants to the country or because their ancestors had no role in committing the wrong.3 This chapter defends the view that historical obligations and entitlements exist. A historical obligation is a moral responsibility incurred by individuals as citizens, owners or executives of corporations, or members of some other inter-generational association or community, as the result of the commitments or actions of their predecessors. Those to whom this obligation is owed have a historical entitlement. The relationship between past actions and present responsibilities or entitlements is established by a moral argument. 'We ought to keep the treaty made by our national predecessors because treaties Some parts of the argument of this paper were presented in "Historical Obligations", and a detailed account of my theory is presented in Taking Responsibility for the Past. John Howard, Speech to the Reconciliation Convention in Melbourne, Australia, 26 May, 1997. Howard has repeated the same opinion on many occasions. Other politicians and commentators have expressed similar views. Committing on demands that the US government make an official apology for slavery, C. Paglia, writes that 'an apology can be extended only by persons who committed the original offence1 ("Who is Really to Blame for the Historical Scar of Black Slavery?", 353). Paglia (ibid., 353) adds that her grandparents were born in Italy and had nothing to do with the African slave trade.

102 Janna Thompson

ought to be honored.' 'We ought to make recompense for the dispossession of indigenous people because this was unjust, and injustice require reparation'. The past is a source of obligation or right not merely because of the effect of past deeds on present conditions. Historical obligations and entitlements are duties or rights defined by past happenings - by the fact that a treaty was signed or an unjust deed done. Historical obligations belong to the more general category of 'past-referring obligations' which include the duty to keep promises and honor contracts, to pay debts and make compensation for wrongs done, and to punish only the guilty. Past referring obligations are historical when those who are supposed to be responsible for keeping the promise, honoring the contract, paying the debt or making reparation are not the ones who made the promise or did the deeds but their descendants or successors. In many cases those to whom historical obligations are owed are not the victims themselves but their descendants or successors. These successors are claiming a historical entitlement. A historical injustice, as I will understand it, is a wrong done either to or by (or both to and by) past people. I will focus on claims for reparation for historical injustices which, like many of those done to indigenous people, occurred before most people now living were born or came to maturity. And I will be concerned in this paper only with wrongs done by and to 'nations' - understood in this paper to be politically organized inter-generational communities (but not merely nation-states). 1. Historical Titles In most philosophical discussions the existence of historical entitlements and obligations is predicated on the existence of 'historical titles' - that is, on historically acquired rights of property or possession that are passed on to people of succeeding generations. If someone takes possession of a good that was before unowned, says Robert Nozick, then he or she has thereby acquired a right of possession. If she chooses to give or sell it to someone else then by this act she transfers the entitlement to the recipient. If a person's right of possession is violated then she has a right to 'rectification' - to be returned, so far as this is possible, to the situation that would have existed if the injustice had not been done.4 A historical entitlement to rectification exists, according to this account, if and only if someone's historical title has been unjustly violated. This person, or her descendants or successors, has a right to get back what was taken, or an equivalent in compensation. The existence of her entitlement is a sufficient reason for requiring illegitimate possessors to give it back. There is no need to establish guilt or the complicity of ancestors. According to this account, historical obligations depend wholly on the existence of a historical entitlement. Whether historical titles exist at all is a controversial issue. Whether they persist long enough to justify reparative claims made by community members long after the injustice has occurred is even more doubtful.5 Even if titles persist in some form, changed circumstances are likely to make it unjustifiable for heirs to demand back all of what their ancestors once possessed.6 Most discussions of Nozick's view of rectification have 4 5

6

R. Nozick, Anarchy, State, and Utopia, 150-3. J. Waldron presents some objections to the theory of historical title in Right to Private Property, ch. 6. D. Lyons, 'The New Indian Land Claims and Original Rights to Land", argues that the claim of Indians to the land of their ancestors cannot be derived from an original title. Waldron, "Superseding Historical Injustice", argues that the right of the dispossessed to land they or their ancestors possessed is superseded in the course of time. A.J. Simmons, who defends the theory of historical title, nevertheless argues that those making

Collective Responsibility for Historical Injustices

103

concentrated on the issues of whether historical titles exist or persist. However, the assumption that historical obligations amount to the rectification of property rights also needs to be questioned. Unjust acts, Bernard Boxill insists, do not merely violate rights to possession. They are demonstrations of disrespect, and he thinks that reparation requires 'an acknowledgment on the part of the transgressor that what he is doing is required of him because of his prior error', as well as the return, where possible, of whatever was unjustly taken. Those who think it appropriate to demand or give an apology for historical injustice subscribe to this view of reparation. The belief that an act of contrition is necessary seems particularly appropriate when those wronged suffered not merely or mainly from loss of a possession, but from evils of another kind - violations of political independence, destruction of cultural life or other injustices that involve what Boxill identifies as a lack of respect. Such wrongs are beyond the scope of a theory of historical title.8 Moreover, acknowledgment of wrong done plays no role in rectification, as Nozick understands it. But those who agree with Boxill - those who demand or think that they ought to give an apology for historical injustices - are faced with the problem of explaining why present people can apologize, or in some other way show contrition, for acts done by others. There is another respect in which a theory of reparation which predicates obligation on the existence of a title is counter-intuitive. According to this theory, those now in possession of property that belongs to someone else have an obligation of return. For example, those who now have their homes or businesses on land illegitimately taken from Indian tribes ought to give it back. The question is not merely whether the tribe really has a better claim than guiltless people who have come to depend on the land for the livelihood. Even if we do think that the land should be given back, it seems unfair that those now in possession should be forced to shoulder the whole burden of reparation. But if we insist that the government should compensate those who have to give up property to satisfy the claims of indigenous people then we are tacitly accepting the idea that present citizens are collectively responsible for reparation - and this requires justification of another kind. These considerations suggest that a theory of reparation cannot concentrate merely on the question of whether a historical title exists. Responsibility for acts of reparation, it seems, is a collective responsibility shared by all citizens or citizens of a certain category. The problem is explaining how this responsibility can exist. 2.

Theories of Collective Responsibility

Nations, tribes, and similar political entities endure through time and down the generations. They can pursue long term policies and make promises that are supposed to be binding on future citizens, and for this reason are often treated as if they were individuclaims may be entitled only to part of what their ancestors lost. See "Historical Rights and Fair Shares". B. Boxill, 'The Morality of Reparation", 118. When Konrad Adenauer, the Chancellor of post war Germany, offered to pay reparation to Israel for the persecution, slaughter and dispossession of Jews, neither he nor anyone else supposed that any payment could compensate for the harm done. The crimes were beyond rectification. Nevertheless, he believed that an act showing that Germans acknowledged the seriousness of past wrongs was morally (as well as politically) required. For an account see E. Barkan, The Guilt of Nations, ch. 1.

104 Janna Thompson

als. So long as we think of them in this way it seems no more difficult to explain why citizens have historical obligations and entitlements than it is to explain why ordinary individuals have duties in respect to their past actions or can be owed debts by others. Indeed, most people accept that they have a responsibility for keeping treaties made by past governments of their nation. If this burden is a legitimate one, then why should they not also accept the burden of reparation for past misdeeds of their nation? The problem is that nations are not really individuals, and it is a fundamental issue of justice how the benefits and burdens that result from their actions and policies should be distributed among their members. Those who deny that they have historical obligations for reparation believe that it is unfair to burden them with reparative responsibilities. Even treaties raise the issue of responsibility. What gives a government the right to bind citizens of the future to an agreement that they have had no say in making? Why should the democratic will of a people be limited by agreements of their predecessors? A theory of historical obligation has to answer these question as well as answering the objections of those who refuse to accept the burden of making reparation for their nation's historical wrongs. An acceptance of historical obligations does not seem to follow simply from the recognition that nations are intergenerational. But if we turn to what philosophers have said about collective responsibility the case seems no better. Standard accounts of why members bear moral responsibility for activities of their group reinforce the idea that there is no obligation without participation. These theories have the objective of determining whether and to what extent individuals are responsible for the deeds of their leaders or other members of their group - whether, for example, ordinary citizens bear some responsibility for the involvement of their country in an unjust war. Almost all of them agree that it would be unjust to hold individuals liable for actions which they had no possibility of influencing. Joel Feinberg, for example, lists 'opportunity for control' as one of the necessary conditions for liability for an action or practice of a group.9 'Individuals are responsible for and creditable with only those negativities and positivities that they themselves engender through their own suitably deliberate actions,' says Nicholas Rescher.10 His conception of responsibility might be criticized for being too narrow. Let us agree with the widely accepted view that citizens of a democracy - even ones who don't vote or pay attention to politics - bear some responsibility for the wrongs done by officials of their state. They could have been more informed and politically active; they could have spoken out against injustice. But even this wider conception of responsibility does not provide a justification for historical obligations. Present people had no way of influencing the acts of past generations - no way of objecting to agreements they made or injustices that they did. If moral responsibility depends on liability, and liability on control or participation, then historical obligations do not exist. However, defenders of historical obligation often have in mind a different idea of how members of nations acquire responsibilities. The wealth of nations, in many cases, has been built on past injustices. Non-indigenous Americans, Australians, New Zealanders, South Africans, and Canadians are now benefiting from injustices done to indigenous communities - from the consequences of broken treaties, from land that was seized and settled. 9 10

J. Feinberg, "Collective Responsibility", 687. He briefly discusses, but seems to dismiss, a way in which individuals might have responsibility without control (687f)N. Rescher, "Collective Responsibility", 52. Rescher does not allow for omissions - cases where individuals are culpable because of their failure to act. But cases of negligence could be incorporated into the definition without interfering with its essential point.

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105

If the Aborigines had not lost their land, and had maintained their traditional relationship with the land on which their well-being depended, then white Australian society could not have developed in the way it has, whites would not enjoy the high levels of well-being they enjoy, Aborigines would not have suffered significant losses in self-esteem, and nor would they have been so culturally devastated. ' The beneficiaries of this injustice, the authors go on to say, have a duty to repair the injuries suffered by the victims. There are two ways of understanding this argument.12 According to the first, those who have gained through social interactions of the past should share their benefits with those who have suffered loss. The fact that the losses suffered by indigenous people are the result of injustice plays no essential role in the argument so understood. Beneficiaries would have just as strong a reason for sharing if their gains, and the losses of others, had been the result of economic contingencies for which no one could have been blamed. What this interpretation of the argument calls for, in other words, is compensation for disadvantage - not reparation. Compensation of this kind is required by many theories of equity - and so the common belief that beneficiaries of past injustices owe something to people who have been harmed is probably best accounted for in this way. The second interpretation insists that the beneficiaries of historical injustices are the receivers of stolen goods. They have been unjustly enriched. Justice demands the return of these goods to their rightful owners, or at least appropriate compensation. However, this interpretation is predicated on the existence of historical titles and raises all of the questions and difficulties associated with this notion. And it does not give us what we need - an idea of collective responsibility that makes the existence of collective historical obligations plausible. Standard philosophical ideas about collective responsibility are individualistic - they concentrate on the contributions of individuals and often dole out responsibilities in proportion to contribution. This approach seems to ignore an important psychological fact. People sometimes do feel guilt or shame for injustices committed by members of their group, or are made uncomfortable by the knowledge that they are benefiting from past injustice. Many citizens are sorry about the wrongdoing of their predecessors and are prepared for this reason to shoulder the burden of reparation. An account of collective responsibility that takes these responses seriously and tries to explain them seems a more promising direction to take in the search for a justification of historical obligations. Alasdair Maclntyre thinks that the explanation for such responses comes from the fact that we are bearers of a particular social identity. I am someone's son or daughter, someone else's cousin or uncle ... I belong to this clan, that tribe, this nation. Hence what is good for me has to be the good for one who inhabits these roles. As such I inherit from the past of my family, my city, my tribe, my nation, a variety of debts, inheritances, rightful expectations and obligations. These constitute the given of my life, my moral starting point. The self, he says, has a history that stretches back before her birth. And he contrasts this 'narrative view of the self with the viewpoint of modem individualism which detaches the self from all social relationships and denies that a person can be held respon-

11 12

J. Bigelow, R. Pargetter, and R. Young, "Land, Well-Being and Compensation", 335. Most discussions, it seems to me, run together the two interpretations. Bigelow, Pargetter, and Young do so in "Land, Well-being and Compensation".

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sible for 'what his father did or from what his country does or has done'.1 The modern individualist is likely to deny historical obligations, but those with a narrative view of themselves cannot. Maclntyre makes a person's special obligations depend on the nature of his or her self. But not all selves are narrative selves, and those that are will tell many different stories. Maclntyre himself thinks that individualist selves are becoming more common in the modern (or post-modern) world, but these are the people most likely to deny that they have communal or historical obligations. Even those who do regard themselves as attached in an essential way to others are likely to have different ideas about the relations that form their identity. Some people regard their family as central to their lives but have little interest in their nation. The immigrant may continue to derive his selfidentity from the land of his ancestors and have no sense of responsibility for the inheritance of his new nation. Nor does acceptance of responsibility necessarily follow from identification. A person can locate herself within a history and identify with a group without thinking that she is obliged to do anything about the commitments or injustices of past people. And there is no necessary connection between feeling shame or regret for the sins of predecessors and taking responsibility for reparation. Maclntyre's narrative view of the self can account for why some people are prepared to take responsibility for the past of their community, but it is not able to establish that all members of nations or states have historical obligations for the deeds of their predecessors. The possibility remains that we acquire commitments and obligations, including obligations in respect to the past, through participation in communal activities. Margaret Gilbert thinks that a joint commitment comes into existence when people participate in joint activities or signal their readiness to participate. Having shown through their actions that they have entered a commitment, they constitute with others a plural subject and acquire responsibilities for fulfilling its intentions.14 Most of Gilbert's examples of joint commitment focus on personal relations. By using conventional gestures or words to signal that I accept an invitation to dance I thereby commit myself to forming a couple for that purpose. But she thinks that we also acquire joint commitments as members of more enduring plural subjects like nations or states. We signal our readiness by participating in public events, voting in elections, or even by our use of language - by the use of 'we', as in 'We are engaged in a war against terror'. Once individuals have committed themselves to being part of such a plural subject they acquire responsibility for its deeds. Having this responsibility does not depend on participation, and lack of culpability is no reason for denying obligation. Since a nation or state is an ongoing, inter-generational plural subject, joint commitment means sharing responsibility for its past. Gilbert wants to explain why people sometimes feel guilty for what their nation has done even when they bear no responsibility as individuals. But her position also implies that people who don't feel guilt may nevertheless have obligations, including historical obligations, as citizens. AJ. Simmons objects that there is a large gap between personal relations that give rise to legitimate expectations and the relations of individuals in a large, impersonal society.15 By signaling a willingness to dance you clearly commit yourself to becoming part of a dance floor couple. It is not so plausible to suppose that members of a political society through their actions or by their acceptance of certain ways of speaking incur 13 14 15

A. Maclntyre, After Virtue, 220. M. Gilbert, "On Feeling Guilt for What One's Group Has Done". See also her "Group Wrongs and Guilt Feelings". A.J. Simmons, "Associative Political Obligations", 258.

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obligations as participants in a plural subject. His objection seems right. In face to face relationships people can make it clear to each other what commitments they have made and what each is entitled to expect, especially if they are following well understood conventions. The mere fact that people participate in public events or use 'we' when speaking of their nation is not enough to establish that they are participants in a joint commitment. Even if these activities did indicate commitment they would not tell us what responsibilities people have accepted or exactly whom they are committed to. They may be signaling a commitment to the people of their nation, but not a readiness to fulfill the intentions of leaders, still less to take responsibility for what leaders or officials did in the past. As far as commitment is concern, the use of 'we' is ambiguous and its implications are unclear. Are there actions that do signal this commitment? Expressing pride in the past deeds of the nation may be one. 'Can one accept the benediction and reject the curse? Can one accept the legacy and avoid the duty of paying its debts?'16 But this point, though it may be correct, does not get us very far. We have returned to the problems associated with Maclntyre's conception of the narrative self. Having responsibility is made to depend on a response that many people belonging to a nation - recent immigrants, for example - may not share. And worse, it is not a response that requires any particular action. Those who experience it may think that the very act of feeling sorrow, guilt or remorse is sufficient, and that reparation is not required. This discussion of views about collective responsibility does not exhaust the field. Nor am I likely to have proved to everyone's satisfaction that Maclntyre, Gilbert, and others are wrong. Nevertheless, the difficulties encountered by both individualist and 'collectivist' ideas of collective responsibility indicate that there is good reason for looking for another approach. 3. Posterity-binding Commitments I will begin my presentation of this alternative account by explaining why presently existing citizens or members of nations are obliged to keep the treaties of their predecessors. Understanding why this historical obligation exists will put us in a better position to understand why citizens have an obligation to make reparations for historical violations of agreements and other wrongs committed against nations. All arguments begin with assumptions. I will take it for granted that the Vienna Convention on the Law of Treaties rightly regards a treaty as having the legal and moral force of a promise or contact.17 A promise is supposed to entitle those to whom it is made to trust that it will be kept. Violation of a treaty, like the violation of a promise, is the breaking of a trust - which counts as an injustice even if the recipient of the promise does not suffer loss. The obligation to keep a promise is a duty all things being equal, and a complete account of promise or treaty making would have to define the circumstances which can make commitments void or inapplicable (as the Vienna Convention does in its codification of international conventions concerning treaties). But in the absence of these circumstances it is assumed that states and nations ought to honor their agreements.18 16 17 18

J. Jedlicki, "Heritage and Collective Responsibility", 55. Vienna Convention on the Law of Treaties. Treaty violations are common occurrences in the affairs of nations. But this does not detract from their moral force. Indeed the very existence of a treaty system depends upon the prevalence, at least

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I will also assume that citizens of democratic nations, or nations that provide their members with means of controlling the behavior of leaders or governments, are collectively responsible for the policies and political actions of their representatives and officials. This includes a collective responsibility for keeping agreements that their representatives make. The issue is how these citizens can have an obligation to honor agreements that were made not by their representatives but by leaders and officials of the past. I do not assume any particular account of why citizens have collective responsibilities. Collectivist accounts of collective responsibility, as we have seen, do not relieve us of the task of justifying historical obligations. But the standard, weaker account will suffice. By their nature treaties are 'posterity-binding': they are meant to impose obligations on our political successors as well as ourselves. To be perpetually valid, or even valid for a reasonable period of time, a treaty has to bind citizens of the future. Those with whom it is made are being given an entitlement to trust that this will be so. This means that if we endorse such an agreement then we must suppose that our successors have an obligation to keep it - at least so long as it can be regarded as applicable and fair. The problem is not merely that our control over what future people will do is limited. The primary issue is moral. What gives us the moral entitlement to perform an act that imposes obligations on future people? And why should these future people regard themselves as bound by our agreements? Suppose that through our elected representatives we are making a posterity-binding treaty with another community. Let us assume that everyone concerned is sincere and morally responsible. We intend to keep the agreement and have the capacity to do so. But our sincerity and situation are not sufficient to give us the right to make an undertaking on behalf of our successors. Having a moral entitlement to make such a posteritybinding commitment, I suggest, depends on this act taking place within the framework of a moral practice that requires us to take responsibility for fulfilling posterity-binding commitments of our political predecessors. That this is so follows from a basic assumption about morality - that 'like cases ought to be treated alike': that making an authoritative moral judgment about what another should do means accepting a moral practice that requires (among other things) that you accept that the same judgment would apply to anyone who is in a relevantly similar situation - including to yourself.19 Moral prescriptions associated with treaty making are different in one respect from more familiar judgments about what we ought to do. The people on whom we are imposing duties are our successors, and not just our contemporaries. This means that 'treating like cases alike' commits us to accepting similar obligations in cases where we are the successors. Why not say that the possibility of making a posterity-binding commitment requires only that we take steps to ensure that our successors will carry it out? We could make a law designed to force them to do this, or even enshrine the treaty in the constitution of our political society. (Making treaties into law is in fact a standard practice in many countries.) We could indoctrinate our children to honor our commitments. The problem with these suggestions is not merely that they might fail. The issue is not the effectiveness of the means we might use to induce our successors to do what we want. What

19

as a guiding idea, of what the Convention calls 'good faith'. 'Every treaty in force is binding upon the parties to it and must be performed by them in good faith' (Article 26 of the Vienna Convention on the Law of Treaties). R.M. Hare, in Freedom and Reason argues for the centrality of this rule to moral reasoning and discusses its application.

T

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needs to be explained is how we can presume an entitlement to impose a moral obligation on our successors. What gives us the authority to say that they ought to honor our agreements. The answer is that our moral authority is predicated on our accepting the duty to honor agreements of our predecessors. Having this commitment, it should be noted, is not dependent on our actually making posterity-binding agreements. It follows simply from a belief that if we were to make such an agreement then our successors ought to keep it. This explanation of why we have a historical obligation to honor treaties made by our predecessors may seem like an unnecessarily complicated way of defending what almost everyone concedes: that nations ought to keep their promises. The complexity is justified by special problems raised by historical obligations and the fact that other ways of dealing with these problems do not seem adequate. My account does not presuppose an identification of citizens with the history of their nation. But nevertheless it obliges them to see themselves as participants in inter-generational relations in which each generation inherits obligations from its predecessors and passes on obligations to its successors. I have been assuming, however, that we are morally responsible citizens, that we intend to keep the agreements our representatives have made and think that our successors ought to keep them. But suppose that we intend to deceive. We have no intention of keeping our agreement and no desire to bind our successors. Does this mean that through duplicity we avoid incurring an obligation to honor the commitments of our predecessors? The issue raised by this question is particularly relevant to our actual situation. For we have good reason to believe that in many cases our predecessors did not intend to honor their treaties - particularly those made with indigenous nations. In other cases the motivations of our predecessors are unknown and now probably unknowable. People do not escape incurring obligations by promising insincerely. There is no question that our predecessors committed injustices if they made promises they did not intend to keep. The more difficult issue is whether we have an obligation to fulfill their insincere promises. The answer depends on how we interpret the 'treat like cases alike' requirement: whether it requires us to fulfill the intentions of our predecessors or to keep their promises. How we interpret this rule depends in turn on what we, as morally responsible citizens, think that our successors should do. The answer seems clear. We think they ought to honor our agreements not because this is what we intend them to do - not out of regard for our desires or other psychological states - but because we think our agreements should be honored. In other words, we are assigning them an obligation to honor our commitments, not a duty to fulfill our intentions. And so the appropriate and relevant description of our obligation in respect to the agreements of our predecessors is to fulfill their promises. Their intentions, good or bad, are not relevant - at least not to the determination of what it means to treat like cases alike. What is morally important is not the state of mind of those who made a commitment, but the fact that it was made. This way of reasoning about our historical obligations has the obvious advantage of relieving us of problems associated with the intentions of past people. It does not require us to respect or fulfill their intentions. It does not require that we know what their intentions were. Moreover, it puts us in a good position to deal with another problem concerning intentions. A question that often arises when dealing with agreements from the past is how we should interpret their terms or determine their validity. Should we interpret and apply them according to the intentions of those who made them (so far as

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we know what they were)? But to do so may require us to act in a way we think to be unjust - either because the terms of the treaty were meant to favor the interests of the powerful, because circumstances have changed, or because our predecessors' conception of justice was different from ours. Or should we interpret and apply the agreement, so far as we can, according to contemporary ideas of justice? My account of why we have an obligation to keep the agreements of our predecessors favors the second idea of how agreements should be interpreted and applied. We think our successors ought to keep our commitments not simply because these commitments were made but because we regard the terms as fair and honorable. But we know that circumstances change and that our ideas about what is fair are not above criticism. The duty we assign to our predecessors is to be fair - to interpret and apply our agreement in a just way according to the circumstances. We have the same obligation in respect to the agreements of our predecessors - whether we believe that they were trying to be fair or not. By accepting the moral practice of making posterity-binding commitments citizens are also accepting the obligation of making reparation for violations of commitments. If people fail to honor an agreement without a legitimate excuse then they owe to those whose trust has been violated some form of recompense (if only an apology). If you were to make a commitment but deny that you have any reparative obligations for failing to fulfill what you promised, you would not merely be acting in bad faith. You would be undermining your entitlement to make the commitment. Deceitful people acknowledge their responsibilities but fail to fulfill them. They are acting in bad faith. But refusing to recognize that a reparative obligation exists does not merely make agents immoral. It removes them from the practice of commitment making altogether. When commitments are posterity-binding, the practice associated with them requires that all the duties they entail be accepted by the successors of people who made them. Intergenerational commitments create intergenerational obligations. The practice of making these commitments thus requires our successors to make recompense for violations - including our violations - of our posterity-binding commitments should they occur. And we have a corresponding obligation to make reparation for the violations of our predecessors. This reasoning does not explain what this duty involves, but it explains why it exists.

4. Respect for Nations What if citizens choose not to engage in, or approve of, the practice of making intergenerational commitments? Radical democrats or extreme individualists might consistently refuse. They might argue that no one should be burdened with the responsibility for the acts of past people - neither themselves nor their successors. A defense of historical obligations is not complete without an explanation of why there should be such commitments in the first place. Answering this question is not only a necessary step in an argument for the existence of historical obligations. It is also vital in some of the debates concerning injustices done to indigenous nations. British and Australian governments systematically refused to make treaties with Aboriginal communities in Australia. Appealing to the fiction of 'terra nullius' - the idea that the country was empty of people and available for settlement - governments appropriated the land and opened it to pastoralists, farmers and prospectors. Aborigines were pushed out of territory that their people had occupied for thousands of years, and when they resisted they were

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punished. None of these actions violated a treaty, but they clearly count as injustices and a theory that accounts for the existence of historical obligations has to encompass them. A theory of historical obligations must also encompass injustices to communities that are not directly associated with treaty making - for example, destruction of culture and subversion of political independence. However, the first step in providing such an account is to explain why commitment making is sometimes obligatory. The practice of treaty making presupposes that the parties regard each other as worthy of respect: if they respect each other then they will also accept that their relations ought to be governed by commitments that all can agree are just. This is the conclusion of an Eighteenth Century British royal commission that issued the following proclamation on the legal position of the Indian nations of the New World. The Indians, though living among the king's subjects in these countries, are a separate and distinct people from them, they are treated as such, they have a policy of their own, they make peace and war with any nation of Indians, when they think fit, without control from the English ... So that from thence I draw this consequence, that a matter of property in lands in dispute between the Indians as a distinct people and the English subjects, cannot be determined by the law of our land, but by a law equal to both parties, which is the law of nature and nations; and upon this foundation, as 1 take it, these commissions have most properly issued.20 The Commission concluded that relations between settlers and Indians had to be governed by 'a law equal to both parties'. Since the British in the New World could not help but interact with Indian nations, to encroach on their lands, 'the law of nature and nations' required them to reach such understandings and to abide by the agreements they made. Waldron in reaches a similar conclusion, starting from a consideration of the obligations imposed on communities by proximity.21 The Commissioners picked out as conditions for respect the characteristics that make it possible for an inter-generational political societies - what I call nations - to make and keep their contracts, to determine and pursue an objective, and to be trustworthy nations in a world of nations. Most contemporary theorists think that there is a further condition that nations must fulfill in order to be worthy of respect. Michael Walzer in explaining why aggression is the crime of international society insists that the moral standing of a state rests on the consent of its members. '"Contract" is a metaphor for the process of association and mutuality, the ongoing character of which the state claims to protect against external encroachment.'22 What counts as consent of the governed is a matter for debate, but Walzer thinks that the condition is likely to be satisfied by most states. In fact, it was also likely to have been satisfied by the Indian nations referred to by the Royal Commission. Let us assume the following. A nation has a moral standing and is thus worthy of respect if and only if it is capable of acting as an agent (which even 'dependent nations' are able to do within limited spheres) and its authority rests in some sense on the consent of the governed. The moral standing of nations explains why it is wrong of one nation to invade another, undermine its institutions, and why relationships between them ought to be based on mutually acceptable understandings - whether these take the form of treaties or less formal or tacit agreements. It explains why members of nations cannot 20 21 22

R. Costo and J. Henry, Indian Treaties, 6. J. Waldron, "Redressing Historic Injustice", sects. 1-3. M. Walzer, Just and Unjust Wars, 54.

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eschew the practice of agreement making so long as their nation has relations with other nations. Since nations are intergenerational communities these agreements, or at least the commitment to maintaining a particular relationship with another nation which enables fair agreements to be made is also intergenerational. Morally responsible members of nations will demand that their successors maintain this relationship. As in the case of formal promises, this posterity-directed demand brings with it an intergenerational obligation to make recompense for past failures to establish or maintain a relationship of respect. Why can't we simply insist that our predecessors will have a general duty of respect - the same as we do - but not one that requires either them or us to make reparation for the injustices of predecessors? The position I am taking supposes that relations that result from a particular history of interactions give us (and therefore our national successors) special obligations to particular others. In many cases this history results in understandings or even formal agreements that require us to treat a particular agent in a way that we are not required to treat others. But even where our obligations demand no more from us than would be required anyway by a duty of respect, the fact that they arise from a particular understanding gives them a special force. These are the obligations that we pass on to our successors and which in turn require us to accept an obligation to maintain relations of respect or to make reparation for the failure of ourselves or our predecessors to maintain them. The obligation of respect involves more than making treaties when this is required by circumstances or mutual concerns. It requires us to respect the political and communal integrity and independence of those nations we interact with (unless they fail to satisfy the prerequisites of respect). Just as we have an obligation to make reparation to a nation for the failure of our predecessors to keep their commitments to it, so too we have an obligation to make reparation for other forms of disrespectful behavior. This obligation is the consequence of a belief - which all morally responsible citizens should hold - that our successors have an obligation to maintain respectful relations with those communities they interact with and repair any acts of disrespect that they, or we, have committed. 5. Advantages of the Theory The argument I have presented for the existence of historical obligation and entitlement moves from forward to backward looking considerations. It insists that we have an obligation to keep commitments of the past and to make reparation for past injustices, but it derives the motivation for this practice from our desire as morally responsible citizens to establish and maintain, now and into the future, respectful relations with the nations we interact with. My account has some obvious advantages. It does not rest content with the insistence that citizens have historical obligations simply because they are citizens. It reveals the moral mechanisms behind treaty keeping and related 'duties of state' and thus provides an explanation for why responsible citizens should accept the sacrifices that these duties entail. My account does not require us to think that we have a duty to the dead or a duty to fulfill the intentions of our predecessors. It thus avoids the problems associated with the intentions of past people and the difficulty of believing that we can harm or benefit the dead. It does not require that people feel guilt or shame for what their political predecessors did - though it does not claim that such feelings are irrational. It does not make responsibility depend on ancestry. To have a historical obliga-

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tion it is not necessary that you be a descendant of someone who made or violated an agreement. Bloodlines are as irrelevant to historical obligations of citizens as they are to other duties of citizenship. You assume the responsibility when you become a citizen however that occurs. Recent immigrants may not be inclined to feel guilt or shame for such misdeeds - people are probably more likely to feel shame or guilt for the deeds of those they count as their ancestors. But this has nothing to do with their responsibilities as citizens. My theory thus makes it possible to understand how repairing historical injustice can be the collective responsibility of members of a nation. The account I have given makes a less obvious, but equally important, contribution to discussions about justice in a political society. It brings to prominence something that is ignored or marginalised in most theories of justice: the moral relationship between the generations. Maintaining a political society capable of acting justly in a world of nations depends on a moral practice that requires each generation of citizens to take responsibility for keeping the commitments of its predecessors and repairing their injustices. Most citizens acknowledge the obligation to keep the agreements of their predecessors (unless these agreements have been made void by changing circumstances or were the result of force or fraud). My account not only explains why this obligation exists. It shows that the reasons for their accepting this duty are also reasons for accepting the obligation to make reparation for their nation's historical wrongs. A justification of historical obligations which emphasizes ongoing relations between communities also provides an alternative to theories of reparation which focus solely on title. Whether present citizens have a historical obligation depends on the history of a relationship between their nation and another community - what commitments were made, what wrongs were done, and what past people have done to right these wrongs and not simply on whether a historical title exists. Wrongs requiring reparation include all actions that can be regarded as acts of disrespect - and not merely unjust dispossession. The theory thus explains why it seems appropriate to offer an apology or some other kind of acknowledgment of past wrongs. And it explains why all citizens, or citizens of a certain category, can be required to make sacrifices for the sake of righting a wrong. My account of historical obligations does not exclude the acceptance of a theory of historical title. We could continue to insist, as Boxill does, that return of possessions is a requirement of reparation. Nevertheless, a theory that emphasizes the establishment or maintenance of respectful relations between nations encourages a different approach to reparative justice - one that can be called 'reconciliatory'. Rather than supposing that the point of reparative justice is to return victims to the situation they were in before the injustice was done, those who take a reconciliatory approach to reparation aim at re-establishing just and respectful relations with those they have wronged by coming to terms with the past - by performing actions that their victims can regard as an appropriate response to the wrong done. A reconciliatory approach can make sense of acts that many people think are central to reparation: acknowledgment or apology for past wrongs, and also for acts of reparation in cases where there is no question of being able to undo the injustice. It can take into account not merely the original injustice - but the whole history of a relationship, including more recent and contemporary injustices. And it can also avoid the difficulties associated with historical titles. Reparation as reconciliation can explain why it might be appropriate, say, to make reparation to an indigenous community by giving it some of the land it once possessed without having to suppose that the community ever had a indisputable title or that their title has persisted

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through time and change.23 Such an act might be justified as be the most appropriate way of compensating for a history of injustice and making it possible for communities to establish relations that all can regard as just. A reconciliatory approach can also allow that the return of possessions is not necessarily the best way of making it possible for nations to establish just and respectful relations in circumstances as they now exist. A theory which concentrates on the entitlements and responsibilities of nations as politically organized communities has another advantage. It implies that no group can demand reparation for injustices done by a nation that no longer exists or make a claim on behalf of a non-existent political community. No one can be expected to pay reparation for the crimes of the Roman Empire. Nor can a group of people claim reparation just because they have a cultural, religious or linguistic connection to a nation that was once unjustly treated but has vanished from the face of the earth. This result supports the intuitively plausible belief that claims based on ancient injustices are not likely to be valid. More controversially, my theory gives no support to Serbia's claim to Kosovo and could not have been used to support the Zionist claim to Palestinian territory. The Palestinians had no obligation of reparation and the Zionists had no basis for a reparative claim. On the other hand, my account seems to give no support to reparative demands that many people do find plausible. For example, it does not support the demands of black Americans for reparation for the slavery of their ancestors. African Americans do not constitute a nation, as I have used that term. Unlike many indigenous people, they are not members of a semi-independent, politically organized intergenerational community, and thus a theory which demands respect for nations and reparation for wrongs done to nations does not apply to them. The fact that they belong to a group that has been historically oppressed is not sufficient to support a reparative claim (as Sher argues in his ch.).24 This result might be regarded as a vindication of the position of those who think that we should concentrate on repairing present injustices to individuals. However, the theory I have been presenting motivates another way of regarding the issue. A nation is an intergenerational society in which members have responsibilities in respect to future and past generations. The former is acknowledged in theories of justice which insist that members of a society ought to be concerned about the well being of their descendants.25 If we think that we can make demands on our successors for the sake of future members of our family lines then perhaps it can be argued that we have a duty to make reparation for injustices committed against family lines in the history of our society - in particular, those injustices which continue to have an impact on the present. Slavery, an institution perpetuated by enslaving the offspring of slaves, seems to be an obvious example of an injustice against family lines. The suggestion is that a theory of historical obligation which takes a wider view of intergenerational obligations may be able to justify some reparative claims made by descendants of victims of injustice. Whether this suggestion is reasonable would require much more discussion. But it is worth pointing out that a theory which focuses on moral relations between generations rather than relations

23

24 25

The fact is that most actual titles are the result of conquest and other illicit acts. Nozick recognises this and suggests that for the time being we should forget about historical title and distribute resources according to the requirements of equity (Anarchy, State and Utopia, 231). G. Sher, "Ancient Wrongs and Modern Rights", esp. sects. 4f. For example, in A Theory of Justice, J. Rawls argues for obligations to future generations by assuming that those in the original position are representatives of family lines - i.e. people who can be expected to care about the well being of their children and grandchildren.

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between people and property could have important implications for many debates about reparation and historical injustice.26

Bibliography Barkan, E., The Guilt of Nations. Restitution and Negotiating Historical Injustices, W.W. Norton, 2000. Bigelow, J., R. Pargetter, and R. Young, "Land, Well-Being and Compensation", Australian Journal of Philosophy 68 (1990). Boxill, B., 'The Morality of Reparation", Social Theory and Practice 2 (1972). Costo, R., and J. Henry, Indian Treaties. Two Centuries of Dishonor, The Indian Historical Press, 1977. Feinberg, J., "Collective Responsibility", Journal of Philosophy 65 (1968). Gilbert, M., "On Feeling Guilt for What One's Group Has Done", Living Together. Rationality, Sociality, and Obligation, Rowman & Littlefield, 1996. Gilbert, M., "Group Wrongs and Guilt Feelings", Journal of Ethics 1 (1997). Hare, R.M., Freedom and Reason, Oxford University Press, 1963. Jedlicki, J., "Heritage and Collective Responsibility", The Political Responsibility of Intellectuals, ed. I. Maclean, A. Montefiore, P. Winch, Cambridge University Press, 1990. Lyons, D., 'The New Indian Land Claims and Original Rights to Land", Social Theory and Practice 4 (1911). Maclntyre, A., After Virtue. A Study in Moral Theory, 2nd Edition, Duckworth, 1981. Nozick, R., Anarchy, State, and Utopia, Basic Books, 1974. Paglia, C , "Who is Really to Blame for the Historical Scar of Black Slavery?", When Sorry Isn't Enough, ed. R.L. Brooks, New York University Press, 1999. Rawls, J., A Theory of Justice, Harvard University Press, 1971. Rescher, N., "Collective Responsibility", Journal of Social Philosophy 29 (1998). Sher, G., "Ancient Wrongs and Modem Rights", this volume. Simmons, A.J., "Historical Rights and Fair Shares", Law and Philosophy 14 (1995). Simmons, A.J., "Associative Political Obligations", Ethics 106 (1996). Thompson, J., "Historical Obligations", Australian Journal of Philosophy 78 (2000). Thompson, J., "Historical Injustice and Reparation. Justifying the Claims of Descendants", Ethics 112 (2001). Thompson, J., Taking Responsibility for the Past. Reparation and Historical Injustice, Polity, 2002. Vienna Convention on the Law of Treaties, Basic Documents in International Law, ed. I. Brownlie, 4th Edition, Oxford University Press, 1995. Waldron, J., Right to Private Property, Oxford University Press, 1988. Waldron, J., "Superseding Historical Injustice", Ethics 103 (1992). Walzer, M., Just and Unjust Wars. A Moral Argument with Historical Illustrations, Penguin, 1977.

26

I argue for this position in "Historical Injustice and Reparation", and also in part 2 of Taking Responsibility for the Past.

117 Historical Wrongs. The Two Other Domains1

Thomas W. Pogge

Contents 1.

Introduction

117

2.

Can the Holistic Effects of Past Wrongs Affect Present Moral Reasons for Action?

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2.1 Can Past Wrongs Strengthen Present Moral Reasons to Refrain from, or to Prevent, Like Wrongs?

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2.2 Can Past Wrongs Weaken Present Moral Reasons to Refrain from, or to Prevent, Like Wrongs?

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3.

Can the Rule-Shaping Effects of Past Wrongs Affect Present Moral Reasons for Action?

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3.1 Procedural Injustice in the Creation of Present Legal Rules

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3.2 Unjust Background Conditions in the Evolution of Present Institutional Arrangements

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4.

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Conclusion

1. Introduction Central to the topic of historical injustice, as I understand it, is the question whether and how past injustice and, more generally, wrongs can affect present moral reasons for action. We can distinguish three subquestions, which emerge from appreciating that the possible moral effects of past wrongs can be organized into three main - mutually exclusive but perhaps not jointly exhaustive - domains: (1) the distributive effects of past wrongs: One or more individual or collective agents - "the perpetrators" - acted wrongly at to, effecting a continuing change in the distribution of status or assets at ti. It may follow that some agents at ti have moral reason to alter this distribution of status or assets at tj, presumably with an eye to mitigating the distributive effects that the wrongdoing at to will have had from ti on.

Earlier versions of this paper were presented at the Einstein Forum, Potsdam, and to the Jurisprudence Discussion Group, Oxford. I thank both audiences, and especially David Heyd, Lukas Meyer, and Samantha Besson, for their comments and criticisms, which inspired numerous clarifications and modifications.

118 Thomas W. Pogge (2) the holistic effects of past wrongs: One or more individual or collective agents acted wrongly at to. It may follow that some agents at ti have more, or less, moral reason to see to it that they and others will not commit similar wrongs from ti on. (3) the rule-shaping effects of past wrongs: One or more individual or collective agents acted wrongly at to, effecting a continuing change in the social rules (in the laws and practices of a country, perhaps, or in the global economic order) prevailing at t|. It may follow that some agents at ti have moral reason to revise these social rules prevailing at t|, presumably with an eye to mitigating the effects that the wrongdoing at to will have had on what rules prevail from ti on. Most attention within the burgeoning historical-justice literature has been devoted to discussing the distributive effects of past wrongs. I therefore leave this topic largely to one side, concentrating on the other two instead. 2.

Can the Holistic Effects of Past Wrongs Affect Present Moral Reasons for Action ?

This second subquestion goes in two opposite directions, as historical wrongs may strengthen or weaken present moral reasons to refrain from, or to prevent, like wrongs now and in the future. 2.1

Can Past Wrongs Strengthen Present Moral Reasons to Refrain from, or to Prevent, Like Wrongs?

A strengthening of moral reasons may be indicated when people say, emphatically, that some specific wrong must never be repeated. This has been said, for instance, about the German holocaust and also about military dictatorships in Latin America ("nunca mäs"). Such statements would be relevant to our second topic, if they expressed the thought that we have more moral reason to prevent another holocaust now or in the future than similarly placed people had to prevent the German holocaust. But this thought is quite implausible for at least two reasons. It is implausible because it suggests that the moral importance of preventing some particular wrong can be affected by the mere fact that it comes before, rather than after, another wrong, that a second holocaust somehow has a greater impact on the overall moral quality of human history than the first. (This need not include the even more implausible thought that it is somehow less urgent to protect those in danger of becoming early victims of some kind of wrongdoing than those in danger of becoming victims of such wrongs later on.) It is implausible also because we cannot read off from a particular wrongdoing token which description of it fixes the type of wrong we now have more reason to refrain from or to prevent: Is it the mass killing of Jews, genocide, any mass killing, the persecution of Jews, the persecuting of any ethnic group, or what? A second, somewhat more plausible interpretation of the nunca-mäs sentiment holds that we have more moral reason to refrain from, and to prevent, a wrong when its victims would be persons who had been victimized by like wrongdoing in the past. This view might be supported by considerations of overall fairness: Other things being equal, it is worse for one person to be victimized twice over than for two persons to be victimized once each. While this rationale seems to have some force, it may assign excessive significance to the quality of prior harms suffered. Yes, other things equal we may have more moral

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reason to prevent an assault on a person who has been assaulted before; but do we then not also, other things equal, have more moral reason to prevent an assault on a person who had experienced a painful kidney operation, a car accident, or the death of a spouse? And likewise for the converse: Other things equal, perhaps we have, with respect to persons who were assaulted in the past, more moral reason to prevent their being assaulted again; but do we then not also, other things equal, have more moral reason to protect such former assaultees from other harms (such as a painful operation, an accident, or the death of a spouse)? If this is so, then the nunca-mäs sentiment, on this interpretation, dissolves into a much more general thought: We have more moral reason to ward off harms from persons who are already worse off through no fault of their own. This bland thought - though it is not what the "nunca mäs" slogan seeks to articulate - captures one way in which past wrongs could arguably affect present reasons for action. There is yet a third interpretation of the nunca-mäs sentiment, which I find the most plausible by far. On this interpretation, "nunca mäs" means that, in working against injustice and wrongdoing, we should make good use of available historical knowledge and understanding. With the experience of the holocaust in our past, we are better able to focus our vigilance and to prepare for effective resistance against evil than were moral persons 70 years ago. On this interpretation, historical wrongs do affect our present moral reasons for action: As compared with people who lived earlier, we have more moral reason to be alert and prepared in certain specific ways. Yet, historical wrongs do not affect our ultimate moral reasons; they only affect what our ultimate moral reasons are reasons to do concretely. 2.2

Can Past Wrongs Weaken Present Moral Reasons to Refrain from, or to Prevent, Like Wrongs?

Let us now consider the inverse case: historical wrongs potentially weakening moral reasons to refrain from, and to prevent, like wrongs now and in the future. A paradigm example of this is customary international law, as conventionally understood. States are thought to have a moral (and, controversially, a legal) obligation to comply with customary international law. But whether some particular rule is part of customary international law or not depends on the historical incidence of compliance with this rule: The more frequently and severely this rule has been violated in the past, the less moral reason states now have to comply with it, or so it is thought. The rationale behind this principle is not that actual state conduct is the best available indicator of right and wrong - an idea that is too ridiculous to be put forward even by states. The rationale is better captured, I think, by the label "sucker exemption," which I have used elsewhere: Agents have less moral reason to honor valid moral constraints when doing so would or could lead to their being "made a sucker" by non-compliers.2 And so states, in particular, have less moral reason to comply with valid moral constraints when other, competing states have not complied. I have found that most people endorse this idea, and that their endorsement is motivated by a commitment to fairness - a notion that is central to Anglophone moral E.g., World Poverty and Human Rights, 127.

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thought and, as we see here, also somewhat corrosive of it. The notion of fairness centrally involves the thought that agents, especially when they are competing over outcomes or resources, should have equal opportunities on a level playing field. This thought is taken to imply that it would be unfair for some to be hampered by moral constraints while others are not. Such unfairness supports the idea that one cannot be morally required to be a sucker, that is, someone who loses out on account of self-imposed moral constraints that others cheerfully ignore. We can analyze the appeal of the sucker exemption into an essential backward-looking and an essentially forward-looking component. Let me illustrate these, once more with the example of state conduct. According to the essentially backward-looking version, states have less moral reason to deny themselves a wrongful gain when other, perhaps competing states have enjoyed or are still now enjoying the fruits of analogous wrongful gains. This version appears in the argument the Athenians put to the Melians.3 And it also comes up in present debates between developing and developed countries, with the former asking: "Why should we have to hamper our economic development through environmental and labor standards, given that you had allowed yourselves to grow more rapidly without them?"4 And: "Why should we have to fight the international trade in addictive drugs now when such trade is bad for the developed Western states, given that these same Western states had fought quite brutally for free trade in addictive drugs when such trade was good for them?"5 According to the essentially forward-looking version, states have less moral reason to deny themselves a wrongful gain when they have grounds for believing that competing states are disposed to help themselves to analogous wrongful gains. This version of the argument is frequently adduced by realists and might be used to justify breaches of international law and treaties by reference to the well-grounded expectation that other states are disposed to violate such legal constraints when doing so promises significant gains. It is morally regrettable that other states are so disposed, but, in a world of such states, we do not have strong moral reason to honor ideal moral rules when doing so would expose us to being taken advantage of by others. It is obviously important to keep the backward-looking and forward-looking versions distinct, because the latter is, while the former is not, vulnerable to the retort that a powerful state has a significant opportunity to moralize the international order with the result of changing the prevalent disposition of states so as to reduce or even eradicate the fear that compliance with international rules would be taken advantage of by other states.

According to Thucydides, The History of the Peloponnesian War, Book 5, the Athenian negotiators said to the Melians: "you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must." There may well be an admixture of the forward-looking appeal in the Athenian position as Thucydides recounts it. The moral force of this question is obviously much better accommodated if the rich countries shoulder or at least share the cost of the poor countries' fulfilling these standards than if the poor countries likewise fail to fulfill them. One reason for this will be explored below: By disregarding environmental and labor standards now, the developing countries would be harming innocent third parties rather than prior non-compliers. This is an allusion to the so-called opium wars prosecuted by Great Britain and other Western powers against China in the middle of the 19th century. The first invasion was initiated in 1839 when Chinese authorities in Canton (Guangzhou) confiscated and burned opium brought in by foreign traders (http://www.druglibrary.org/schaffer/heroin/opiwarl .htm).

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Focusing here on historical injustice, let us put this latter, forward-looking version of the sucker exemption aside. We can then, within the backward-looking version, make two distinctions that seem relevant to deciding to what extent and in what contexts appeals to this sucker exemption are plausible. Typically, the rationale for moral constraints involves protecting basic interests of persons from adverse conduct by other agents. Thus, violations of moral constraints by agents, P (for perpetrators), normally tend to harm the interests of certain persons, V (for victims). Appeal to the sucker exemption seeks to justify such violations by invoking the fact that other agents, W, have violated those moral constraints as well. My first distinction is drawn by asking whether V is or is not a subset of W. If the former, we can ask further whether the harm V is now suffering exceeds the benefit V derived from, and/or the harm V inflicted through, V's earlier violations. These questions yield five possibilities (1-5). Just as the present victims V may or may not be previous perpetrators, so the present perpetrators P may or may not be previous victims. This is the second distinction, which can be further refined by asking about the former possibility whether the benefit P stands to derive from P's present violation merely recoups (in full or in part), or rather exceeds, the losses from P's own earlier victimization. The second distinction is then a three-fold one (a-c). Putting both distinctions together, we arrive at the following 15 possibilities.

(la) P's violation harms only past violators, and the harm it inflicts on V exceeds neither the harm V's prior violations inflicted nor the benefit V derived from V's prior violations. The benefits P derives from P's violation do not exceed the harms P suffered from previous violations.

(lb) P's violation harms only past violators, and the harm it inflicts on V exceeds neither the harm V's prior violations inflicted nor the benefit V derived from V's prior violations. The benefits P derives from P's violation exceed the harms P suffered from previous violations.

(lc) P's violation harms only past violators, and the harm it inflicts on V exceeds neither the harm V's prior violations inflicted nor the benefit V derived from V's prior violations. P never suffered any harms from previous violations.

(2a) P's violation harms only past violators, and the harm it inflicts on V exceeds the harm V's prior violations inflicted but not the benefit V derived from V's prior violations. The benefits P derives from P's violation do not exceed the harms P suffered from previous violations.

(2b) P's violation harms only past violators, and the harm it inflicts on V exceeds the harm V's prior violations inflicted but not the benefit V derived from V's prior violations. The benefits P derives from P's violation exceed the harms P suffered from previous violations.

(2c) P's violation harms only past violators, and the harm it inflicts on V exceeds the harm V's prior violations inflicted but not the benefit V derived from V's prior violations. P never suffered any harms from previous violations.

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(3a) P's violation harms only past violators, and the harm it inflicts on V exceeds the benefit V derived from V's prior violations but not the harm V's prior violations inflicted. The benefits P derives from P's violation do not exceed the harms P suffered from previous violations.

(3b) P's violation harms only past violators, and the harm it inflicts on V exceeds the benefit V derived from V's prior violations but not the harm V's prior violations inflicted. The benefits P derives from P's violation exceed the harms P suffered from previous violations.

(3c) P's violation harms only past violators, and the harm it inflicts on V exceeds the benefit V derived from V's prior violations but not the harm V's prior violations inflicted. P never suffered any harms from previous violations.

(4a) P's violation harms only past violators, but the harm it inflicts on V exceeds both the benefit V derived from V's prior violations and the harm V's prior violations inflicted. The benefits P derives from P's violation do not exceed the harms P suffered from previous violations.

(4b) P's violation harms only past violators, but the harm it inflicts on V exceeds both the benefit V derived from V's prior violations and the harm V's prior violations inflicted. The benefits P derives from P's violation exceed the harms P suffered from previous violations.

(4c) P's violation harms only past violators, but the harm it inflicts on V exceeds both the benefit V derived from V's prior violations and the harm V's prior violations inflicted. P never suffered any harms from previous violations.

(5a) P's violation harms innocents. The benefits P derives from P's violation do not exceed the harms P suffered from previous violations.

(5b) P's violation harms innocents. The benefits P derives from P's violation exceed the harms P suffered from previous violations.

(5c) P's violation harms innocents. P never suffered any harms from previous violations.

Further subtleties could be added, of course. Thus one might well think that the three comparisons - V's present losses with V's earlier gains, V's present losses with the losses V previously inflicted, and P's present gains with P's earlier losses - should not be binary (does the former exceed the latter or not?) but scalar (e.g., what is the ratio of the former over the latter?). Further, one may also think that, when P was a past victim and V a past violator, the appeal to the sucker exemption gains further plausibility if and to the extent that P was a victim of V's past violations. Finally, the degree of similarity among the harms may also be deemed to enhance the plausibility of appeals to the sucker exemption: The fact that V is a thief, and has perhaps even stolen from P in the past, may weaken the moral reason P has not to steal from V more than it weakens the moral reason P has not to damage V's car, say. I am not here concerned to decide all these issues, only to indicate what I think the relevant factors are that determine the plausibility of particular appeals to the sucker exemption.

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Leaving these further complexities aside, let us concentrate on the simpler scheme of 15 possibilities as outlined. Clearly, appeal to the sucker exemption is at its most plausible in box (la), and especially plausible, perhaps, when P was among the victims of V's prior violations. Thus imagine that P has the opportunity to cheat V out of $400. Ordinarily, P has moral reason not to do this. But V had once, in a similar way, cheated P out of $500. And this fact does indeed seem to weaken or even erase the moral reason P would ordinarily have not to cheat V. Appeals to the sucker exemption become less plausible as we move toward the right. Thus consider an illustration in the (lc) box: Once again P has the opportunity to cheat V out of $400, and once again V had antecedently, in a similar way, cheated someone out of $500. However, P has never been cheated (or otherwise harmed) by V or by anyone else. The whole benefit of cheating V would therefore be a net gain for P. We may want to insist that P has moral reason not to cheat V. But do we not also judge that P has more moral reason to refrain from cheating others who have never cheated anyone? If we make this latter judgment we implicitly acknowledge that P's ordinary moral reason against cheating V is weakened by V's prior cheating record. Appeals to the sucker exemption also become less plausible as we move downward. Thus consider an illustration in the (5a) box: Some time ago, W had cheated P out of $500. Now P has an opportunity to recoup some of this loss by cheating some innocent third party, V, in a similar way out of $400. We may want to say that P has moral reason not to cheat V. But do we not also morally regret the fact that P was harmed by W through no fault of P's own? And do we not think it would be morally good if P's loss were diminished or compensated? But if such compensation counts as a moral good, does it not weaken, somewhat at least, the moral reason P would otherwise have not to cheat V (at least if there is no morally more acceptable way for P to recoup the loss W had inflicted on P)? The exemption, already quite dubious in boxes (lc) and especially (5a), becomes thoroughly implausible, not to say outrageous, in the (5c) box: P has an opportunity to cheat some innocent party V out of $400. The whole benefit of cheating V would be a net gain for P, who has never been cheated or harmed by anyone. In this case, the fact that some W had cheated people out of money in the past does not seem to weaken in the slightest the moral reason P would ordinarily have not to cheat V. My discussion of the holistic effects of past wrongs has yielded these tentative conclusions: Past wrongs do not strengthen the moral reasons to refrain from and to prevent like conduct now and in the future (except in the bland sense emerging from the second interpretation of "nunca mäs"). But past wrongs may weaken such moral reasons, most clearly in cases where P can, through conduct that harms only those who have wrongfully harmed P in the past, recoup some of P's loss from their previous wrongdoing. I have not discussed whether it makes sense here to add the proviso that the harms P inflicts upon W must be of the same kind as the harms W had inflicted upon P earlier.

I am here concerned solely with the backward-looking version of the sucker exemption. Thus I leave open the possibility that P's well-grounded expectation that others are generally disposed to cheat may weaken P's moral reason not to cheat even those P knows thus far to have been innocent of cheating.

124 Thomas W. Pogge 3.

Can the Rule-Shaping Effects of Past Wrongs Affect Present Moral Reasons for Action?

Let me turn to our third and final subquestion: To what extent can the effects of historical wrongs on present social rules provide moral reasons to revise these rules? One may think that this whole subquestion is moot because present social rules, no matter how they may have come about, ought to be revised if and insofar as, and only if and insofar as, they are now unjust. There is surely some truth in this thought, but this truth does not suffice to render the question moot. The reason is twofold. First, there is not, for each particular context, only one single just set of social rules, determinate down to the most minute detail. Rather, many features of a social order are morally open or discretionary, and with respect to these features historical pedigree may well matter. Second, there is bound to be controversy over whether present social rules are just or unjust, and those who deem some such rules unjust may reasonably hold themselves to have less moral reason to comply with, and more moral reason to oppose, these rules if they were also instituted in an unjust manner. You may acquiesce in a law that you consider mildly unjust if it has been democratically adopted over your opposition; and yet you may refuse to acquiesce in this same law if its passage was facilitated by votebuying in the legislature. I conclude that the issue is not moot, that the manner in which present social rules have once been instituted can affect present moral reasons for action in regard to these rules. Let us consider then how this manner of institutionalization can matter. 3.1 Procedural Injustice in the Creation of Present Legal Rules Let us begin by focusing on the narrower issue of procedural injustice, that is, on the question: What difference can the fact that present social rules have been instituted in an unjust manner make to how we now have moral reason to conduct ourselves with regard to these rules? Consider an example. A long time ago, a country was founded. Its founders gave it a constitution, formulating the central features of its political system and the more important individual rights. And they entrenched this constitution by including a clause to the effect that changes of the constitution require a two-thirds majority in a nationwide referendum. Since the country was somewhat overpopulated even then, a clause was included in the constitution prescribing that, upon the death of any landowner, his or her land shall generally pass to the eldest son or, should there be no son, to the eldest daughter. The unobjectionable intent of this clause was to prevent divisions and subdivisions of land, which could easily lead to unviable plots, economic inefficiency, and hence poverty and starvation. This need to forestall division of plots is still widely accepted today. But a sizable fraction of the female population, the so-called feminists, object to the sex asymmetry in the inheritance rules. They advocate the substitution of an alternative clause under which the oldest child would inherit, irrespective of his or her sex. This rule change, however, is opposed by many who, conceding that favoring male over female children is morally arbitrary, are also convinced that favoring those born earlier over those born later (or lottery winners over lottery losers, for that matter) is no less arbitrary from a

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moral point of view. A referendum is held, and the feminist proposal receives 60 percent - a solid majority, but less votes than needed for a revision of the constitution. Now the feminists present a new argument. At the time of the founding and for more than a century thereafter, they say, women were completely excluded from the political process. To be sure, the injustice of their erstwhile exclusion has since been widely acknowledged, and a constitutional amendment guaranteeing equal female political participation was passed by a wide margin (with men alone voting) some 80 years ago. But laws passed before this enfranchisement of women remain in place. That they do is perhaps no injustice in the case of ordinary laws, which the legislature could change at any time by a simple majority. But it is problematic with regard to the constitution because of its supermajoritarian entrenchment. It is quite possible that, if women had had an equal say when the constitution was first adopted, the existing sex-asymmetrical provision would have lost out to a sex-symmetrical one - perhaps to the very provision now proposed by the feminists. The feminists conclude from these considerations that the 40-percent minority have moral reason not to use their legal power to block the constitutional revision. The minority ought to support a re-run of the referendum and ought then to vote in favor of the revision proposed by the feminists - not on the substantive ground that the revised clause is morally superior (for this the minority does not grant), but on the procedural ground that a simple majority deserves to win because the sex-asymmetrical provision they are seeking to dislodge was entrenched in an unjust manner. The feminists' new argument has quite radical implications. After all, the default rule about inheritance is not the only constitutional provision marred by historical injustice. The argument casts a shadow over all constitutional provisions adopted more than 80 years ago (when women were enfranchised). It suggests that all these "ancient" provisions should be subjected to a referendum, that any provisions opposed by a present majority should be voted on a second time, and that proponents of such unpopular ancient provisions should then, in any such second referendum, vote with the majority (that is, against the ancient provision). It might make sense that the first ancient provision to be subjected to this test should be the entrenchment provision: Back then, at the founding, men decided that revisions of their constitution should require a two-thirds majority; and this requirement can be acceptable to women today only if it is reaffirmed by a collective decision in which they are included. Only when the entire constitution has been reexamined and (with possible modifications) reaffirmed, is any undue political power of the ancient male political elite erased. Or is it? One might use the feminists' argument to challenge the constitution not merely on account of what was included in it, but also on account of what was excluded from it, before universal suffrage. Suppose that one candidate provision that never managed to gain enough votes for adoption would have protected citizens against discrimination on the basis of their sex. And suppose that another constitutional provision banning discrimination on the basis of race was adopted before women received the right to vote. One might then argue that, had women already been part of the political process at the time the ban on race discrimination was considered, they could and might well have pressed for the inclusion of sex by making clear that they would withhold support from any provision banning discrimination on account of race alone. Many of those eager to establish a constitutional protection against race discrimination, realizing that they need women's support to pass it, might well have been willing, in exchange, to support the protection against sex discrimination demanded by women. As it is, however, the sup-

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porters of a constitutional provision against race discrimination already have what they want and can therefore afford to vote against an equal rights amendment for women.7 Acceptance of the feminists' new argument would have quite dramatic implications for the hypothetical country I have imagined, and dramatic implications also for some existing states with "ancient" constitutions, such as the United States, whose actual history bears some obvious resemblance to the story just told. In the US, most women and many men have, in recent decades, supported the Equal Rights Amendment (ERA) which, had it won, would have afforded women the same protection against discrimination that the 15th Amendment affords people of color. Supporters of the ERA could challenge their defeat on the ground that people in 1870 (when the 15th Amendment was ratified) might well not have singled out race and color to the exclusion of sex if women had then been part of the political process. If women had been part of the political process then, they could have made their support of the 15th Amendment conditional on the inclusion of sex as a protected characteristic. It is just not right that men should have had the opportunity, from 1787 until 1920, to pack into the Constitution everything they care about (including the second-amendment right to bear arms) without giving women the slightest say, and that a male minority should now still enjoy the power to veto provisions that all women and many men seek to add. The whole constitution is marred by historical injustice. The decision to have a constitution at all, the decision to entrench it against the majority of legislators, and all decisions about what exactly to include - all these decisions were made without the slightest participation of women. The only way to end this continuing injustice is to start from scratch, now on a level playing field that gives all adult citizens an equal opportunity to influence the decisions: about whether to have a constitution at all, about whether and how to entrench it, and about what to include. Let me add three clarifications about the kind of argument here developed. First, the most common response to arguments from historical injustice is the challenge "how do you know what would have happened if ...?". In the present case, this response is entirely beside the point. The feminist argument, as I have conceived it, does employ the thought that, had women had the vote from the beginning, the constitution might well now have a different content than it does have. But the argument makes no claim about what this different content would be, and it certainly does not demand that we should now switch over to any such alternative content. Rather, the argument claims that the creation of the constitutional provisions was marred by a significant injustice, the exclusion of women from the political process, which was not clearly causally irrelevant to the result. And the thrust of the argument is entirely negative, demanding that the existing constitutional provisions should not enjoy the benefit of an undeserved entrenchment.

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Can we really draw even this weak conclusion from showing that some historical injustice merely might well have - rather than: has - made a difference? After all, such a showing of might-well-have is compatible with the claim that the historical injustice also might well have made no difference. One response to this objection is that it is quite unlikely that, had women been fully enfranchised from the beginning, the exact same constitution would have been formulated and identically entrenched by the political process. But this response risks getting us embroiled in the kind of historical speculation that so often bogs down arguments invoking the distributive effects of past wrongs. Better then to rely on another, independent response: Suppose there is indeed a possible parallel history in which women were fully enfranchised from the beginning and still the exact same constitution is formulated and identically entrenched by the political process. In that fictional parallel world, this constitution, though indistinguishable from ours, would have much greater moral legitimacy than it has in our world. In that parallel world, there would be much less moral reason, if any, to start over.8 Second, the argument need not challenge the existing legal system and its cumbersome procedures for constitutional change. It can be presented as a merely moral appeal among fellow citizens: If a majority favors constitutional change, a minority should not use the veto power it may have, thanks to historically unjust entrenchment, to block the majority's will. Were this appeal honored, the entrenchment would be formally respected (with new constitutional provisions fully sanctified by the prescribed procedure), but it would be practically set aside for moral reasons as opponents of the revisions would let the proponents win when they realize that the latter have even merely a simple majority. Third, while the feminists' position has dramatic implications, it is also less radical than it might be. A more radical argument developed by Michael Otsuka9 would reject any exercise of political power by past people over the living. Even a procedurally flawless referendum just 19 years ago should not be allowed to thwart the majority will today. And the rectifying procedure proposed by the feminists should thus be extended to all constitutional provisions, irrespective of whether they were adopted before or after the enfranchisement of women. We see here that the position suggested by the feminists' new argument - by challenging some entrenched constitutions - is intermediate between a radical position that challenges all entrenched constitutions and a conservative position that challenges none (unless they are legally flawed, as when the constitutionally prescribed mode of constitutional amendment was not correctly followed). In another respect, however, the radical and conservative positions agree against the intermediate one. They agree that the moral quality of the historical process through which presently entrenched constitutions once 8

7

In numbers: Suppose men and women each constitute 50% of the electorate. 80% of men and 80% of women support banning race discrimination. Half of these people, namely 10% of men and 70% of women strongly support banning sex discrimination and would be willing to block a weaker amendment targeting race discrimination alone. If only men vote, this weaker anti-discrimination amendment will pass with 70% of the vote, against its opponents (20%) and against the votes of the male feminists (10%). Even if universal suffrage is introduced later, only 40% will support adding a ban on sex discrimination. On the other hand, if women are eligible to vote from the start, the 40% strongly supportive of banning sex discrimination are able to block a provision targeting race discrimination alone and can thereby bargain for the support of those who more strongly favor banning race discrimination than they oppose banning sex discrimination.

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9

Imagine a group of people playing poker. At the end of the evening, they find that the deck of cards was one short. A debate ensues: Should the games be annulled by returning all players to their initial cash holdings or should the present distribution of cash be allowed to stand? The proponents of annulment claim that the defect in the deck might well have made a difference to the outcome. If this claim were false, if it were certain that the same gains and losses would have come about even if the deck had been complete, then the opponents of annulment may have a case. (Perhaps the players switch decks periodically, and the opponents of annulment can show that the defective deck was never used.) But it is plainly not enough for such opponents to claim that the same gains and losses could - or even: might well - have come about even if the deck had been complete. That some particular result might well have emerged from a fair historical process does not help justify this result if it in fact emerged from an unfair historical process. In his Libertarianism witlwut Inequality, ch. 7, 'The Problem of Intergenerational Sovereignty".

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were adopted has little or no bearing on present moral reasons for action. In this dispute, I side with the intermediate position. Against the radicals I hold that long-term entrenchment can have some moral standing, which is at stake when the fairness of the manner of entrenchment is under challenge. And against the conservatives I hold that it matters now, morally, whether and how significantly the entrenchment of some provision was aided by injustice or other wrongs. These views could and should be defended at greater length. But let me instead develop the intermediate position a little further, beyond the topic of procedural injustice as illustrated by the entrenchment of constitutional provisions. 3.2 Unjust Background Conditions in the Evolution of Present Institutional Arrangements It is well known that the rules of an institutional order have distributive effects. An obvious example is a society's tax code, whose specific design affects not only the long-term growth and vibrancy of the national economy, but also the incidence of poverty, inequality, unemployment, and much else. Less widely understood is the inverse influence: how the distribution of income and wealth prevailing in a society is reflected in the rules of its political and economic order. We know very well, of course, especially if we have lived in the United States, that money can buy political influence and that wealthy individuals and powerful firms often spend large sums on so-called "campaign contributions", Political Action Committees (PACs), lobbying efforts, and the like - transactions that differ little from legalized bribery. But we do not think much about how the abstract distribution of income and wealth itself affects the design of the institutional order which then, in turn, acts back upon this economic distribution. Still, it is clear upon reflection that the amount of time and money the rich, or the poor, spend on efforts to shape the tax code in their own favor depends in good part on how much time and money they have. And this, in turn, depends on what the structure of the tax system is now. There is the possibility, then, of what economists call multiple equilibria, each of which would be self-sustaining in the same society: A low-inequality equilibrium with highly progressive tax rates would maintain itself because supporters of a less progressive tax scheme do not, under the scheme as it is, have sufficient incentives, money, and political influence to defeat the more numerous and likewise reasonably well educated and prosperous defenders of the status quo. And a highinequality equilibrium with much less progressive effective marginal tax rates would also maintain itself because defenders of the status quo enjoy great advantages in wealth, influence, and education which motivate and enable them to defeat the majority's interest in achieving greater economic equality. Whether some particular society is in a low-inequality equilibrium (like Norway and Sweden) or in an also feasible high-inequality equilibrium (like Brazil) or in some feasible intermediate equilibrium (like the United Kingdom and the United States) depends then on historical contingencies. Which specific feasible equilibrium a society is in is path-dependent.10 10

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The word "feasible" is meant to allude to the fact that, for any society or other social system, there are outer bounds to the space of durable economic equilibria (distinguishable, roughly, by their degree of economic inequality). When inequality exceeds certain limits, it tends to be disadvantageous even to the rich. Thus extreme inequality is associated with a risk of rebellion that worsens the

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This thought could be developed to encompass further complexities. Involved in the causal feedback loop are not only the rules of the tax code, but also the laws governing the financing of political campaigns and the electoral method as well as non-legal practices and conventions which are shaped by, and in tum help reproduce, the prevailing distributional pattern. All these factors, and others as well, bear to the existing economic distribution a relation of reciprocal influence which will tend to be one of mutual reinforcement. While the causal picture is more complex, the central point remains: Within certain outer bounds, a given degree of economic inequality is often self-reinforcing or entrenched. This fact provides the basis for an argument that, though less punchy and clear-cut, is analogous to the one on procedural injustice sketched in the preceding subsection: Insofar as a society's present economic equilibrium is path-dependent, its moral legitimacy depends in part on the moral legitimacy of the path on which it evolved. And the moral legitimacy of an existing high-inequality equilibrium may then possibly be challenged by tracing it back to antecedent conditions that were marred by injustice - antecedent conditions like the highly unequal distribution of wealth in the United Kingdom at the end of the feudal period, for instance, or that in the United States when slavery was abolished. The poor in the UK today could then launch their own "new argument", somewhat akin to the one constructed for the feminists in the preceding section: We all agree now that the feudal order was deeply unjust. But when this order was dismantled, the heavily skewed economic distribution that had evolved over centuries of injustice was left intact. Democratization thus took hold against the background of large economic inequalities, which afforded the rich grossly disproportionate influence in shaping the political and economic ground rules of the democratizing country to be inegalitarian. The high-inequality equilibrium existing in the UK today may well then be a continuing legacy of the economic inequalities accumulated under the unjust feudal order." This new argument casts doubt on the legitimacy of the existing extent of economic inequality. But what sort of change, if any, can it justify? Does it not provide as much support to anti-egalitarian critics of the present tax code (who charge this code with being overly progressive, thereby generating too equal an economic distribution) as it pro-

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prospects of the rich relative to what these prospects would be with less inequality and no rebellion (as one might learn from the experience of the French aristocracy in 1789). The rich themselves therefore have a vested interest in keeping inequality well below the rebellion threshold. Since this interest is widely shared across society, it is likely to prevail, so long as there is common knowledge about where, roughly, the rebellion threshold lies. A more restrictive outer bound, unique to the last two centuries, is imposed by popular sovereignty. So long as the exercise of political power depends on regular elections that involve nearly all adult citizens and give roughly equal weight to the vote of each, there is a limit to how far inequality can be increased without creating a popular majority prepared to field and to vote for candidates and political parties promising reversal. Income inequality in the United Kingdom, as manifested in a Gini coefficient of 36.8, is greater than in any other major European country. Inequality is still greater in the United States, whose Gini is 40.8, and very much greater in South Africa, with a Gini of 59.3, as well as in Brazil, with a Gini of 60.7, and in most other Latin American countries. The Scandinavian countries and Japan have Ginis in the mid-20s. The corresponding income ratio of the top 10% to the bottom 10% of the population of these countries are (with the year of the last survey in parentheses): Japan 4.5 (1993), Norway 5.3 (1995), Germany 7.1 (1994), France 9.1 (1995), UK 12.3 (1995), US 16.6 (1997), South Africa 42.5 (1993-4), Brazil 65.8 (1998), Paraguay 91.1 (1998). All these data are taken from Human Development Report 2002, 194-6.

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vides to egalitarian critics of the present tax code (who charge this code with being insufficiently progressive, thereby generating too unequal an economic distribution)? This apparent symmetry is broken by the value of democratic equality. Economic institutions are widely thought to depend for their legitimacy upon the free and informed endorsement of a majority of citizens, with each citizen's view counting for as much as any other's. When a society's distribution of income and wealth is highly uneven, it is quite difficult to obtain such free and informed majority consent and more difficult still for citizens to be sure that there is such consent. The reason is that, in such a society, the rich enjoy great advantages over the poor in such respects as education, access to the mass media, free time they can devote to political activities, funds they can contribute to political parties and causes, and so forth. When a society's distribution of income and wealth is reasonably even, then it is, by contrast, much easier to ensure that economic institutions designed through the democratic political process enjoy the free and informed endorsement of a majority of citizens. In such a society, a democratically adopted institutional change toward greater inequality can have legitimacy as reflecting the majority's belief that this change will be beneficial to the society and to most of its members by entailing greater affluence and faster economic growth without undermining the fairness of the democratic political process. In this way, the widely accepted value of democratic equality breaks the apparent symmetry and saves this new argument against entrenched economic inequality from being inconclusive. To understand this new argument correctly, it may help expressly to distinguish it from more common arguments invoking the distributive effects of past wrongs. Such conventional arguments claim about specific persons or groups that they would be better off now than they actually are if some past injustice or wrongdoing had not occurred. The claim might be, for instance, that blacks in the United States would today be less disadvantaged relative to other groups if their ancestors had not been enslaved or if their ancestors, once freed from bondage, had been given a fairer start. This claim naturally leads to demands for compensation or rectification designed to bring the claimants - individuated rigidly as individual persons or generically as members of some natural group - up to where they would now be if the historical injustice had never occurred. The standard response to such arguments is to demand proof of the relevant subjunctives: to demand proof that the selected persons or groups would really be better off than they are had the injustice not occurred. Would blacks be better off today if Africa had not been raided by colonialists and slave traders? Would African-Americans be better off today if Sherman's promise of forty acres and a mule had been kept?12 It is quite 12

For a brief account, see http://www.isomedia.com/homes/bhd2/40_acres_and_mule.htm: On January 12, 1865, in the midst of his "March to the Sea" during the Civil War, General William T. Sherman and Secretary of War Edwin M. Stanton met with 20 Black community leaders of Savannah, Georgia. Based in part to their input, General Sherman issued Special Field Order #15 on January 16, 1865, setting aside the Sea Islands and a 30 mile inland tract of land along the southern coast of Charleston for the exclusive settlement of Blacks. Each family would receive 40 acres of land and an army mule to work the land, thus "forty acres and a mule". General Rufus Saxton was assigned by Sherman to implement the Order. On a national level, this and other land, confiscated and abandoned, became the jurisdiction of the Freedman's Bureau, which was headed by General Oliver Otis Howard (Howard University). In his words he wanted to "... give the freedmen protection, land and schools as far and as fast as he can". However, during the summer and fall of 1865, President Andrew Johnson issued special pardons, returning the property to the ex-Confederates. Howard issued Circular 13, giving 40 acres as quickly as possible. Learning about this, Johnson ordered Howard to issue Circular 15, returning the land to the ex-Confederates.

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hard to decide such subjunctives; and if they involve particular rigidly individuated persons, there is the additional difficulty of showing that these persons would even have come into being without the injustice.13 The new argument is entirely different. It poses a direct challenge not to the present distribution (of wealth, income, status, powers, or whatever) over specific persons or groups, but rather to this present distribution abstractly considered: to the present extent of inequality. Involving the three elements we found exemplified by the new feminist argument, it claims that existing economic institutions (such as the tax code) evolved against a background of unjust inequality; that their content may well have been influenced by these unjust background conditions; and that these economic institutions and any inequalities and deprivations persisting under them are therefore morally tainted. To remove this stain, those economic institutions must be reformed in an egalitarian direction to the point where it is clearly true that the affirmation of economic institutions by the democratic political process is tantamount to their free and informed endorsement by a majority of citizens. To be sure, an attack on the present extent of inequality also challenges, indirectly, the present concrete distribution. But this challenge is different from a challenge invoking the distributive effects of past wrongs. It does not suggest that some persons or groups are richer, and others poorer, than they would now be if certain historical wrongs had not occurred. Its suggestion is, rather, that some persons or groups are richer, and others poorer, than anyone would now be if certain historical wrongs had not occurred. It is not suggested that past wrongs live on in the advantages of status, wealth, and education that, once unjustly accumulated, are passed on within specific family lines or within ethnic or kinship groups. The suggestion is rather that economic inequalities, once unjustly accumulated, live on in the economic institutions (paradigmatically the tax code) that in turn strongly influence the extent of future inequality: If there had not been the historical injustice of feudalism, then there might well now exist a more egalitarian economic equilibrium: a more progressive tax code reinforcing and reinforced by a less unequal economic distribution. An argument invoking the distributive effects of past wrongs could be defeated by showing that the 19lh-century ancestors of the super-rich in the UK today belong mostly to the working class and, in any case, not to the nobility. But the "new argument" in favor of a more progressive tax code for the UK would be wholly undisturbed by such a finding.14 Once again, we can situate the new argument between two extremes, one radical and the other conservative. The radical view holds that in order to conclude that a present institutional order ought to be reformed in an egalitarian direction we only need a forward-looking argument that shows this order to be inferior in its distributional effects to some feasible alternative. If we find that the existing economic rules have a feasible alternative (involving more progressive tax rates, for instance) that would reduce both poverty and inequality (would better satisfy Rawls's difference principle, say), then we have all the reason we could need for demanding reforms. The conservative view holds 13 14

See D. Parfit, Reasons and Persons, ch. 16. There is yet another argument in the vicinity that mine should be distinguished from. This third argument would claim that historical injustice has (or might well have) influenced the ordinal distribution of persons over socio-economic positions. This argument, too, could be adduced to support change in an egalitarian direction. But I will not examine this argument here. Still, it should be clear that, even if the claim of the third argument were known to be false, this would not damage the "new argument" explored in the text.

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that one should respect the historically grown institutional arrangements of one's society except in extreme cases (e.g., late feudalism, perhaps, or early-Stalin communism) where these arrangements cause widespread, severe and avoidable suffering. Both views agree that the causal influence of past wrongs on the evolution of the existing institutional order is irrelevant to its moral legitimacy. I dissent from this agreement. As I see it, the radicals are right that forward-looking considerations (evaluating the comparative effects of present institutional arrangements) have substantial and often decisive moral weight, and the conservatives are right that the institutional status quo can have some countervailing moral standing. But, rather than simply split the difference between the two views, I hold that the moral legitimacy of this institutional status quo crucially depends on how it has actually evolved. An institutional order whose evolution was heavily influenced by grievous injustice and wrongdoing may have no moral standing at all. The history of an institutional order may therefore tip the scales with respect to the question whether the continued imposition of this order is morally acceptable or not. And this history may also make a difference to how unacceptable it is to impose such an institutional order. An economic order may produce so much avoidable poverty and inequality that it can be condemned on forward-looking grounds alone, which suffice to show that this order would be unjust even if it had come about in the most benign way one might imagine. However, suppose that the evolution of this economic order was in fact marred by grievous injustices or other wrongs. In this case, it and its imposition would be even more unjust. The present global economic order is a case in point. I have argued in a recent book15 that this order is gravely unjust on account of the enormous inequality and severe poverty it reproduces: The "high-income" countries with 15.6 percent of the world's population have 81 percent of the global product. All those below the World Bank's "$2/day" poverty line - defined in terms of daily per capita income with the purchasing power that $2.15 had in the US in 1993 - constitute 47 percent of the world's population with VA percent of global income. The annual death toll from poverty-related causes is about 18 million or one third of all human deaths. Today's world economy illustrates dramatically the mutual reinforcement of unequal distribution and inegalitarian institutions. The rules of the world economy are negotiated among governments or established simply through their conduct and practice. If these governments, because of vast international economic inequality, differ dramatically in bargaining power, those rules will reflect a highly skewed bargaining equilibrium that favors the interests of those already much advantaged. Under such rules, the lion's share of global economic growth will go to the rich, entrenching and perhaps even expanding their economic advantage. Given the vast human death toll and suffering they avoidably produce, existing global institutional arrangements would surely be severely unjust even if the economic inequality sustaining them had come about in a most innocent way. We could imagine, for instance, that before the populations of different continents took notice of one another, the Europeans had worked much harder than others and built up a great stock of economic and human capital while people elsewhere were living hand-to-mouth. When significant intercontinental interaction then arose, the Europeans already had a significant economic head-start that allowed them to dominate the shaping of global institutional arrange15

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See n. 2 above.

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ments. Even with this benign history, we would have sufficient forward-looking moral reasons to reform the global institutional order so as to preclude, at least, life-threatening poverty. Yet, these reasons become even stronger when, substituting the actual history, we recall that existing global economic inequality accumulated over the course of an historical process that has, through colonialism, genocides, and enslavement, devastated the societies and cultures of four continents. At the end of this extremely violent occupation, when Africa was hastily decolonized around 1960, the countries of the "First World" enjoyed an enormous 30:1 advantage in per capita income over the new African states. This unjustly accumulated advantage enabled these countries to shape the rules of the global economic order in their favor and thereby still today taints these inegalitarian rules as well as the unequal economic distribution they help reproduce. (It is often said that colonialism cannot possibly have any significance for explaining today's suffering on the African continent, that even Apartheid is too long ago now to matter. To see the falsehood of this view, just consider what a 30:1 advantage means: Even if all of Africa, starting in 1960, consistently achieved each and every year one percent higher growth in per capita income than the First-World countries, it would take until early in the 24th century for Africa to catch up.16) My suggestion is then that in thinking about how much economic inequality is morally acceptable and about how morally (unAcceptable some given degree of economic inequality is, we should be sensitive also to how this inequality and the rules sustaining it came about. I conclude that appeals to the rule-shaping effects of past wrongs are far more promising than appeals to the distributive effects of past wrongs as made within the standard arguments thus far put forward under the 'historical injustice' label. The former appeals cannot, however, justify compensation to specific persons or natural groups. Instead, they challenge the existing extent of inequality as heavily influenced by historical wrongs. Such a challenge naturally leads to demands for a "new deal" that would increase equality and thereby reduce the influence of historical wrongs on the shaping of social institutions and the extent of economic inequality. We do not need to know what these influences are, exactly, to conclude that they should not give rise to the severe inequalities our world displays today. 4. Conclusion My objective in this paper was to mitigate the concentration, among those working on historical injustice, on one subquestion: regarding the distributive effects of past wrongs. This concentration would make sense, if the other two subquestions were less interesting or of lesser practical relevance. As I have tried to show, it is more likely that the opposite is true. The holistic effects of past wrongs (and especially the backwardlooking version of the sucker exemption) and the rule-shaping effects of past wrongs seem well worth sustained study, and the latter are likely of greater present distributional significance than the distributive effects of past wrongs. I am well aware that I could 16

It is not easy to achieve such higher rates of growth under rules hammered out in intergovernmental negotiations with counter-parties who have vastly greater bargaining power. At any rate, actual growth in per capita income was slower in most African countries than in the First World, and so that the ratio has expanded to 40:1.

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here merely raise these issues, not treat them with anything like the thoroughness they deserve.

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George Sher Bibliography Otsuka, M., Libertarianism without Inequality, Oxford University Press, 2003. Parfit, D., Reasons and Persons, Clarendon Press, 1984. Pogge, Th., World Poverty and Human Rights, Polity Press, 2002. Thucydides, The History of the Peloponnesian War, W.W. Norton & Company, 1998. United Nations Development Programme, Human Development Report 2002, Oxford University Press, 2002.

It is widely acknowledged that persons may deserve compensation for the effects of wrong acts performed before they were born. It is such acts that are in question when we say that blacks deserve compensation because their forebears were originally brought to this country as slaves, or that American Indians deserve compensation for the unjust appropriation of their ancestors' land. But although some principle of compensation for the lasting effects of past wrongs seems appropriate, the proper temporal scope of that principle is not clear. We may award compensation for the effects of wrongs done as many as ten or twenty generations ago; but what of wrongs done a hundred generations ago? Or five hundred or a thousand? Are there any temporal limits at all to the wrong acts whose enduring effects may call for compensation? In the first section of this essay, I shall discuss several reasons for addressing these neglected questions. In subsequent sections, I shall discuss some possible ways of resolving them. 1. A natural initial reaction to questions about compensation for the effects of ancient wrongs is that these questions are, in the main, hopelessly unrealistic. In the case of blacks, Indians, and a few analogous groups, we may indeed have enough information to suggest that most current group members are worse off than they would be in the absence of some initial wrong. But if the wrong act was performed even longer ago or if the persons currently suffering its effects do not belong to a coherent and easily identified group, then such information will not be available to us. There are surely some persons alive today who would be better off if the Spanish Inquisition had not taken place or if the Jews had never been originally expelled from the land of Canaan. However, to discover who those persons are and how much better off they would be, we would have to draw on far more genealogical, causal, and counterfactual knowledge than anyone can reasonably expect to possess. Because this information is not and never will be completely available, the question of who, if anyone, deserves compensation for the current effects of these wrongs will never be answered. But if so, why bother asking it? This relaxed approach to compensation has the virtue of realism. The suggestion that we might arrive at a complete understanding of the effects of ancient wrongs is a philosopher's fantasy and nothing more. Nevertheless, despite its appeal, I think we cannot rest content with a totally pragmatic dismissal of the issue of compensating for ancient wrongs. For one thing, even if compensatory justice is a partially unrealizable ideal, its theoretical limits will retain an intrinsic interest. For another, even if we cannot now ascertain which persons deserve compensation for the effects of ancient wrongs, the insight that such persons exist might itself suggest new obligations to us. In particular, if the victims of even the most ancient of wrongs can qualify for compensaFirst published in Philosophy and Public Affairs 10 (1981), 3-17. Reprinted by permission of Princeton University Press.

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here merely raise these issues, not treat them with anything like the thoroughness they deserve.

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George Sher Bibliography Otsuka, M., Libertarianism without Inequality, Oxford University Press, 2003. Parfit, D., Reasons and Persons, Clarendon Press, 1984. Pogge, Th., World Poverty and Human Rights, Polity Press, 2002. Thucydides, The History of the Peloponnesian War, W.W. Norton & Company, 1998. United Nations Development Programme, Human Development Report 2002, Oxford University Press, 2002.

It is widely acknowledged that persons may deserve compensation for the effects of wrong acts performed before they were born. It is such acts that are in question when we say that blacks deserve compensation because their forebears were originally brought to this country as slaves, or that American Indians deserve compensation for the unjust appropriation of their ancestors' land. But although some principle of compensation for the lasting effects of past wrongs seems appropriate, the proper temporal scope of that principle is not clear. We may award compensation for the effects of wrongs done as many as ten or twenty generations ago; but what of wrongs done a hundred generations ago? Or five hundred or a thousand? Are there any temporal limits at all to the wrong acts whose enduring effects may call for compensation? In the first section of this essay, I shall discuss several reasons for addressing these neglected questions. In subsequent sections, I shall discuss some possible ways of resolving them. 1. A natural initial reaction to questions about compensation for the effects of ancient wrongs is that these questions are, in the main, hopelessly unrealistic. In the case of blacks, Indians, and a few analogous groups, we may indeed have enough information to suggest that most current group members are worse off than they would be in the absence of some initial wrong. But if the wrong act was performed even longer ago or if the persons currently suffering its effects do not belong to a coherent and easily identified group, then such information will not be available to us. There are surely some persons alive today who would be better off if the Spanish Inquisition had not taken place or if the Jews had never been originally expelled from the land of Canaan. However, to discover who those persons are and how much better off they would be, we would have to draw on far more genealogical, causal, and counterfactual knowledge than anyone can reasonably expect to possess. Because this information is not and never will be completely available, the question of who, if anyone, deserves compensation for the current effects of these wrongs will never be answered. But if so, why bother asking it? This relaxed approach to compensation has the virtue of realism. The suggestion that we might arrive at a complete understanding of the effects of ancient wrongs is a philosopher's fantasy and nothing more. Nevertheless, despite its appeal, I think we cannot rest content with a totally pragmatic dismissal of the issue of compensating for ancient wrongs. For one thing, even if compensatory justice is a partially unrealizable ideal, its theoretical limits will retain an intrinsic interest. For another, even if we cannot now ascertain which persons deserve compensation for the effects of ancient wrongs, the insight that such persons exist might itself suggest new obligations to us. In particular, if the victims of even the most ancient of wrongs can qualify for compensaFirst published in Philosophy and Public Affairs 10 (1981), 3-17. Reprinted by permission of Princeton University Press.

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tion and if our current compensatory efforts are therefore aimed at only a small subset of those who deserve it, then we will at least be obligated to enlarge the subset by extending our knowledge of the effects of ancient wrongs as far as possible. Alternatively, the discovery that desert of compensation is not invariant with respect to temporal distance might force us to reduce our compensatory efforts in certain areas. These considerations suggest that clarifying the theoretical status of ancient wrongs may dictate certain (rather marginal) changes in our actual compensatory policies. But there is also another, far more significant implication that such clarification might have. Given the vastness of historical injustice and given the ramification of every event over time, it seems reasonable to assume that most or all current individuals have both benefited from and been harmed by numerous ancient wrongs. For (just about) every current person P, there are likely to be some ancient wrongs that have benefited P but harmed others, and other ancient wrongs that have benefited others but harmed P. In light of this, neither the distribution of goods that actually prevails nor that which would prevail in the absence of all recent wrongs is likely to resemble the distribution that would prevail in the absence of all historical wrongs. But if so, and if the effects of ancient wrongs do call as strongly for compensation as the effects of recent ones, then it seems that neither compensating nor not compensating for the known effects of recent wrongs will be just. On the one hand, since the point of compensating for the effects of wrong acts is to restore a just distribution of goods among the affected parties, the injustice of the distribution that would prevail in the absence of recent wrongs will undermine our rationale for restoring it. However, on the other hand, even if that distribution is unjust, the distribution that actually prevails is no better; and so a failure to compensate for recent wrongs will be every bit as unpalatable. The only strategy that is just is that of restoring the distribution that would have prevailed in the absence of all historical wrongs. But this, as we have seen, we will never have sufficient information to do. How to respond to this combination of pervasive injustice and indefeasible ignorance is a complicated and difficult question. One possible strategy is to argue that even if compensating for recent wrongs would not restore full justice, it would at least bring us substantially closer to a totally just distribution than we are now. A second alternative is to revise our account of the aim of compensating for recent wrongs - to say that the point of doing this is not to restore a fully just distribution among the affected parties, but rather only to nullify the effects of one particular set of injustices. A third is to accept Nozick's suggestion that we "view some patterned principles of distributive justice [e.g., egalitarianism or Rawls' difference principle] as rough rules of thumb meant to approximate the general results of applying the principle of rectification of injustice."1 A fourth is to abandon hope of achieving justice by either compensating or not compensating and simply start afresh by redistributing goods along egalitarian or Rawlsian lines. If their positions can be grounded in either of the latter ways, egalitarians and Rawlsians may hope to rebut the charge that they ignore such historical considerations as entitlement and desert.2 But as interesting as these issues are, it would be premature for us to consider them further here. The choice among the suggested options arises only if ancient wrongs do call for compensation as strongly as recent ones; and so that claim must be investigated first. The discussion so far has been merely

1 2

R. Nozick, Anarchy, State, and Utopia, 231. For development of this charge as it pertains to entitlement, see ibid., eh. 7. For discussion involving desert, see G. Sher, "Effort, Ability, and Personal Desert".

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to establish the claim's importance. Having done that, we may now tum to the question of its truth.

Intuitively, the effects of ancient wrongs do not seem to call as strongly for compensation as the effects of recent ones. Indeed, the claim that persons deserve compensation even for the effects of wrongs done in biblical times appears to be a reductio of the ideal of compensatory justice. But we shall be wary of intuitions of this sort. It is perfectly possible that they reflect only an awareness of the epistemological difficulty of establishing desert of compensation for ancient wrongs; and if they do, then all the problems limned above will remain untouched. To clarify the force of our intuitions, we must ask whether they can be traced to any deeper source in the notion of compensation itself. Is there anything about compensation that reduces the likelihood that ancient wrongs may call for it? More precisely, are there any necessary conditions for desert of compensation that become progressively harder to satisfy over time? Prima facie, the answer to this question is clearly yes. On its standard interpretation, compensation is the restoration of a good or level of well-being that someone would have enjoyed if he had not been adversely affected by another's wrong act. To enjoy (almost) any good, a person must exist. Hence, it seems to be a necessary condition for X's deserving compensation for the effect of F s doing A that X would have existed in A's absence. Where A is an act performed during X's lifetime, this requirement presents few problems. However, as A recedes into the past, it becomes progressively more likely that the effects of the non-performance of A will include X's non-existence. If X's currently low level of well-being is due to the defrauding of his great-grandfather in Europe, the very same fraudulent act that reduced X's great-grandfather to poverty may be what caused him to emigrate to America and so to meet X's great-grandmother. Because the prevalence of such stories increases as the relevant wrong act recedes into the past, the probability that the effects of the wrong act will call for compensation must decrease accordingly. And where the wrong act is an ancient one, that probability may approach zero. This way of explaining our intuitions about ancient wrongs may at first seem quite compelling. But once we scrutinize it more closely, I think doubts must arise. If X cannot deserve compensation for the effects of A unless X would have existed in the absence of A, then not only ancient wrongs, but also the slave trade, the theft of the Indians' land, and many other acts whose effects are often deemed worthy of compensation will turn out to be largely non-compensable. As Lawrence Davis notes, "were we to project 200 years of our country's history in a rectified movie, the cast of characters would surely differ significantly from the existing cast."3 Moreover, even if we were to accept this conclusion, as Michael Levin has urged that we do,4 further problems would remain. Even in the case of some wrong acts performed very shortly before their victims' existence (for example, acts of environmental pollution causing massive genetic damage), it seems reasonable to suppose that it is not the victim, but rather some other person, who would exist in the absence of the wrong act. And there are also cases in which wrong acts do not produce but rather preserve the lives of their victims, as when a kidnapping accidentally prevents a child from perishing in the fire that subsequently L. Davis, "Comments on Nozick's Entitlement Theory", 842. M. Levin, "Reverse Discrimination, Shackled Runners, and Personal Identity".

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destroys his home. Since compensation may clearly be deserved in all such cases, it seems that the proposed necessary condition for deserving it will have to be rejected. If we do wish to reject that necessary condition, there are at least two alternatives available to us. One is to alter our interpretation of the counterfactual presupposed by the standard account of compensation - i.e., to read that counterfactual as requiring not simply that X be better off in the closest possible world in which A is absent, but rather that X be better off in the closest possible world in which A is absent and X exists. A more drastic alternative, for which I have argued elsewhere, is to modify the standard view of compensation itself - i.e., to say that compensating X is not necessarily restoring X to the level of well-being that he would have occupied in the absence of A, but rather that it is restoring X to the level of well-being that some related person or group of persons would have occupied in the absence of A.5 Although both suggestions obviously require further work,6 it is clear that neither yields the unacceptable consequences of the simpler account. However, it is also true that neither implies that the probability of desert will decrease over time. Hence, the shift to either of them will call for a different explanation of our intuitions about compensation for ancient wrongs. 3.

A more promising way of explaining these intuitions can be extracted from a recent article by David Lyons. In an important discussion of the American Indian claims to land,7 Lyons argues that property rights are unlikely to be so stable as to persist intact through all sorts of social changes. Even on Nozick's extremely strong conception of property rights, the "Lockean Proviso" implies that such rights must give way when changing conditions bring it about that some individuals are made worse off by (originally legitimate) past acts of acquisition. In particular, this may happen when new arrivals are disadvantaged by their lack of access to established holdings. Because property rights do thus change over time, Lyons argues that today's Indians would probably not have a right to their ancestors' land even if it had not been illegitimately taken. Hence, restoring the land or its equivalent to them is unlikely to be warranted as compensation. But if this is true of America's Indians, then it must be true to an even greater degree of the victims of ancient wrongs. If property rights are so unstable, then rights held thousands of years ago would surely not have survived the world's drastic population growth, the industrial revolution, or other massive social changes. Hence, their violation in the distant past may appear to call for no compensation now. Because wrongful harm and deprivation of property are so closely connected, this approach initially seems to offer a comprehensive solution to our problem. However, here again, a closer examination reveals difficulties. First, even if we grant Lyons' point that changing conditions can alter people's entitlements and that new arrivals may be entitled to fair shares of goods already held, it remains controversial to suppose that these fair shares must be equal ones. If the shares need not be equal, then the instability 5 6

7

G. Sher, "Compensation and Transworld Personal Identity". Although I have presented them as alternatives, the two suggestions need not be viewed as mutually exclusive. Indeed, the most promising approach appears to be to combine them. The first suggestion appears the more natural in those cases where there are many close alternative worlds that lack the initial wrong act but contain the victim himself, while the second appears indispensable in those instances where the initial wrong is so intimately associated with the victim's existence that there is no such world. D. Lyons, 'The New Indian Claims and the Original Rights to Land".

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of property rights may well permit the preservation of substantial legitimate inequalities through both time and inheritance. Moreover, second, even if property rights do fade completely over time, there will still be many current persons whom ancient wrongs have in one way or another prevented from acquiring new property rights. Because these new rights would ex hypothesi not have been continuations of any earlier rights, they would not have been affected by the instability of those earlier rights. Hence, the persons who would have held them will apparently still deserve to be compensated. Finally, despite the close connection between property and well-being, there are surely many ways of being harmed that do not involve violations of property rights at all. As many writers on preferential treatment have suggested, a person can also be harmed by being deprived of self-respect, by being rendered less able to compete for opportunities when they arise, and in other related ways. Although these claims must be scrutinized with considerable care, at least some appear clearly true. Moreover, there is no reason to believe that the psychological effects of a wrong act are any less long-lived, or any less likely to be transmitted from generation to generation, than their economic counterparts. It is true that the psychological effects of wrong acts are often themselves the result of property violations; but the case for compensating for them does not appear to rest on this. Because it does not, that case seems compatible with any view of the stability of property rights. 4. Given these difficulties, Lyons' insight about property does not itself resolve our problem. However, it suggests a further line of inquiry that may. We have seen that because property rights are not necessarily stable, we cannot assume that anyone who retains his property in a world without the initial wrong is entitled to all (or even any) of it in that world. A world in which that particular wrong is rectified may still be morally deficient in other respects. Because of this, the real question is not how much property the victim does have in the rectified world, but rather how much he should have in it. Moreover, to avoid arbitrariness, we must say something similar about persons whose losses do not involve property as well. If this is not generally recognized, it is probably because deleting the initial wrong act, which is properly only necessary for establishing what the victim should have had, is easily taken to be sufficient for it. But whatever the source of the oversight, the fact that the operative judgments about rectified worlds are themselves normative is a major complication in the theory of compensation, for normative judgments do not always transfer smoothly to the actual world. By spelling out the conditions under which they do not, we may hope finally to clarify the status of ancient wrongs. Let us begin by considering a normative judgment that plainly does not carry over from a rectified world to our own. Suppose that X, a very promising student, has been discriminatorily barred from entering law school; and suppose further that although X knows he will be able to gain entry in another year, he becomes discouraged and so does not reapply. In a rectified world Wr which lacks the initial discrimination, X studies diligently and eventually becomes a prominent lawyer who enjoys great prestige and a high salary. In that world, we may suppose, X is fully entitled to these goods. However, in the actual world, Wa, the compensation to which X is entitled appears to fall far short of them or their equivalent. Hence, our normative judgment does not fully carry over from Wr to Wa.

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Why does our normative judgment about Wr not fully carry over? In part, the answer to this question seems to lie in X's own contribution to the actual course of events. Given more perseverance, X could have avoided most of the effects of the initial wrong act; and this certainly seems relevant to what he should now have. However, quite apart from what X does or does not do in Wa, there is another factor to consider here. Insofar as X's entitlements in Wr stem from what X does in law school and thereafter, they arise through a sequence of actions that X does not perform in Wr until well after the original wrong and that he does not perform in Wa at all. These entitlements are not merely inherited by X in Wr, but rather are created anew by his actions in that world. But if X's actions in Wr are themselves the source of some of his entitlements in that world, then it will make little sense to suppose that those entitlements can exist in an alternative world (that is, the actual one) which lacks the generating actions. To say this would be to hold that what a person should have may be determined by certain actions that neither he nor anyone else has actually performed.8 We are plainly unwilling to say things like this in other contexts (nobody would say that a person deserves to be punished simply because he would have committed a crime if given the opportunity),9 and they seem to be no more supportable here. In view of these considerations, it seems that the transferability of a person's entitlements from a rectified world to the actual one is limited by two distinct factors. It is limited, first, by the degree to which one's actual entitlements have been diminished by one's own omissions in this world and, second, by the degree to which one's entitlements in a rectified world are generated anew by one's own actions there. In the case of X, this means that what transfers is not all of his entitlements in Wr, but at best his entitlement to the basic opportunity to acquire these entitlements - in this instance, the entitlement to (the value of) the lost opportunity to attend law school. Of course, the value of this opportunity is itself determined by the value of the further goods whose acquisition it makes possible. But the opportunity is clearly not worth as much as the goods themselves. This reasoning, if sound, sheds considerable light on the general concept of compensation. But because the reasoning applies equally to compensation for ancient and recent wrongs, its connection with our special problem about ancient wrongs is not yet clear. To bring out this connection, we must explore its implications over time. So let us now suppose that not just X, but also X's son Z, has benefited from X's admission to law school in Wr. As a result of X's wealth and status, Z enjoys certain advantages in Wr that he does not enjoy in Wa. Assuming that X is fully entitled to his advantages in Wr, and assuming also that X only confers advantages upon Z in morally legitimate ways (whatever these are), it follows that Z too is fully entitled to his advantages in Wr. Under these circumstances, Z may well deserve some compensation in Wa. However, because Z's entitlement to his advantages in Wr stems directly from X's exercise of his own entitlements in that world, it would be anomalous to suppose that the former entitlements could transfer in greater proportion than the latter. Moreover, and crucially, given the principles already adduced, it seems that Z's entitlements in Wr will have to transfer to Wa in even smaller proportion than X's. The reason for this diminution in transferability is easy to see. Just as the transferability of X's entitlements is limited by certain facts about X's omissions in Wa and X's actions in Wr, so too is the transferability of Z's entitlements limited by similar facts 8 9

This point is discussed in a more limited context in G. Sher, "Justifying Reverse Discrimination in Employment", 166ff. For discussion, see T. Nagel, "Moral Luck".

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about Z's omissions in Wa and Z's actions in Wr. More specifically, the transferability of Z's entitlements is also limited by Z's own failure to make the most of his opportunities in Wa, and by the degree to which Z's entitlements in Wr have arisen through his use of his own special opportunities there. Of course, the opportunities available to Z in Wr and Wa may be very different from the opportunity to attend law school; but this difference is hardly a relevant one. Whether Z's advantages in Wr and Wa take the form of wealth, political power, special skills or abilities, or simply self-confidence, the fact remains that they are, inter alia, potential opportunities for him to acquire further entitlements. Because of this, the way they contribute to his total entitlements in these worlds must continue to affect the degree to which his entitlements in Wr can transfer to Wa. Once all of this is made clear, the outline of a general solution to our problem about ancient wrongs should begin to emerge. Because the transferability of Z's entitlements is diminished twice over by the contribution of actions performed in Wr and omitted in Wa, while that of X's entitlements is diminished only once by this contribution, it follows that Z is likely to deserve proportionately less compensation for the effects of the original wrong than X; and Z's offspring, if any, will deserve proportionately less compensation still. Moreover, since few original entitlements are preserved intact over succeeding generations (quite apart from any instability of property rights, the consumption of goods and the natural non-inheritability of many entitlements must each take a large toll), the progressive diminution in the transferability of entitlements from Wr to Wa must be absolute, not just proportional. But if the transferability of entitlements from rectified worlds does decrease with every generation, then over the course of very many generations, any such transferability can be expected to become vanishingly small. Where the initial wrong was done many hundreds of years ago, almost all of the difference between the victim's entitlements in the actual world and his entitlements in the rectified world can be expected to stem from the actions of various intervening agents in the two alternative worlds. Little or none of it will be the automatic effect of the initial wrong act itself. Since compensation is warranted only for disparities in entitlements that are the automatic effect of the initial wrong act, this means that there will be little or nothing left to compensate for.

5. This approach to the problem posed by ancient wrongs is not dissimilar to the one extracted from Lyons' discussion. Like Lyons, I have argued that a proper appreciation of the entitlements upon which claims to compensation are based suggests that these claims must fade with time. However, whereas Lyons argued that the entitlement to property itself fades with time, I have held instead that it is the transferability of that and other entitlements from rectified worlds to the actual one that becomes progressively weaker. By thus relocating the basic instability, we avoid the objections that the analysis of property rights is controversial, that some claims to compensation do not view the right to the lost property as continually held in a rectified world, and that other claims to compensation do not involve property at all. But although our account is not open to these objections, it may seem to invite others just as serious. More specifically, it may seem that our presupposition that entitlements are historically transmitted is itself controversial, that our distinction between newly generated and continuing entitlements is problematical, and that we have failed to account satisfactorily for the status of

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wrongs that are neither recent nor ancient. In this final section, I shall consider each of these objections in its turn. The first objection, that the historical transmission of entitlements is as controversial as any analysis of property, is easily answered. Put briefly, the answer is that this presupposition is controversial, but that unlike any special view of property rights, it is internal to the very notion of compensation that generates our problem. If entitlements were never historically transmitted - if a person's entitlements at a given time were never derived from the prior entitlements of others - then someone like Z would not be entitled to any special advantages in Wr and so would not deserve any compensation in Wa. Moreover, although it is less obvious, the same point holds even if Z is only minimally well off in Wr, but is extremely disadvantaged in Wa. It may seem, in that case, that Z's entitlements in Wr are independent of X's - that Z, like everyone else in Wr, is entitled to a certain decent minimum no matter what X was entitled to or did in the past. But even if this is so, it cannot form the basis for compensating Z for the effects of the initial wrong act; for if Z is absolutely entitled to such a minimum in Wr, then he will also be absolutely entitled to it in Wa, and so the original wrong act will drop out as irrelevant. Given these considerations, some form of historical transmission of entitlements is plainly presupposed by any view permitting compensation for a variety of prenatal (and so a fortiori ancient) wrongs.10 But just because of this, there may seem to be a problem with our central distinction between continuing and newly produced entitlements. This distinction appeared plausible enough when we first considered X's entitlements in Wr. However, once we take seriously the fact that people can transmit, confer, and waive their entitlements, the distinction seems to blur. When a parent confers advantages upon his children by educating or bequeathing wealth to them, the entitlements acquired are both related to earlier ones and the product of new generating actions. Moreover, something similar may be said to hold even when someone merely retains his own entitlement to property; for he too is acting at least in the sense that he is refraining from transferring or waiving that entitlement. Because human actions and omissions are thus crucial in perpetuating so many entitlements, our premise that this role cancels transferability from rectified worlds may well appear too strong. Given this premise, it seems to follow that not only ancient wrongs, but also recent ones, such as systematic racial discrimination, and perhaps even fresh property crimes, are largely non-compensable. These worries are serious ones and would require careful consideration in any full account of compensation. Here, however, I shall only outline what I take to be the correct response to them. Put briefly, my response is that the transferability of entitlements from rectified worlds should be viewed as disrupted not by all intervening acts or omissions in those worlds, but rather only by those acts or omissions that alter previously established structures of entitlements. When an entitlement is already established in a rectified world and is naturally stable over a period of time, its retention during that period is totally explainable in terms of its initial acquisition. In this case, the entitlement need not be attributed to any further doings of the agent; and so those doings seem irrelevant to the entitlement's transferability to the actual world. Moreover, assuming the legitimacy of inheritance, something similar may well hold for advantages that are transmitted to one's offspring; for here again, the resulting entitlements can be viewed 10

Thus, compensation is in one sense a strongly conservative notion. One can consistently advocate redistributive measures on compensatory grounds or on non-historical consequentialist grounds, but not, I think, on both grounds together.

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as natural continuations of initial ancestral acts of acquisition. Of course, the principle of the conservation of entitlements that underlies these remarks would require considerable elaboration to be fully convincing. But something like it does seem initially plausible, and anything along these lines will nicely preserve the conclusion that desert of compensation is not entirely momentary and evanescent. A final difficulty remains. Our argument has been that desert of compensation fades gradually over time and that ancient wrongs therefore call for no significant amounts of compensation. But even if this is correct, it does not dispose of the vast intermediate class of wrongs that are not ancient, but were still done one or more generations ago. Since the process we have described is gradual, our account suggests that such wrongs do call for some compensation, although not as much as comparable recent ones. But if this is so, then our account may seem at once too strong and too weak. The account may seem too strong because it will classify as intermediate even the wrongs done to blacks and Indians - wrongs that appear to be among our paradigms of full compensability. However, the account may also seem too weak, since it implies that very many partially compensable wrongs remain undiscovered and that our problem of how to act justly in the face of incurable ignorance is therefore unresolved. Because any response to one aspect of this objection will only aggravate the other, the difficulty seems intractable. But this dilemma is surely overdrawn. On the side of the claims of blacks and Indians, it may first be said that even if the initial wrongs to these persons do go back several centuries, the real source of their claims to compensation may lie elsewhere. As Lyons notes, the truly compensable wrong done to the Indians may be not the initial appropriation of their land, but rather the more recent acts of discrimination and neglect that grew out of this; and the same may hold, mutatis mutandis, for the truly compensable wrongs done to blacks." Moreover, even if the compensable wrongs to blacks and Indians do go back a number of generations, they may be highly atypical of other wrongs of that period. We have seen that one reason that compensability fades over time is that victims neglect reasonable opportunities to acquire equivalent entitlements; and so if slavery or the appropriation of Indian lands have made it specially difficult for their victims to recoup their lost entitlements, then these wrongs may call for far more compensation than others of similar vintage. Here our earlier results provide a natural framework for further inquiry. Finally, even if these suggestions do not establish full compensability for blacks and Indians, they do at least promise very substantial compensation for them; and this is perhaps all that is needed to satisfy our intuitions on the matter. The other horn of our dilemma - that this account leaves untouched our incurable ignorance about past compensable wrongs - is also overstated. The account does leave us unable to diagnose more than a small fraction of the past wrongs requiring compensation; but by itself, this only implies that we cannot right all of history's wrongs. The deeper worry, that in rectifying one injustice we may only be reverting to another, is at least mitigated by the fact that the most significant period of history from the standpoint of compensation is also the best known. Given this fact, the likelihood that our compensatory efforts will make things better rather than worse is greatly increased. If this solution is less precise than we might wish, it is perhaps the best that we have a right to expect.

D. Lyons, 'The New Indian Claims", see esp. 268-271. See also B. Bittker, The Case for Black Reparations, ch. 2.

144 George Sher Bibliography Bittker, B., The Case for Black Reparations, Random House, 1973. Davis, L., "Comments on Nozick's Entitlement Theory", Journal of Philosophy 73 (1976). Levin, M., "Reverse Discrimination, Shackled Runners, and Personal Identity", Philosophical Studies 37 (1980). Lyons, D., "The New Indian Claims and the Original Rights to Land", Social Theory and Practice 4 (1977). Nagel, T., "Moral Luck", Mortal Questions, Cambridge University Press, 1979. Nozick, R., Anarchy, State, and Utopia, Basic Books, 1974. Sher, G., "Justifying Reverse Discrimination in Employment", Philosophy and Public Affairs 4 (1915). Sher, G., "Compensation and Transworld Personal Identity", Monist 62 (1979). Sher, G., "Effort, Ability, and Personal Desert", Philosophy and Public Affairs 8 (1979).

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The Legacy of Injustice. Wronging the Future, Responsibility for the Past

Rahul Kumar and David Silver1

Contents 1.

Introduction

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1.1 The Central Claim

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1.2 The Forwards Doubt and the Backwards Doubt

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2.

How Wrongs Can Go Forward

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2.1 The Existential Worry

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2.2 Contractualist Wrongs

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2.3 Slavery as Contemptuous Devaluing of Others

151

3.

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How Responsibility Can Go Backwards

3.1 Problems with Responsibility for Historical Wrongs

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3.2 The Corporate Responsibility of the State

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3.3 Responsibility of the American People: Citizenship and Ethnicity

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3.4 Implications for Present-Day American Individuals

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4.

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Concluding Remarks

1. Introduction 1.1

The Central Claim

Do present-day African-Americans have a valid claim to rectification in virtue of the history of American slavery? Part of the difficulty in answering this question is that it is just not clear what the demand is, what its basis is, who the wronged party or parties is or are, and of whom the demand is being made. There are different answers available to all these questions, and we do not propose to even begin to try and adequately map the complicated field of ways to make sense of claims made in the name of the rectification of historical injustices. Rather, our purpose is to explore one particular way of explicating, at least in principle, the basis for modern For helpful discussion and criticism of previous drafts of this paper, we would particularly like to thank those who attended presentations of this material at Queen's University, (he University of Delaware, the University of Pennsylvania Humanities Forum, and the Eastern Division of the American Philosophical Association. For particularly helpful written comments and discussion, we thank Samuel Freeman and Michael McKenna.

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African-Americans having a claim to rectification. The claim, roughly, goes like this: those who comprise the modern African-American community - which consists of those individuals who at the very least are identified as members of the community, whether or not they self-identify with it - have a claim against the present-day American state to some form of rectification due to the state's role in enabling and legitimating various specific injustices that were visited upon African-Americans during the period in which the institution of chattel slavery was not explicitly and officially recognized by the state, both officially and through its activities, as wrong. Let us call this the central claim. Two points should be noted at the outset concerning the subject matter of our discussion. First, what we are concerned with is claims against a culpable party for rectification in virtue of its past conduct and in virtue of which the wronged party can be said to have been wronged. What we are not concerned with here are issues concerning reparations and the liabilities of the culpable party. It is an open question to what extent our arguments may have implications for questions concerning reparations. The way we are using these terms, reparations aim to address the consequences of one's wrongful treatment of another (or others). Rectification, on the other hand, aims to address the fact that one has related to another wrongfully. It is a matter of addressing what one's having wronged the other person says about one's understanding of how it is appropriate to relate to the person one has wronged. This certainly calls for more than just the acknowledgment of oneself as the culpable party. It is also requires acknowledgment of the seriousness of the wrongdoing as a moral failure about which one is repentant. It may also call for an acceptance of guilt, punishment, criticism, and the need to make reparations. These concepts have a natural home in maintaining relations of mutual respect between individuals in their daily interactions with one another; how they translate into the more complicated case of the wronging of African-Americans by the state is a complicated matter, about which we will say something in the latter part of the paper. Second, one might think that it can only be true in an attenuated sense to claim that anyone today owes anyone today anything by way of rectification for the wrongs of slavery. Those who were in fact culpable for the wrongs of slavery, and those who were in fact wronged by the institution of slavery, are dead. If the present-day state, for example, owes rectification to the present-day African-American community, it only does so in virtue of its being the inheritor of the rectificatory obligations incurred by the past wrongdoing done in the name of the state, by the state at that time. To the extent that the present-day African-American community is entitled to press these claims against the state, it is not in virtue of themselves having been wronged by the past wrongdoing. Rather, it is in virtue of having inherited the claims from others to whom they are related and in whose name they are entitled to press those claims against the present-day state. Our claim is stronger. What we seek to defend is the claim that the present state is the proper place to direct a claim for the rectification of a wrong and not merely a place to direct a claim for the payment of a liability. In other words, our view is that it is at least in principle possible to claim that conduct associated with the institution of chattel slavery has resulted in the wronging of modern African-Americans. The claim, therefore, has a distinct backward-looking element, insofar as rectification is sought for events in the past that have resulted in the wronging of present-day African-Americans; any acceptable form of rectification, therefore, must be understood to be one that is addressed to the rectification of the past wrongdoing. In this respect, the kind of claim we

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are concerned with is not a claim concerning distributive justice, in which claims can be made concerning the needs of a badly-off group. The normative basis of such claims are usually based on how well or badly off individuals are now; facts concerning past generations may be illuminating for questions concerning how present-day individuals came to be as badly, or as well, off as they are at the present time, but they are not significant for the understanding the normative basis of the relevant kind of claim. For this reason, distributive justice claims are to be classified as ahistorical.2 Our analysis of the central claim is decidedly historical. We do not plan to take a stand on whether or not the central claim is legitimate. What we plan to do is remove some conceptual doubts about its coherence that philosophers have offered, and that one hears now and again in the debate over whether anything is owed to present-day African-Americans. Our defense of the possibility of there being such a legitimate claim also has clear implications for what it makes sense to claim is owed, insofar as anything can be defended as being owed. It also has surprising implications for the question of whether there is just one legitimate claim, or different claims that are difficult to see because of the close conceptual and practical connections between the distinctive wrongs and the relevant wrongdoers. We will briefly touch upon these matters at certain points in the discussion, though they are not the central focus of the paper. 1.2

The Forwards Doubt and the Backwards Doubt

The doubt that we are concerned with interprets the central claim as saying that the present-day members of the African-American community have a claim against the state because of the enslavement of their ancestors. The specific puzzle with which we are concerned has two principal strands. First, the general question can be posed: how can that which was done to individuals generations ago be appealed to as the basis of a claim to rectification for having been wronged, given that those who are pressing the claim (a) were not even alive at the time, and (b) would not exist today had it not been for the very history in virtue of which they claim to have been wronged? Let us call (a) the question of 'how wrongs can go forward", and call (b), which is of particular importance, 'the existential worry'. The second strand of the doubt we shall call the question of 'how responsibility can go backward'. Let us suppose that sense can be made of the thought that present-day African-Americans have a legitimate claim to have been wronged by slavery. Isn't it the case that the wrongdoers, or the culpable parties, no longer exist? Are they not, in fact, our ancestors? Perhaps something is owed in the name of settling the debts of our ancestors. But this does not amount to, and ought not to be taken to be, an acknowledgment of culpability for those particular wrongs. After all, settling old debts does not amount to an acknowledgment of responsibility as the wronging party. Aside from vague fantasies about Methuselah-like figures, how could it be that the existence of modern-day culpable parties is even a possibility? At least one reason for thinking that there is no such possibility is that it is a deep feature of common-sense morality that one We do not mean to suggest, however, that no facts about a person's past are relevant for understanding what an individual may be owed in the name of distributive justice. Justice claims are now generally understood to be sensitive to considerations of an individual's responsibility for her present state. This kind of sensitivity to facts about a person's past does not, in our view, justify speaking of distributive entitlements as historically grounded.

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cannot be held responsible for that over which one had no control. Events that took place several hundred years ago certainly fall outside the relevant sphere of control, if anything does. Taking the path of least resistance we shall examine each strand individually and, in the final section of the paper, return to the question of the extent to which we have shown the central claim to be conceptually coherent. There we will consider what we take to be the limits of our analysis. Finally, our analysis explicitly takes advantage of the resources of a contractualist (non-consequentialist) framework for understanding claims of having been wronged. We do not intend to defend this framework against other ways of understanding the basis of claims to have been wronged, nor do we intend to defend our interpretation of Scanlonian contractualism. We believe that the extent to which our defense of the central claim relies on the resources of contractualism should itself count as a powerful vindication of its plausibility as a characterization of at least a central aspect of ordinary moral reasoning. 2. How Wrongs Can Go Forward 2.1

V is wronged by W via act A only if V, in the absence of A, (1) Exists (2) Is not injured or wronged by W The existential worry is that the claim of the contemporary African-Americans to have been wronged cannot be made sense of, as it will not pass the counterfactual test. The identity of the present-day African-American community is what it is because of its past and in particular because of the wrongful ways in which the ancestors of its members were treated during the period of American slavery. Were those facts to be significantly different, its identity would be quite different. For present-day African-Americans to claim to have been wronged in virtue of what was done in the past, they would have to claim that the fact of slavery is not plausibly thought of as an identity-fixing fact; that is, it would have to be the case that if slavery had never occurred, their identity would still be as it is now.

4

149

We agree with Morris that it is not intuitively plausible to deny that slavery is an identity-fixing fact. Now, thus far we have left the notion of 'identity' unanalyzed. Morris and others, particularly Derek Parfit, have taken the appeal to identity here as a metaphysical claim, and have suggested that, as a matter of metaphysics, those who constitute the modern African-American community would have been different people had its history been radically different.5 How the metaphysics of identity needs to be understood here, to best make sense of this intuition, is a matter that we will not pursue here.6 What matters, for our purposes, is that it is intuitively plausible that identity would not be preserved in the proposed counterfactual world. Why is it that accepting this intuition is supposed to a priori undermine the central claim? The line of reasoning goes as follows: to be wronged by another requires that the way one has been treated counts as a way that one is morally entitled not to be treated, and that, as a result of being treated in this way, one is adversely affected. By 'adversely affected', the thought is that one has been made worse off than one would have otherwise been had one not been treated in the objectionable way. To claim to have been wronged by another, then, involves an implicit appeal to a counterfactual. What the considerations concerning identity undermine is the availability of this counterfactual element.

The Existential Worry

The existential worry is easily seen by considering the following principle concerning wrongs, advanced by Christopher Morris in his 'Existential Limits to the Rectification of Past Wrongs'.4 According to Morris, the following is a plausible counterfactual test for the conceptual coherence of a claim to have been wronged in the kind of case with which we are here concerned:

3

The Legacy of Injustice

It is important that the relevant claims are claims to have been wronged. This suggests that an adequate analysis of the wrong in question must have a backward-looking element that is at odds with standard consequentialist analyses of wrongdoing, which explicate claims concerning moral wrongness almost exclusively in forward-looking considerations. This suggests that rectificatory claims are best analyzed in distinctively non-consequentialist terms. See T. Nagel, "War and Massacre", sect. V, for relevant discussion. On contractualism, see T.M. Scanlon, "Contractualism and Utilitarianism" and T.M. Scanlon, What We Owe to Each Other. C. Morris, "Existential Limits to the Rectification of Past Wrongs".

2.2

Contractualist Wrongs

The conception of wrongdoing as involving the harming of another, or the imposition of an unjustifiable burden upon another, is not implausible. Quite the contrary - most are inclined to find it very plausible. No doubt that is due to its associations with an understanding of culpable wrongdoing at the heart of the liberal tradition, namely the harm principle. We believe, though, that this approach to understanding wrongdoing does not do justice to our subject matter. What is required is a broader conception of wrongdoing broader, insofar as it allows for the possibility of a person's being wronged, where the basis of the person's claim need not appeal to his having been made worse off than he otherwise would have been. Scanlonian contractualism provides, we believe, a plausible account of the relevant sense of moral wrongness.7 It is not our claim, however, that in order to accept our claims as plausible, one must also accept contractualism as a plausible characterization of moral reasoning. There is no reason to think that the plausibility of our defense of the central claim requires accepting anything more than those aspects of the contractualist characterization of moral reasoning that are integral to our analysis. Two features of the contractualist account of moral wrongness are of particular interest for the purposes of our analysis. First, on the contractualist account, a wrongdoing consists in the violation of legitimate expectations concerning interpersonal consideration and conduct. Individuals are entitled to these expectations in virtue of a system of 5 6

7

D. Parfit, Reasons and Persons, 351 -379. Note, though, that it is not necessary to interpret the appeal to identity here as one of metaphysical identity. One might have in mind a more social or explicitly normative understanding of identity, concerning shared memories, customs, habits etc. For present purposes, we believe we can remain agnostic on the question of how the appeal to identity here is best understood. The 'relevant sense' here being wrongs that have a particular agent-relative character, insofar as the wrong is the wronging of another, or others, not just a wrong "from the point of view of the uni-

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principles whose purpose is to regulate how individuals ought to relate to one another if they are to do so on a basis of mutual respect as beings capable of rational selfgovernance in the pursuit of a meaningful life. A proper full explication of this claim will take us into issues that are interesting, but not relevant for purposes of this discussion.8 What is important to note is that, on the picture that emerges here, the moral system that is constituted by these principles establishes legitimate expectations for mutually respectful conduct and consideration between individuals understood, at least in some cases, to instantiate a certain type (as opposed to being a certain token). The 'type' appealed to here is that of one capable of rational self-government in the pursuit of a meaningful life. This is a normative characterization of the person that, on the contractualist account, is central for understanding the basis and contours of specific duties that persons owe one another as a matter of mutual respect. The idea here may be helpfully clarified if one imagines oneself thinking about what one might morally legitimately expect of another if one found oneself standing in a certain relation to another under particular circumstances. In so imagining, one is taking for granted that there are pre-existing legitimate expectations for how individuals ought to relate to one another which are fixed by the moral system. The principles which constitute this moral system are also important for the arbitration and clarification of these expectations in cases of conflict and uncertainty. To have wronged another, then, is to have violated certain legitimate expectations that the moral system demands that one respect in how one conducts oneself. The wrongdoing thus takes place at the point at which the wrongdoer violates certain legitimate expectations concerning conduct and consideration of others imposed on her by the moral system, with which it is reasonable to have expected the wrongdoer to have complied.9 The wronged party is at this point wronged insofar as a valid claim is created by the violation of those expectations. Notice, though, that we may only be able to characterize the wronged party or parties as those who instantiate a particular type; that is, the wrongdoer's conduct creates a legitimate claim to which any token of the relevant type is entitled to appeal as the basis of her claim to having been wronged by another. Having wronged another, then, does not, on the contractualist account, require the claim that one has made the wronged party worse off. All that is required is that there have been, at the time of the wrongdoing, certain legitimate expectations concerning interpersonal consideration and conduct with which it was reasonable to have expected the wrongdoer to comply. Insofar as she failed to do so, her conduct results in the creation of a legitimate claim to have been wronged. In the standard cases, we identify the wronged party as a particular person, and not indirectly as someone who instantiates a particular type; however, in those cases where we can identify the wronged parties as those who instantiate a particular type, we get some results that are interestingly different from the standard cases. For example, there may be a large temporal gap between For further discussion, see "Who can be Wronged?". The point of this last clause is that one ought not to be held culpable for just any violation of the legitimate expectations of others that occur as the result of her activity. In order to be held culpable, it need only be the case that it is reasonable to have expected the person to have understood herself as standing in certain kinds of relations with others, in virtue of which certain things may be legitimately expected of her concerning conduct and consideration with respect to those individuals. She need not, however, be in a position to know the particular identity(ies) of these others)) concerning the particular identity(ies) of these others, nor need there be a fact of the matter at the time, in order for her to be legitimately bound by certain legitimate expectations. For a more comprehensive discussion of this general issue, see "Who Can Be Wronged".

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the moment of wrongdoing and there being any particular person who is entitled to claim to have been wronged insofar as she is a token of the relevant type. The only thing that is necessarily the case at the moment of the wrongdoing is that the wrongdoer violate a principle which could serve as the basis of a claim to have been wronged by someone who instantiated the relevant type. With this analysis of wrongdoing in hand, we believe that we have successfully dispatched the existential worry as a threat to the central claim}0 There is another aspect of the contractualist characterization of moral reasoning, however, that is important for present purposes. Principles in the contractualist account serve as the basis for deliberation and criticism. To have a grasp of a specific valid principle in the kind of situation one finds oneself in is to see certain kinds of considerations as relevant, and others to be irrelevant, for determining how one ought to be relating to others in both thought and action. Some of these considerations - and here we come to the important aspect of contractualism essential for our analysis - may have nothing to do with the avoidance of harm, or with considerations having to do with well-being. Rather, their importance is to be explained in their relevance for persons' being able to relate to one another on terms that are mutually respectful of one another as capable of rational self-government in the pursuit of meaningful lives. The general point we are concerned to draw attention to is that the wronging of another need not be limited to actions that diminish the well-being of those who are wronged. Rather, according to the contractualist account of wronging, a person can also be wronged just in virtue of the failure to recognize their value as one who is capable of rational self-governance. Examples of a failure to recognize one's value as one capable of rational self-govemance include: stigmatization, intentional humiliation, discrimination, certain kinds of paternalism, insults and intentional sleights, and 'looking through another'. Note that while these ways of relating to others can have implications for the well-being of the wronged parties, their wrongness consists, at least in part, simply in the failure of the wrongdoer to appropriately recognize in her understanding of how to relate to others the status of the wronged parties as persons. With this in mind we can now turn to a contractualist analysis of at least one of the ways in which conduct associated with the institution of chattel slavery resulted in the wronging of African-Americans. 2.3

Slavery as Contemptuous Devaluing of Others

There is no such thing as the wrong of slavery; however, a particular kind of wrong that is relevant for understanding the central claim is that of failing to appropriately take into account, in one's thinking and conduct, the value of the other as a rational self-governor. What this draws attention to, and is otherwise easy to overlook, is the way in which Negroes - i.e., those belonging to the actual or perceived racial category - were wronged by the institution of slavery. The institution of slavery wronged them insofar as 10

This discussion of contractualism is incomplete in at least one crucial respect: it does not explain why it is that contractualism is to be understood as an analysis of not just wrongdoing, but of the basis of claims to have been wronged. One could imagine certain forms of utilitarian theory that are vulnerable to Parfuian non-identity considerations making use of the idea of a framework of legitimate expectations and the token/type apparatus to circumvent the non-identity concerns. But such an analysis would still not be an analysis of wrongness in the sense with which we are here concerned, and is crucial to the distinctiveness of our analysis. For further discussion of this general matter, see R. Kumar, "Who Can Be Wronged?".

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it presupposed a humiliating, patronizing and contemptuous understanding of their value as persons. The attitude towards them was not just that they were unlucky in the way that a conquered people who lose a war might end up being enslaved by the victors. Rather, the attitude towards them was that their status as slaves was in some sense deserved, or fitting, given their status as inferior beings, especially in regards to a capacity for rational self-governance. In this respect, the institution of slavery resembles the colonization of a people, where the attitude towards the colonized is one of a contemptuous superiority and a patronizing noblesse oblige, expressed by the purported aim of the institutions being one of 'civilizing' certain groups within the society, or if that is not possible, of finding a place in society for people of their lesser natural capacities. Indeed, when we speak of the African-American identity what we mean to appeal to is the historically specific identity which was imposed upon Negroes - despite their quite different ethnicities - who were forcibly brought, or were descended from those who were forcibly brought, to be enslaved in the territories which now comprise the United States of America. There are numerous ways that individuals in this group were wronged because they were seen to have this identity. What we wish to focus on is how they were wronged simply in virtue of taking them to be deserving of an inferior social, political and legal status. We can see, then, two important ways in which African-Americans can claim to have been wronged by slavery. In the first instance they can claim to be wronged insofar as they instantiate the type 'Negro'. The institution of slavery presupposed an understanding of those who instantiate this type as not entitled to respect as persons capable of rational self-governance. In this way African-Americans have an equal claim to be wronged as other non-Americans who instantiate, or are perceived to instantiate, the type 'Negro'. It is on this basis that we hold that many present-day Africans are also wronged by past American slavery. A second way that African-Americans can claim to be wronged by slavery is insofar as they instantiate the type 'African-American'. The wrong in question has to do with slavery's denial of protections and benefits of American citizenship to Negroes that they would have been entitled to were they of the relevant race. To the extent that these understandings of what it is to be a Negro what it is to be an African-American have not been fully repudiated in the appropriate way, slavery can continue to wrong anyone who instantiates these types. In this way, it is possible for slavery to continue to wrong African-Americans today, despite the fact that the institution of slavery no longer exists. Understanding the importance of this last point takes us to the second strand of our analysis. 3. How Responsibility Can Go Backwards 3.1

Problems with Responsibility for Historical Wrongs

In the last section we utilized aspects of contractual ist moral thinking to show how it is intelligible to say that today's African-Americans have been wronged by slavery, even though they would not have existed in its absence. This still leaves open the question of where - if anywhere - it is appropriate to direct a claim for rectification in virtue of these past wrongs. According to the central claim, present-day African-Americans have a claim to rectification against the American state as it is constituted today.

T

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There are difficulties, however, in sustaining such a claim. Chief among these is that no American alive today was personally involved (either through commission or omission) in the wrongful acts of slavery. This appears to be a problem because of the following two principles: The Rectification Principle: it is appropriate to make a claim upon X for rectification of Y only if X is responsible for Y (where Y could stand for any judgment-sensitive attitude)." One might object to the Rectification Principle on the grounds that it leaves no room for cases of strict liability; however, we need to distinguish between a rectification of a wrong and a compensation for a harm. It may indeed be the case that someone could be liable to compensate someone for a harm even if he were not responsible for the wrongful act in question (or indeed even if there were no wrongful act at all); however, this sort of compensation should not be construed as an instance of a rectification of a wrong. And since we are trying to make sense of the central claim as a response to a particular wrong associated with slavery, and not with any attendant harms, the central claim depends on the present-day existence of a culpable party. And it is here that we run up against another principle: The Responsibility Principle: X is responsible for Y only if X stands in some sort of relation of control with respect to Y. Given these two principles it follows that no American alive today is the appropriate person to make a claim upon for a rectification of the historical injustices of slavery. We agree with these principles. Indeed, they explain why it is that present-day African-Americans lack any sort of claim on other present-day Americans as individuals. Our position, however, is that there are claims upon the American state, and on the American people, both of which once had the relevant sort of control over some of the wrongful conduct associated with slavery. We pursue this line of thought further in the following sections. 3.2

The Corporate Responsibility of the State

In this section we will defend the claim that the American state, as an institution (or complex of institutions), bears corporate responsibility for its past wrongdoings. Of the many wrongs of the American state vis-ä-vis slavery, we shall focus on one that could only be accomplished by the state through the exercise of authoritative, legitimate state power. The wrong in question can be generally characterized as one of adding the authoritative imprimatur of the state to a widespread understanding of African-Americans that denies their status as persons capable of rational self-governance. It is in virtue of authoritatively legitimating the denial of the legitimate entitlement of African-Americans to respectful treatment that the state wronged them. Specifically, the state made it legitimate to engage in discriminatory practices on the grounds that African-Americans are of inferior status. Of central importance here is that the democratic state was in a unique position to confer an authoritative imprimatur on a certain pernicious understanding of the status of African-Americans. The idea of an authoritative imprimatur can be clarified by appeal See T.M. Scanlon's What We Owe to Each Other, ch. 12, for the relevant discussion of judgmentsensitive attitudes that we here presuppose.

154 Rahul Kumar and David Silver

to a simple analogy. Imagine being picked on, and called names by, other children in the playground at the mid-morning school recess break. It is one thing to be picked on by the other children, but it is another thing altogether to be picked on, and have the teacher stand by observing what is being done to you, not intervening because it is you who is the object of the bullying, rather than someone who 'counts'. The presence of the authority figure, and his or her inaction and indifference, clearly legitimates what is being done to oneself in the eyes of others, and no doubt to oneself (at least to some extent). This general kind of wronging of African-Americans by the state has at least two aspects. To the extent that slavery was a private enterprise conducted by private individuals, the state had an obligation to protect the interests of the enslaved. Insofar as the state failed to do so, either through a failure to enact policy or through a failure to fairly enforce existing policy, it failed to take the appropriate measures needed to authoritatively repudiate the understanding of African-Americans that denied their full status as persons. This constituted a serious failure of the state to comply with the minimal set of duties it owed to them. Of at least equal significance is the way in which the state's wrongdoing was accomplished through its activities, rather than its failures to act. These activities can, once more, be grouped into two general types. First, state officials, acting both in their official capacity as representatives of the state, actively propagated attitudes towards African-Americans that were clear failures to recognize their true status as persons. Examples of authoritative expressions of contempt towards African-Americans are to be found throughout the historical record of the activities of state legislatures, the Congress, state and federal courts (especially including the Supreme Court), local, state and federal police, and other agents of the state, such as Presidents and Governors. Second, chattel slavery was not an unregulated practice, hidden from the gaze of public authority, like the underground economy. Rather, it was a legally authorized institution. In holding slaves, slave owners were exercising the legal powers granted to them by the legitimate laws and regulations governing property. In other words, the state actively enabled the practice of holding slaves, by recognizing slaves as a legitimate form of property, whose use, ownership, and disposal was governed by an elaborate set of legal regulations. ' 2 It is worth noting that the denial of the status of American-Americans as persons of equal value continued to play an important role in the public deliberations of the state well after the period of legal slavery ended. One need only consider the kinds of justifications offered by authoritative institutions for the Jim Crow laws to see that. To the extent, then, that (i) the present state can be understood as minimally continuous with its past, and (ii) it is reasonable to claim that the state engaged in wrongful conduct via its conferral of legitimacy upon the denial of the reality of African-Americans as having value as persons and (iii) these ways of seeing and treating AfricanAmericans have yet to be adequately repudiated by the state, it follows that (iv) it makes sense to hold the present state culpable for the wrongs of slavery. It is on this basis that we claim that the American state bears corporate responsibility for at least the wrongs of having contributed to the authoritative legitimation of an understanding of African-Americans in virtue of which their status as persons and as being entitled to the benefits and protections of American citizenship was historically

The Legacy of Injustice

denied, and continues to be denied. In virtue of this corporate responsibility we take it that the state is obligated to repudiate these pernicious understandings of the status of African-Americans. Indeed, the state's repudiation of this understanding is necessary for its proper repudiation, as we understand it, for only the state has the power to revoke the authoritative imprimatur that it earlier conferred upon that understanding. Insofar as this has not been done to an adequate degree, contemporary African-Americans have a continuing, unmet claim upon the American state for the rectification of a wrongdoing perpetrated against them due to its activities that began during the period of chattel slavery. 3.3

We are grateful to Samuel Freeman for discussion on this point. See D. Lyons, "Unfinished Business. Racial Junctures in US History and Their Legacy".

Responsibility of the American People. Citizenship and Ethnicity

In this section we argue that the American people bears both collective liability and collective responsibility for the American state's wrongful conduct associated with slavery. In order to defend this claim we first need to distinguish two different conceptions of what it is to be an American. To be an American in one sense is to be a full-fledged citizen of the American state and thus a holder of a particular legal status. Let us refer to this as being American by citizenship. The second conception of what it is to be an American views it as being someone with a particular (for lack of a better term) etfinicity - as being defined, in part, as someone who is part of a people which, through much of its history, acted via the actions of the American state. We take it, however, that the American people acted prior to the existence of the American state, and that it was in fact the American people qua ethnicity that established the American state. The conditions for being an American by citizenship are not identical to those for being an American by ethnicity. For example, one could renounce one's American citizenship without thereby ceasing to be an American by ethnicity. Indeed, becoming an American by ethnicity involves a prolonged process of socialization and once the appropriate socialization has occurred one cannot simply decide to stop being an ethnic American. On the other hand, one could become an American citizen without going through this socialization process and thereby fail to identify with the American people qua ethnicity. Insofar as one is an American by citizenship, one is, as it were, a shareholder of the American state which bears corporate responsibility for its wrongful actions associated with slavery. Citizenship carries with it both benefits and burdens, and one of those burdens is the liability that one bears for the corporate wrongdoing committed by the state. Note that a citizen need not be the beneficiary of slavery in any direct or indirect way in order to appropriately bear this liability. It is simply one of the burdens that are part of full citizenship, a status one may have just in virtue of birth, or may acquire through a legitimate legal process. Moreover, these past wrongs of the American state need not reflect on how an American by citizenship sees oneself. That is, one's obligations as a citizen need not have any subjective implications for one's self-conception, i.e. one need not think of oneself as a 'wrongdoer', nor is some sense of collective guilt necessarily appropriate. The wrongdoing of the state in question reflects not on the character of the person but, rather, on the past quality of the ongoing state of which one is now a citizen.13 13

12

155

On Hannah Arendt's account of collective responsibility, one also gains liability for the wrongs of the state in which one finds oneself. On her account, however, there is no requirement that one be a citizen of the state one finds oneself in in order to gain liability for its past actions. See Arendt,

156

Things are different, however, when we consider Americans by ethnicity. A crucial part of the socialization process of becoming an American by ethnicity involves coming to see the actions of the American people as, in a sense, one's own. One sees the actions of the American people as 'our actions'. To the extent, then, that the American people has acted wrongly, this means that an American by ethnicity should think, 'We acted wrongly'. One might worry that it makes no sense to say that the American people (or any other people for that matter) acted. The right response to this line of thought, we believe, is that whenever persons and institutions that are recognized as being rightfully empowered to act in the name of a given people act within the ambit of their recognized authority, the people obtain what we call national responsibility for that action.14 Thus, if we can find instances where persons or institutions that are recognized as being rightfully empowered to act in the name of the American people contributed (within the ambit of their recognized authority) to the wrongs of slavery, then we should attribute national responsibility to the American people for those actions. Unfortunately, it is all too easy to find instances of such acts. We might start by looking to the adopters of the Constitution who spoke in the name of "We the People" and are (now) generally recognized to have done so authoritatively. By affirming the legitimacy of the institution of slavery these individuals implicated not only themselves, but also the American people, insofar as they are recognized as the legitimate agents of the American people acting within the ambit of their authority. Given the control that the American people exercised over slavery, the Responsibility Principle provides no barrier to thinking that the American people qua ethnicity is responsible for these wrongs. And, given this fact, the Rectification Principle provides no barrier to thinking that the American people - understood as an ethnicity - is an appropriate body upon which to make a claim for the rectification of these wrongs. This, of course, just is to address the demand for rectification to the state, as the state is now the sole legitimate and authoritative agent through which the will of the American people is enacted. We may summarize our view as follows: first, African-Americans have a direct claim to rectification from the American state insofar as it bears corporate responsibility for wrongful conduct associated with slavery, and the American people qua citizenry can rightfully be called upon to bear the liability associated with that corporate responsibility. Second, we are suggesting that African-Americans have an indirect claim against the American state insofar as it is the legitimate agent of the American people (understood as an ethnicity) which bears collective responsibility for the wrongful conduct of the American state vis-ä-vis slavery.

14

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Rahul Kumar and David Silver

"Collective Responsibility", 43-50. The persons and institutions that are recognized as being rightfully empowered to act in the name of a people - often state officials and institutions - have the power to utilize the power of the state to act in ways that are not within the ambit of their recognized authority. In such cases we recognize the existence of a kind of state responsibility for those actions that does not immediately translate into national responsibility for them. However, in the case of American slavery, the state's responsibility for the wrongs of slavery does immediately translate into the American nation's responsibility, since in many cases the official persons and institutions were acting fully within the ambit of their recognized authority.

3.4

Implications for Present-Day American Individuals

In this section we will address the implications of what we have said above for presentday American individuals. At the very least all Americans should be supportive of efforts to get the state to adequately address its own corporate wrongs. In addition, insofar as one takes oneself to be an American by ethnicity, one should be supportive of efforts of the state to adequately address the nationai wrongs of the American people. Moreover, we are open to the idea that an American by ethnicity should feel a kind of guilt (or, in any event, something closely related to guilt) in virtue of the American people's past wrongful conduct associated with slavery.15 This guilt, of course, would be quite different (in terms of its ethical implications if not in terms of its phenomenology) from the guilt one might feel in relation to one's own individual wrongdoing. It would be a guilt rooted in the recognition of what 'we did' rather than a recognition of what 'I did'. The connection between being an American by ethnicity and appropriately feeling guilt for the actions of the American people is not a simple matter, and we will not attempt to do it full justice here. Something does need to be said, though as to why it is (usually) inappropriate for African-Americans to feel guilty in virtue of the fact that the American people qua ethnicity wronged both their ancestors and themselves. Our suggestion is that it does not make sense for (most) African-Americans to feel guilt for the wrongful conduct of the American people vis-ä-vis slavery because they sensibly do not identify with the American people {qua ethnicity) according to the selfunderstanding of what it is to be an American that informed that wrongful conduct. Indeed, that self-understanding of what it is to be an American explicitly excluded the possibility of African-Americans' being full-fledged citizens. This is by no means to say that African-Americans are Americans only insofar as they are Americans by citizenship. Rather, we take it to be significant that the self-understanding of what it is to be an American has broadened through time, and has broadened in particular to see African-Americans as full members of the American people. We take it then that African-Americans can be Americans by ethnicity, but only in relation to a self-understanding of what it is to be an American that includes themselves as full-fledged members. 4.

Concluding Remarks

We have argued here that it is intelligible to make what we have been calling the central claim. According to this claim the African-American community of today has a claim to rectification against the American state in virtue of the wrongs done by the state during the period of American slavery. Although we think that this claim is intelligible, we agree that whether or not the claim is valid is a matter that can sensibly be contested. There are at least three ways in which this claim may be contested, all of which appeal to the historical record. First, one might question whether the present state, or the American people as presently constituted, are sufficiently continuous with the past to ground an attribution to them of responsibility for the wrongs of slavery. Second, one might contest the claim that the American people and/or the American state engaged in wrongful actions during the period of American slavery. Such claims strike us as deeply 15

Why a kind of guilt is appropriate (in addition to feelings of shame) is discussed in D. Silver, "Collective Responsibility and the Ownership of Actions".

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implausible, but not unintelligible. Third, one might grant that these wrongful actions occurred, but hold that they have already been adequately repudiated by the state. Here, one might appeal to the efforts associated with the civil rights movement, or national policies of affirmative action, as having provided the kind of appropriate rectification that was required. But the significance of this history, and whether it is appropriate to understand it to be entwined with rectificatory considerations, is a matter of serious ongoing debate, and can only be advanced through further research by historians, legal scholars, and other social theorists. Even if, however, we assume the central claim to he valid, it is a difficult matter to determine what this entails by way of appropriate redress. At a minimum, we hold that an official acknowledgment and apology carried out by the American state is required. Though what is involved in making an apology is reasonably clear, what counts as an acknowledgment might not be. Something further may be demanded by the idea of acknowledgment, such as a national museum documenting the extent and nature of the wrongs perpetrated against African-Americans during the period of slavery. We will not attempt here to more fully determine the requirements of rectificatory justice in relation to American slavery. Rather, we will try to diagnose the difficulty in coming to a view on this matter: we take it to be a main part of the difficulty of determining these requirements stems from the fact that what we owe to each other in terms of rectificatory justice is largely a matter of cultural convention. To the extent that these conventions differ between the wrongdoer and the victim, this diminishes the ability to easily achieve an acknowledgement of the wrong that is effectively communicated and received. Moreover, for certain kinds of collective wrongdoings there may be no cultural conventions at all on either side dealing with the appropriate way to acknowledge the wrong. Here genocide, slavery, expulsion of a people from their homeland, and other forms of systematic dehumanization come to mind. Here we want to add that the fact that no convention exists presently does not mean that we do nothing. After all, as difficult as they are to start, conventions must start somehow; and, whatever process this involves, we have an obligation to embark on it.

Bibliography Arendt, H., "Collective Responsibility", Amor Mundi, ed. J.W. Bernauer, Dordrecht, 1987. Kumar, R., "Who Can Be Wronged?", Philosophy and Public Affairs 31 (2003). Lyons, D., "Unfinished Business. Racial Junctures in US History and Their Legacy", this volume. Morris, C , "Existential Limits to the Rectification of Past Wrongs", American Philosophical Quarterly 21 (1984). Nagel, T., "War and Massacre", Mortal Questions, Cambridge University Press, 1979. Parfit, D., Reasons and Persons, Oxford University Press,1984. Scanion, T.M., "Contractualism and Utilitarianism", Utilitarianism and Beyond, ed. A. Sen and B. Williams, Cambridge University Press, 1982. Scanion, T.M., What We Owe to Each Other, Harvard University Press, 1998. Silver, D., "Collective Responsibility and the Ownership of Actions", Public Affairs Quarterly 16 (2002).

159

Colonization and Historical Injustice - The Australian Experience1

Paul Patton

Contents 1.

Decolonization and the Requirements of Justice

2.

Distributive, Reparative and Relational Justice

3.

Applicability and Limits of These Aspects of Justice

4.

Is Colonial Injustice Superseded?

5.

The Complexity of Colonial Injustice

159 160 162 167 170

1. Decolonization and the Requirements of Justice The history of European colonization followed a depressingly similar pattern in many parts of the world. In most cases, indigenous populations were dramatically reduced by the combined effects of newly introduced diseases/encroachment upon traditional lands and conflict with settlers. But whatever their number, indigenous peoples were soon relegated to the status of social minorities and their cultures marginalized. The consequences of dispossession, displacement, systematic discrimination and policies designed to force assimilation have been devastating. Colonized indigenous peoples continue to suffer higher rates of disease, mortality, unemployment and criminalization, while remaining under-represented in all the institutions of public social life. The destruction of indigenous societies in various parts of the new world is an enormous and shameful cost of the spread of European civilization. Only recently has it become possible for the descendants of colonists to begin to appreciate what was almost entirely destroyed, namely sophisticated societies with their own concepts of ecological, social and spiritual order. Confronted with indigenous peoples whose conceptions of their social and natural environment departed from European models, the colonizers tended to assume that difference automatically implied inferiority. Like those "noble races" from an earlier period who, as Nietzsche comments, 'left the concept of "barbarian" in their traces wherever they went',2 colonial governments applied different rules outside the borders of their own "civilized" world. They only recognized the authority of aboriginal nations when forced to do so, and then all too frequently set about undermining the treaties and agreements which they had signed. The collapse of the system of belief that sustained colonization, along with the reconstitution of indigenous cultures and political organization, may yet turn out to be one of the great cultural achievements of the latter part of the twentieth century. These de1 2

I am grateful to Moira Gatens for helpful comments on an earlier draft of this chapter. Nietzsche, The Genealogy of Morality, First Essay, para. 11.

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158 Rahul Kumar and David Silver

implausible, but not unintelligible. Third, one might grant that these wrongful actions occurred, but hold that they have already been adequately repudiated by the state. Here, one might appeal to the efforts associated with the civil rights movement, or national policies of affirmative action, as having provided the kind of appropriate rectification that was required. But the significance of this history, and whether it is appropriate to understand it to be entwined with rectificatory considerations, is a matter of serious ongoing debate, and can only be advanced through further research by historians, legal scholars, and other social theorists. Even if, however, we assume the central claim to be valid, it is a difficult matter to determine what this entails by way of appropriate redress. At a minimum, we hold that an official acknowledgment and apology carried out by the American state is required. Though what is involved in making an apology is reasonably clear, what counts as an acknowledgment might not be. Something further may be demanded by the idea of acknowledgment, such as a national museum documenting the extent and nature of the wrongs perpetrated against African-Americans during the period of slavery. We will not attempt here to more fully determine the requirements of rectificatory justice in relation to American slavery. Rather, we will try to diagnose the difficulty in coming to a view on this matter: we take it to be a main part of the difficulty of determining these requirements stems from the fact that what we owe to each other in terms of rectificatory justice is largely a matter of cultural convention. To the extent that these conventions differ between the wrongdoer and the victim, this diminishes the ability to easily achieve an acknowledgement of the wrong that is effectively communicated and received. Moreover, for certain kinds of collective wrongdoings there may be no cultural conventions at all on either side dealing with the appropriate way to acknowledge the wrong. Here genocide, slavery, expulsion of a people from their homeland, and other forms of systematic dehumanization come to mind. Here we want to add that the fact that no convention exists presently does not mean that we do nothing. After all, as difficult as they are to start, conventions must start somehow; and, whatever process this involves, we have an obligation to embark on it.

Bibliography Arendt, H., "Collective Responsibility", Amor Mundi, ed. J.W. Bernauer, Dordrecht, 1987. Kumar, R., "Who Can Be Wronged?", Philosophy and Public Affairs 31 (2003). Lyons, D., "Unfinished Business. Racial Junctures in US History and Their Legacy", this volume. Morris, C , "Existential Limits to the Rectification of Past Wrongs", American Philosophical Quarterly 21 (1984). Nagel, T., "War and Massacre", Mortal Questions, Cambridge University Press, 1979. Parfit, D., Reasons and Persons, Oxford University Press, 1984. Scanion, T.M., "Contractualism and Utilitarianism", Utilitarianism and Beyond, ed. A. Sen and B. Williams, Cambridge University Press, 1982. Scanion, T.M., What We Owe to Each Other, Harvard University Press, 1998. Silver, D., "Collective Responsibility and the Ownership of Actions", Public Affairs Quarterly 16 (2002).

Colonization and Historical Injustice - The Australian Experience1

Paul Patton

Contents 1.

Decolonization and the Requirements of Justice

159

2.

Distributive, Reparative and Relational Justice

160

3.

Applicability and Limits of These Aspects of Justice

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4.

Is Colonial Injustice Superseded?

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5.

The Complexity of Colonial Injustice

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1. Decolonization and the Requirements of Justice The history of European colonization followed a depressingly similar pattern in many parts of the world. In most cases, indigenous populations were dramatically reduced by the combined effects of newly introduced diseases/encroachment upon traditional lands and conflict with settlers. But whatever their number, indigenous peoples were soon relegated to the status of social minorities and their cultures marginalized. The consequences of dispossession, displacement, systematic discrimination and policies designed to force assimilation have been devastating. Colonized indigenous peoples continue to suffer higher rates of disease, mortality, unemployment and criminalization, while remaining under-represented in all the institutions of public social life. The destruction of indigenous societies in various parts of the new world is an enormous and shameful cost of the spread of European civilization. Only recently has it become possible for the descendants of colonists to begin to appreciate what was almost entirely destroyed, namely sophisticated societies with their own concepts of ecological, social and spiritual order. Confronted with indigenous peoples whose conceptions of their social and natural environment departed from European models, the colonizers tended to assume that difference automatically implied inferiority. Like those "noble races" from an earlier period who, as Nietzsche comments, 'left the concept of "barbarian" in their traces wherever they went',2 colonial governments applied different rules outside the borders of their own "civilized" world. They only recognized the authority of aboriginal nations when forced to do so, and then all too frequently set about undermining the treaties and agreements which they had signed. The collapse of the system of belief that sustained colonization, along with the reconstitution of indigenous cultures and political organization, may yet tum out to be one of the great cultural achievements of the latter part of the twentieth century. These de1 2

I am grateful to Moira Gatens for helpful comments on an earlier draft of this chapter. Nietzsche, The Genealogy of Morality, First Essay, para. 11.

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velopments have made possible an appreciation of the injustice involved in colonization that extends beyond the indigenous communities most affected. They have enabled many countries that were established through colonization to embrace the project of establishing just relations between their indigenous and non-indigenous peoples. In Australia, this project was formally adopted in 1991 with the passage of an Act of Parliament designed to achieve reconciliation between indigenous and non-indigenous peoples by the end of the decade.3 Two of the judges in the 1992 Mabo judgment - a landmark High Court decision which acknowledged the survival of common law Aboriginal title to land - expressed a similar aspiration for the recognition of past injustice when they said that the "acts and events" by which legal dispossession was carried out "constitute the darkest aspect of the history of this nation. The nation as a whole must remain diminished unless and until there is an acknowledgment of, and retreat from, those past injustices".4 In a speech given the following year, in the context of fierce national debate over the far-reaching revision to the legal terms of colonization proposed in Mabo, Prime Minister Keating asserted that this judgment had created a unique opportunity for the country to reconstruct the fundamental relationship between the nation and its indigenous people "on just foundations".5 Nevertheless, in Australia as elsewhere, this process of internal decolonization has stalled, partly because of an inability to agree on the requirements of justice in this context. While there is widespread agreement that colonization involved injustice towards indigenous peoples, there is less agreement over the respects in which colonization was unjust and how we should respond to that injustice. Given that it is beyond our power to change the past, and assuming that our primary responsibility is towards the present and the future, what is required now to establish relations with indigenous citizens on just foundations? Contemporary political philosophy offers at least three distinct paths toward an answer to this question: one oriented towards the present distribution of rights and social goods on the basis of a presumption of equal entitlement for all; one oriented towards reparation or restitution in respect of past wrongful acts; and one oriented towards the establishing of relations of mutual recognition and respect between the indigenous and settler communities within a given postcolonial state. While the discussion that follows is geared to the circumstances of decolonization in Australia, the overriding aim is to argue that all of these approaches are necessary to address the complex and interdependent forms of historical injustice involved in colonization and that none by itself is sufficient. For this reason, they may be regarded not as alternative approaches to the injustice of colonization but as complementary approaches to distinct aspects or dimensions of injustice, each of which is relevant although in varying degrees according to the details of a particular colonial history. The complexity of the injustice involved also has consequences for criticisms directed at each of these aspects of justice taken separately. Accordingly, the latter sections of this chapter will examine the consequences of the interdependence of these three dimensions of injustice for Jeremy Waldron's influential criticism of the applicability of reparatory justice to the present circumstances of decolonization.6 3 4 5 6

Council for Aboriginal Reconciliation Act 1991 (Cth). For a brief discussion of this project and its failure see P. Patton, Reconciliation, droits aborigines et paradoxe constitutionnel en Australie. Deane and Gaudron, in The Mabo Decision, 82. Mabo v Queensland (1992) is reported at 175 CLR l;66ALJR408;107ALRl. Keating, The H. V. Evatt Lecture, 6. J. Waldron, "Historic Injustice"; ders., "Superseding Historic Injustice"; ders., "Redressing Historic Injustice".

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161

Distributive, Reparative and Relational Justice

The first approach relies upon the principle of equality as the only acceptable basis for the distribution of rights and access to social goods. According to this view, justice involves equal treatment for all, where this requires not only the formal equality that comes with equal treatment before the law and the absence of discrimination, but also substantive equality of access to public goods and services. The concept of substantive equality implies that all individuals and communities should enjoy the same services and benefits of citizenship, regardless of race or circumstance. The underlying idea is that all individuals are of equal moral worth and that none should be disadvantaged, relative to others, through no fault of their own. The equality approach provides a philosophical basis for the current Australian government's policy of "practical" reconciliation which aims to target government services and expenditure at key areas of indigenous disadvantage, especially health, employment and education. Here, as in many other countries, the indigenous population is significantly disadvantaged relative to other citizens in relation to health, education, employment, treatment by the criminal justice system and a range of other indicators of socio-economic well being. Whether or not these inequalities can be directly attributed to policies inflicted by colonial governments, they constitute a clear case of undeserved disadvantage. Liberal justice requires that they be removed. According to some theorists, the equality based approach to justice also provides limited support for differential political rights. Thus, Will Kymlicka relies on the principle of equality with respect to access to basic goods in order to argue for minority cultural rights. He argues that, since liberal equality guarantees to each individual "an equal share of resources and liberties in order to pursue the things they value",7 and since cultural membership is a crucial resource which individuals require in order to exercise their freedom to choose and revise their life plans, all should be entitled to the good of cultural membership on an equal basis. Since the viability of minority cultures may be threatened by the actions of the majority in multicultural states, there is justification for differential treatment in the form of special rights to protect minority cultures. However, as Kymlicka acknowledges, there are limits to the degree and kinds of differential rights that may be supported by this argument.81 comment further below on the limitations of this approach to colonial injustice. The second approach relies on the idea that justice should involve reparation or recompense for past injustice or wrongful actions. It is a common response to historic injustice to invoke the inalterability of the past. However, the effects of past injustice may continue to be felt in the present. The force of the appeal to reparative justice lies in the fact that, although we cannot undo the past, we can change the present to make it as if the past event had not occurred. The simplest case is restitution where this involves the replacement of a stolen item.9 Restitution is an accepted principle in law as well as in the practice of treaties or other agreements between indigenous peoples and colonial states. This principle lies behind the commonsense view that, since colonization in7 8 9

W. Kymlicka, Liberalism, Community and Culture, 182. W. Kymlicka, Multicultural Citizenship, 109f. Waldron suggests that this amounts to "a sense in which we can affect the moral significance of past action" (J. Waldron, "Superseding Historic Injustice", 7). However, it is not obvious that the moral significance of past acts of dispossession or the violation of rights is affected by efforts to redress some of the consequences. Is it the moral significance of theft which is affected by restitution or is it rather precisely because of the moral significance of theft that restitution is an appropriate remedy?

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volved unjust appropriation of Aboriginal lands, a just settlement must begin with recognition of their historical claim to the lands and other goods that were stolen from them. David Lyons outlines this kind of argument as the "natural" way of reasoning about Native American land claims: "Before the European invasion of America, the land belonged to them. In the course of that invasion and its aftermath, the land was illicitly taken from them. The rightful owners of the land were dispossessed ... Ideally, the land should be restored to its rightful owners".10 There are, of course, severe difficulties with the suggestion that land should be restored in its entirety to the descendants of the rightful owners. Lyons, Waldron and others have provided good reasons to dispute the claim of historical entitlement. These will be considered in more detail below as I seek to question the force of these criticisms in their application to present colonial circumstances. However, even if the principle of reparation were fully accepted alongside the principle of equality and compensation for undeserved disadvantage, this would not exhaust the present requirements of justice for colonized indigenous peoples. The third approach focuses on the character of the relationship between elements of the political community in question. What is missing from considerations of distributive or reparative justice is respect for the other parties to the colonial relation. In particular, the concepts of distributive and reparative justice do not address the sense of injustice that flows from the belief that colonization itself was a violation of fundamental rights of indigenous peoples. For this reason, James Tully privileges a third conception of justice which requires a certain kind of recognition of others. He begins his Seeley lectures by suggesting that, among the many questions of justice which may be raised in relation to the situation of colonized indigenous peoples, "a certain priority is claimed for justice with respect to cultural recognition in comparison with the many other questions of justice that a constitution must address".11 Tully argues that the question of justice for colonized indigenous peoples is a special case of justice with respect to cultural recognition. This question is posed in respect of constitutional arrangements and as such enjoys priority since the answer given will determine the normative and institutional framework within which other questions of justice (with regard to the distribution of social goods and the rectification of historical justice ) will be addressed. Tully further asks what principles of constitutional association could sustain a just relationship between indigenous and non-indigenous peoples. His answer points to the "common constitutionalism" that emerged in the course of interactions between Aboriginal and Common Law systems during the early modern period. This Aboriginal and Common Law system rested upon the three principles of mutual recognition, consent and continuity of entitlements as these were expressed in the Great Law of Peace of the Iroquois Confederacy, the Royal Proclamation of 1763 and in the US Supreme Court judgments of CJ Marshall especially Worcester v State of Georgia 1832. These are "norms that come into being and come to be accepted as authoritative in the course of constitutional practice, including criticism and contestation of that practice".12 Tully argues that this set of common constitutional principles provides a normative framework which embodies the principles of just association between European and Aboriginal nations.

10 11 12

D. Lyons, 'The New Indian Land Claims and Original Rights to Land", 358. J. Tully, Strange Multiplicity, 6. Ibid., 116.

163

3. Applicability and Limits of These Aspects of Justice The first point to note about these three approaches to the injustice of colonization is that each of them will be more or less relevant in a particular context, depending upon the historical details of the process of colonization and the resultant legal and constitutional form of capture of indigenous land and resources. For example, in those parts of North America or in countries such as Aotearoa/New Zealand where treaties purporting to set the terms of cooperation between European and indigenous nations were signed, demands for reparation or restitution with regard to failure to meet the terms of a given treaty will often be appropriate. By contrast, in Australia where no treaties of any kind were entered into and where the assertion of sovereignty and subsequent allocation of property rights took place on the basis of the principle of terra nullius, the question of recognition of Aboriginal peoples as peoples with their own laws, cultures and systems of governance assumes particular importance. Here, colonial occupation took the extreme form of a refusal to acknowledge in any way the prior existence and authority of indigenous law and custom. The sovereign authority of present Australian governments derives from the British sovereignty which was imposed on indigenous peoples without their consent and without regard for their laws and practices of government. As a result, there is good reason to suppose that justice toward indigenous people in the present requires recognition of the past and continuing injustice that flows from the non-recognition of rights and duties associated with indigenous law and culture.13 A second conclusion to be drawn is that in itself each of these approaches is deficient as a response to the injustice of colonization. For example, Tully's argument is open to the following objection: it is all very well to spell out the principles of a just constitutional association. It is helpful to know that the three conventions of recognition, consent and continuity have been incorporated into some legal and political institutions at some periods during the long history of European colonization. But in the end, these are no more than the principles of an ideal form of association which does not obtain in practice. It may be useful to envisage an historically counterfactual state of affairs in which colonization as we know it did not occur but quite different modes of contact between European and indigenous peoples did take place. These might have allowed indigenous societies to adopt elements of European culture and technology on their own terms and at their own pace. Novel and sustainable hybrid cultures may have evolved instead of the demoralized cultures of poverty and welfare dependence that are often the consequences of colonialism. In these terms, Tully's thought experiment provides us with a normative ideal against which present constitutional and political relationships between indigenous societies and settler states may be judged. But this does nothing to alter the unequal power relations that do in fact obtain. It does little to undermine the asymmetrical relations between European and indigenous law, culture and belief systems. These consequences of colonization and the system of colonial domination which they sustain remain largely intact and unchanged, along with substantial disparities in access to basic social goods.14

13

14

Aboriginal leader and former chair of the Council for Aboriginal Reconciliation, Patrick Dodson refers to "the reconciliation of recognition" and clarifies what this means by saying that: 'The sovereign position that Aboriginal peoples assert has never been ceded. Recognition starts from the premiss that terra nullius and its consequences were imposed upon the Aboriginal peoples ...", P. Dodson, "Lingiari - Until the Chains are Broken", 266. J. Tully responds to this kind of criticism in 'The Struggles of Indigenous Peoples for and of Freedom", 36-59.

164 Paul Patton

The equality based policy of practical reconciliation may also be argued to be of limited value in that it only addresses the consequences of colonization, without regard to the particular circumstances of dispossession, relocation and forced assimilation as these were carried out under colonial administrations. To the extent that other requirements of justice such as reparation or recognition are not addressed, this approach alone is an inadequate response to the injustice of colonization. Kymlicka's argument for minority cultural rights is equally open to criticism with regard to the limited manner in which it addresses the consequences of colonization. While it may be applied to the situation of indigenous peoples in Canada, Australia and elsewhere, it only addresses their situation at a certain level of generality, namely in so far as these peoples are in a position of disadvantage with respect to the survival of their culture as a consequence of conditions beyond their control. It is apparent that Kymlicka's argument for minority cultural rights will apply to any group that is a minority through no fault of its own, say a population relocated in response to natural or economic disaster. Indeed, the argument in Liberalism, Community, and Culture relies upon treating the disadvantage to which indigenous minority cultures are subject as equivalent to natural rather than chosen disability. There are a number of ways in which this neglects specific features of colonization and the resultant cultural marginalization of indigenous peoples. The argument owes nothing to the fact that these are indigenous peoples with their own cultural values and forms of attachment to their lands. It does not address the sense of injustice at the very fact of colonization and the associated failure to acknowledge Aboriginal law and culture. Even less does it address the sense of injustice that flows from the particular legal form assumed by colonization in Australia, namely, the imposition of British sovereignty and law on the grounds that this country was a legal terra nullius. Finally, as Waldron has pointed out in the series of papers referred to earlier (see note 6 above), there are a number of problems with the application of narrow principles of rectification or reparatory justice in order to eliminate or ameliorate the consequences of colonial injustice. This approach treats the injustice as an isolated act located in the past and seeks to rectify the consequences of that act. The problems have to do with the length of time that has elapsed since the initial injustice occurred and, as a consequence, the difficulty of determining how the present might look if that original injustice had not taken place. One set of problems arises in relation to the manner in which the counterfactual present involves assumptions about choices on the part of those affected. How do we know what the original owners may have decided to do with land? How do we know what anyone will decide until they actually make a decision? This problem becomes particularly intractable when the choices that could affect present outcomes extend over generations and where these are path-dependent so that certain choices will affect the possibility of future choices or even the very existence of the subjects of possible choices.15 In "Superseding Historic Injustice", Waldron canvasses one possible response, namely to rely on rational choice assumptions such that no choice would be supposed to leave the chooser worse off. On this basis, we could at least determine a minimal level of present outcomes of past choices and then compensate according to the difference between this minimum and the actual condition of present descendants of those dispossed. In this way, it would be possible to alter present circumstances in the direction that they may have taken if past injustice had not occurred.16 At this point, however, further problems arise. Firstly, we need to consider the way in which injustices perpetrated by a few will affect outcomes for all those who trade in 15 16

See J. Waldron, "Redressing Historic Injustice", 61f. J. Waldron, "Superseding Historic Injustice", 11.

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the market in land. In this way, by virtue of the contagion of injustice through the market, it is not just the present holders of illegitimately obtained land who benefit from injustice, but all present landholders.17 However, this only presents a problem for reparative justice if we rely on narrow Nozickean assumptions about the transmission of injustice through property transfers and the resultant responsibility for the costs of reparation. Market contagion is only a problem because it expands the class of beneficiaries of the initial injustice to include those with scrupulously just titles to their land, when it was assumed that only the descendants of the perpetrators of injustice would benefit and should therefore bear the cost of reparation. In response, it may be argued that the principle underlying this attribution of responsibility in the present is defective since there may well be descendants of perpetrators who have in fact derived no benefit from the illicit acts of their forebears. More importantly, the contagion argument may be irrelevant with regard to the justice of any acquisition under the particular conditions of colonization. In the Australian case, where it was assumed that there were no owners of the land prior to the arrival of the British Crown, it may be argued that that all subsequent allocations or transfers of title are infected by the injustice of this initial imposition of sovereignty. In fact, like the contagion of property acquisition on the basis of the terra nullius principle, the contagion of injustice through the market might be used as an argument for assigning responsibility for reparations to the entire present population of beneficiaries. An obvious procedure to distribute the costs of reparation in this manner would be via the tax system. Bigelow, Pargetter and Young argue for this kind of response in suggesting that present day non-indigenous Australians as a whole have a responsibility to compensate the indigenous population. Their approach is structural rather than linked to individual unjust acts. They suggest that the responsibility on the part of non-indigenous people derives from the fact that their level of well-being is causally linked to indigenous dispossession: "the essential part of the argument for compensation is that a causal path can be traced from the low well-being of the Aborigines to the high wellbeing of the whites, and the high well-being of the whites is traceable to the low wellbeing of the blacks".18 In common with this wholistic approach, it might be argued that the distribution of benefits through the market actually simplifies the problem of assigning responsibility for the present consequences of wrongful dispossession. An analogous problem also arises in relation to the putative beneficiaries of reparation, namely the descendants of those dispossessed. They would be "privileged" relative to other disadvantaged individuals in that they would be insulated from the consequences of poor judgment or external circumstances in a way that the others are not. This seems unfair and likely to fuel resentment among elements of the non-indigenous underprivileged. Resentment of precisely this kind did in fact emerge in Australia and assume a political form around Pauline Hanson and the "One Nation" movement. However, in this case, too, the problem arises because of the assumption that it is only the descendants of those who suffered wrongful dispossession who should be compensated for undeserved disadvantage. As Waldron implicitly recognizes, some liberal theories of equality such as Dworkin's resource equality would indeed recommend rectifying the situation of all those disadvantaged through no fault of their own.1 17 18

19

J. Waldron, "Superseding Historic Injustice", 1 If. J. Bigelow, R. Pargetter and R. Young, "Land, Weil-Being and Compensation". Justice Brennan supports this approach in his Mabo judgment when he notes that the dispossession of Aboriginal peoples "underwrote the development of the nation" (The Mabo Decision, 50). In "Superseding Historic Injustice", 13, he writes: "Ultimately, what is raised here is the question of

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Paul Patton

More generally, the objection here involves the moral arbitrariness of singling out the injustice of colonial dispossession from amongst all the other injustices or undeserved harms perpetrated on the ancestors of the present population. In reply, it may be argued that the appearance of arbitrariness is an effect of confining the issue to that of reparation for the loss of property. If we take a broader view of the colonial experience, then it is apparent that property loss forms only a part of the injustice suffered by indigenous peoples: forced resettlement, violence and sexual assault, confinement under so called "protection acts", subjection to policies of assimilation and removal of children are some of the additional ways in which their culture, self-esteem and agency were systematically undermined. Against the background of a broader understanding of the nature and effects of colonial administration, reparation might be described not simply as the attempt to rectify the consequences of particular past injustices but rather as part of the attempt to constitute a moral and political community where before there was none.20 Viewed in this light, the significance of reparation payments is as much a matter of symbolism as it is an attempt to erase the material consequences of past injustice. Like acts of apology, reparations signal the desire for a form of moral community based upon mutual recognition and sympathy for past suffering. In these terms, the payment of reparations concerns the form of relationship between the indigenous and non-indigenous communities and falls under the purview of relational rather than reparatory justice. Of course, these are not mutually exclusive and the point here is to suggest that treating them as separate approaches to the issue of justice or injustice is in large part a matter of theoretical artifice. The general conclusion to be drawn from these difficulties in application to colonial circumstances is that, in this context, considerations of relational, distributive and reparative justice and injustice cannot easily be separated. The injustice of colonization is a complex phenomena involving elements of all three approaches to justice and an adequate response must necessarily take this interdependence into account. To the extent that injustice in colonial contexts often involves communal property and the rights of corporate entities such as a people, clan or kin group, the problem of restitution might be supposed to be simplified since these are entities that persist over time even though their members change. Restitution would seem to be simply a matter of returning land or other resources to its owners. In fact, however, the circumstances of colonial history often complicate the issue of the persistence even of such corporate entities. Thus, in the Australian case, the Mabo judgment recognized that the relationship of a particular group to a parcel of land may have been obliterated by virtue of the fact that the relevant coroporate entities had not survived, or that their relationship to the land in accordance with traditional laws and customs had not been maintained. In at least one major case involving Aboriginal people in the relatively settled south east of the continent, the claimed entitlement has been found to have been swept away by the

20

whether it is possible to rectify particular injustices without undertaking a comprehensive redistribution that addresses all claims of justice that may be made ... ". The point has often been made in the Australian debates over reconciliation, as it has elsewhere, that symbolic reparations - including apologies - are important for the constitution of collective identity as a moral community. Although his primary concern is with material reparation, Waldron acknowledges the importance that recollection and acknowledgment of past injustice may have for the constitution of individual and collective identity: "Quite apart from any attempt genuinely to compensate victims or offset their losses, reparations may symbolize a society's undertaking not to forget or deny that a particular injustice took place, and to respect and help sustain a dignified sense of identity-in-memory for the people affected" ("Superseding Historic Injustice", 6).

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"tide of history".21 The issues here include whether or not the claimant group is sufficiently continuous with the one which was dispossessed and, in the terms of the test established for the continuation of native title, whether or not the traditional relationship with the land in question had been maintained. In addition, there remains the fundamental issue of whether or not that relationship is sufficient to sustain a form of ownership which includes the right to exclude or at least to limit the use and access of others, and whether such a property right persists through the change of circumstance which comes with colonization. 4.

Is Colonial Injustice Superseded?

The problems raised in relation to reparation for past unjust acts do not automatically arise in cases where the unjust act itself is ongoing. The rectification of injustice in this situation need not involve counterfactual reasoning since, at least in the first instance, the appropriate response is to put an end to the ongoing injustice, leaving open the question of restitution or compensation for the previous loss of enjoyment. This is in effect the procedure followed by the Australian High Court in Mabo. By dispelling the legal misconception that ownership of land had passed to the Crown upon the assertion of sovereignty, and by showing how the common law allowed that a form of Aboriginal title to land could survive the change of sovereignty, the Court put an end to the injustice in respect of indigenous property right which had been perpetrated since 1788. However, at the same time, a bare majority of the judges held that there were no legal grounds for compensation for past unjust appropriation of land. This did not necessarily mean that they thought there was no moral basis for compensation, but only that they did not provide grounds for a legal remedy. Perhaps they took the view this was a matter more appropriately addressed by political means. However, Waldron points out that a different set of problems does arise in connection with the idea that injustices initially committed in the past are ongoing. Most importantly, problems arise in connection with the underlying view of property entitlement that supports reparative claims. The assumption here is that, once acquired, entitlements continue until they are relinquished or transferred. Against this view, Lyons and Waldron both argue that entitlement and rights are sensitive to the passage of time and changes of circumstances. It is not a novel idea in law that rights may fade as circumstances change. There are good pragmatic reasons for statutes of limitations and for the doctrine of adverse possession. But there are also reasons of principle for thinking that entitlements may change over time. These involve, firstly, the basis of rights themselves. Lyons and Waldron follow Nozick in rejecting Locke's labor theory of initial entitlement to land as too strong, making it difficult to explain how subsequent transfer of entitlement is possible. Waldron replaces the Lockean theory with an account that relies upon the degree to which the land in question has become part of the individual's life plans and projects, or her general "structure of action". Acquisition that disrupts the plans of no one else may be supposed to take priority over acquisition that does disrupt another's plans. However, Waldron points out, this asymmetry is sensitive to changes of

21

The Members of the Yorta Yorta Aboriginal Community v State of Victoria (1998) FCA 1606. This case was upheld in the Federal Court (Yorta Yorta v Victoria (2001) 110 FCR 244) and then in the High Court (Members of the Yorta Yorta Aboriginal Community v Victoria 2002 HCA 58. Similar issues are raised in the case involving Maori fishing rights and Urban Maori Athorities discussed by J. Waldron, "Redressing Historic Injustice", 64-6.

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circumstance which affect the plans of the parties involved. Thus, the entitlement of original owners will weaken over time if they are separated from the land. This seems to provide an incentive to hold onto stolen land. Waldron accepts this consequence of the theory, but concludes that it shows the tension between an argument for property entitlements based on autonomy and the desire for such entitlements to be imprescriptible.22 Whatever the precise details of the basis of original entitlement, if entitlement is sensitive to background circumstances then it is vulnerable to prescription. This is the core of Lyons' argument against the common sense view that Native American land claims are founded on the violation of rights which were in operation at the time of invasion and which remain in force today: "From the fact that they had morally defensible claims two hundred or four hundred years ago it cannot be inferred that those claims persist".23 It is also the key argument for Waldron's conclusion that historic injustice may be superseded. He suggests that the principle of sensitivity to circumstances, which implies that what is legitimate acquisition in one case is not necessarily so in another, is already implicit in Locke's proviso that acquisition of land in a state of nature is legitimate only as long as we leave "enough and as good" for others. If we further suppose, as the rejection of Locke's theory of original acquisition above suggests, that property entitlement is not once and for all but that its legitimacy may be open to challenge at any moment, then legitimate entitlement will depend on circumstances at the time. It is as though the claim were renewed each time. As a consequence, legitimacy may fade over time as circumstances change: the legitimate ownership of a waterhole in times of plenty may not entail the right to exclude others in times of scarcity. Lyons and Waldron both argue that it is ownership rights themselves which are variable rather than saying that rights of ownership might be overridden by, say, a humanitarian duty to redistribute property to others. Lyons takes the view that "property rights themselves, and not just their exercise or contents, are relative to circumstances", while Waldron argues that property entitlement is itself a set of claim rights, liberty rights and powers that are "circumstantially sensitive".24 In a world in which there is enormous poverty and disparity of entitlement, this might appear to render all property rights precarious.25 Apparently unpeturbed by this consequence, Waldron develops the further argument that, if legitimate entitlement is sensitive to changes in background circumstances, then the same must apply to illegitimate acquisition. He gives an example in which the violation by one group of the legitimate rights of others to a given waterhole is overtaken by ecological catastrophe such that the interlopers acquire a right to share what they had wrongly begun to use. In these circumstances, "they are entitled to share that water hole. Their use of Hg no longer counts as an injustice; it is now in fact part of what justice now requires. The initial injustice by F against G has been superseded by circumstances".26 More gener22 23 24 25

26

J. Waldron, "Superseding Historic Injustice", 25; J. Waldron, "Redressing Historic Injustice", 70. D. Lyons, "The New Indian Land Claims", 375. D. Lyons, "The New Indian Land Claims", 370; J. Waldron, "Superseding Historic Injustice", 23; J. Waldron, "Redressing Historic Injustice", 67f. If the implications of this conclusion do not alarm Lyons and Waldron, then it is not clear why they should be concerned about large scale transfers of property or wealth in the course of rectifying the historical injustices of colonization. J. Waldron, "Redressing Historic Injustice", 68; see also page 70, where he writes: "it seems possible that an act which counted as an «'«justice when it was committed in circumstances Q may be transformed, so far as its ongoing effect is concerned, into a just situation if circumstances change in the meantime form C] to C 2 . When this happens, I shall say the injustice has been

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ally, unjust infringement of rights of others may become justified in light of changed circumstances. This conclusion is unavoidable unless we make legitimate entitlement impervious to circumstance. It follows then that a change in circumstances might justify forcing the indigenous owners of a given territory to share their land with others, even though it might have been unjustly appropriated in the past: "If circumstances make a difference to what counts as just acquisition, then they must make a difference also to what counts as an unjust incursion".27 This argument leaves unanswered a number of questions about the terms and conditions on which territory might be shared. Does it imply that sovereignty over the entire territory ought to be ceded? Does it imply that indigenous people should be removed or excluded from their traditional lands? These are exactly the kinds of changes forced upon in the course of colonization. Nevertheless, let us assume for the sake of argument that the case for the possibility of supersession of injustice is sound. It does not follow that this has in fact occurred in any particular colonial context. Waldron admits that the conceptual possibility of historic supersession does not mean that it has occurred in any given situation: "Everything depends on which circumstances are taken to be morally significant and how as a matter of fact circumstances have changed".28 Nevertheless, he does think that the changes which have occurred in countries such as Aotearoa/ New Zealand and Australia are "exactly the sort of facts one would expect to make a difference to the justice of a set of entitlements over resources". These include the fact that "population has increased manyfold and the descendants of the colonists have nowhere else to go", as well as the occurrence of "demographic and ecological changes".29 While it is undoubtedly true that such changes have taken place, their precise moral implication remains to be determined. There are, after all, significant differences between the kind of case on which Waldron relies in order to argue for the possibility of supersession and the actual circumstances of colonization. The argument for the conceptual possibility of supersession relies on a hypothetical case of ecological disaster such that the need of others to make use of the resources owned by the indigenous population was both extreme and brought about by circumstances beyond their control. It is by no means clear that the colonial occupation of countries such as Aotearoa/ New Zealand and Australia occurred under morally similar circumstances. Whatever the reasons for the initial settlement in indigenous territories, and whatever the justification for the initial claims to sovereignty over these territories, their effective occupation took place over centuries and, in the Australian case, involved neither negotiations nor treaties with the indigenous inhabitants. These were not regarded as having any rights or entitlements which required recognition and, as a result, the issue of whether or not settlement occurred in response to a greater need or in response to circumstances beyond the control of those who came never arose. In the terms of Waldron's example, it is relevant to the entitlement of the colonists to ask whether there is a compelling moral case for their appropriation of indigenous land. Yet it is far from obvious how we would begin to answer this question. The historical reality of the motives behind colonization and the often brutal manner in which it was carried out are simply glossed over in benign talk of population increase, demographic and ecological changes.

27 28 29

superseded" (See also J. Waldron, "Superseding Historic Injustice", 24). J. Waldron, "Redressing Historic Injustice", 68; see also J. Waldron, "Superseding Historic Injustice", 25. J. Waldron, "Redressing Historic Injustice", 71, see also J. Waldron, "Superseding Historic Injustice", 25. J. Waldron, "Superseding Historic Injustice", 26.

170

Paul Patton

Moreover, even if we accept that questions about the circumstances and methods of colonial occupation have no bearing on the situation of the descendants of the original colonists, it still remains to be asked how exactly the changes wrought by colonization (increase of the settler population, ecological changes, etc.) affect the claims of the descendants of the indigenous owners. Assuming that wholesale repatriation of the settler population is not an option, how should we strike a balance between their interests and those of the surviving indigenous peoples? It is surely too strong to suggest that the interests of the latter group are simply invalidated by virtue of the supersession argument. Perhaps they should be modified to the extent necessary to take into account the legitimate interests and aspirations of the descendants of the original invaders? Conversely, we may ask whether the interests of these descendants and other more recent arrivals exclude the possibility of considerable reparation for those who still suffer the adverse consequences of historical injustice? 5.

The Complexity of Colonial Injustice

Waldron's discussion of the possible supersession of property entitlements approaches the issue of Aboriginal claims to land and resources from the perspective of historic injustice in order to ask whether what may have been unjust appropriation by settlers in the past continues to constitute injustice in the present (given the changes in background circumstances etc.). By contrast, Justice Brennan's judgment in Mabo approaches the issue from the perspective of the principle of equality and suggests that the legal justifications previously offered for refusing to recognize indigenous rights and interests in land are "unjust and disciminatory" and can no longer be accepted: "It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands".30 In practice, with regard to the nature of native title and the conditions under which it may have evaporated or be susceptible to extinction by the Crown the Mabo judgment and subsequent decisions confirm that it is a weaker form of title destined to give way to the interests of other land users. Although the arguments advanced for treating native title in this way are legal and pragmatic rather than moral, the end result is not dissimilar to the outcome suggested by Waldron's argument for prescriptibility. In effect, the issue of justice in respect of indigenous entitlements to land involves questions of equal treatment before the law, of the continuation of the corporate entity which has the entitlement and the relationship to land on which it is based, as well as the legitimate rights and expectations of the non-indigenous population. In addition, it may be argued that the ongoing injustice - wrongful dispossession - is also bound up with another form of continuing injustice, namely the lack of acknowledgment, recognition and respect for the identity, law and culture of a particular people. This was a crucial part of the legal basis on which Aboriginal land was appropriated in the Australian colonies: it was only possible to consider the land terra nullius and therefore legally available for claim on the condition that Aboriginal law was not recognized as law and the people not recognized as capable of having legitimate entitlements to property. To the extent that Aboriginal law and culture has survived, then the failure to recognize this is an ongoing injustice. It may well be true that the overall circumstance in relation to 30

The Mabo Decision, 29.

Colonization and Historical Injustice

171

the need for and use of land and resources has changed so that the livelihood of nonindigenous peoples now depend on access to and use of these same resources. It may well be true, as Waldron suggests, that "the costs of respecting primeval entitlements are much greater now than they were in 1800".31 This is an argument for taking these legitimate interests into account, which is what is achieved in effect by the legal rules relating to the vulnerability of native title to extinguishment and to co-existence with other rights and interests in land, but not an argument for the supersession of the property rights of the indigenous peoples. Moreover, the legal basis on which this pragmatic accommodation is achieved is the sovereign power of the colonial judiciary, a sovereignty imposed by means of the doctrine of terra nullius. To the extent that this remains the basis for the legal authority of the colonial state, the injustice of non-recognition is ongoing. Australian indigenous people have made it clear what is required to redress this wrong, namely their recognition as parties to an eventual negotiated settlement, treaty or document of reconciliation. If it is correct to insist upon the complex and interrelated forms of injustice that are bound up in colonization, then it is premature to speak of the supersession of injustice. The distinctions between distributive, reparative and relational justice are a matter of theoretical convenience rather than historical experience. They do not in themselves justify their application to the circumstances of colonization in isolation from one another. An adequate response to the injustice of colonization requires that we take into account all three forms of injustice along with their historical interaction.

31

J. Waldron, "Redressing Historic Injustice", 71.

173

172 Paul Patton Bibliography Bartlett, R.H. (ed.), The Mabo Decision, Butterworths, 1993. Bigelow, J., Pargetter, R. and R. Young, "Land, Weil-Being and Compensation", Australasian Journal of Philosophy, 68 (1990). Dodson, P., "Lingiari - Until the Chains are Broken", 4th Annual Vincent Lingiari Memorial Lecture, Essays on Australian Reconciliation, ed. M. Grattan, Black Inc Books, 2000. Keating, P., The H.V. Evatt Lecture - New Visions For Australia, Evatt Foundation, 1993. Kymlicka, W., Liberalism, Community and Culture, Clarendon Press, 1989. Kymlicka, W., Multicultural Citizenship. A Liberal Theory of Minority Rights, Clarendon Press, 1995. Lyons, D., "The New Indian Land Claims and Original Rights to Land", originally published in Social Theory and Practice, 4 (1977), republished in Reading Nozick. Essays on Anarchy, State and Utopia, ed. J. Paul, Blackwell, 1982. Nietzsche, F, Genealogy of Morals, trans. W. Kaufmann, Vintage Books, 1969. Patton, P., "Reconciliation, droits aborigenes et paradoxe constitutionnel en Australie", Alterite et Droit: Contributions ä Vetude du rapport entre droit et culture, ed. Isabelle Schulte-Tenckhoff, Editions Bruylant, 2002. Tully, J., Strange Multiplicity. Constitutionalism in an Age of Diversity (1994 John Robert Seeley Lectures), Cambridge University Press, 1995. Tully, J., "The Struggles of Indigenous Peoples for and of Freedom", Political Theory and the Rights of Indigenous Peoples, ed. D. Ivison, P. Patton, and W. Sanders, Cambridge University Press, 2000. Waldron, J., "Historic Injustice. Its Remembrance and Supersession", Justice, Ethics and New Zealand Society, ed. G. Oddie and R. Perrett, Oxford University Press, 1992. Waldron, J., "Superseding Historic Injustice", Ethics, 103 (1992). Waldron, J., "Redressing Historic Injustice", this volume.

Surviving Duties and Symbolic Compensation1

Lukas H. Meyer

Contents Introduction 3.

Surviving Duties Carrying Out Acts of Symbolic Compensation in Fulfilling a Surviving Duty Towards the Dead Victims

4.

Concluding Remarks

173 174 178 181

1. Introduction Our obligations to provide measures of compensation for past injustices are often justified by appeal to the interests of contemporaries and future people: We should attempt to counteract the negative consequences of these past wrongs for the well-being of current and future people. However, such a forward-looking interpretation of the relevance of past injustices is incomplete when understood as a statement of how we ought to respond to the fact that past people were severely wronged. The true moral significance of past wrongs does not lie in their impact on currently living and future people's well-being; rather, the significance of past wrongs should be seen in the fact that past people were victims of these injustices. We need to enquire into the question of what we owe to the dead victims of past public evils. The forward-looking interpretation is misleading in suggesting that we owe them nothing - that, in the words of Max Horkheimer, "[p]ast injuries took place in the past and the matter ended there. The slain are truly slain."2 One could defend the claim that we are obliged to the past victims of injustices by attributing rights to them. To attribute rights to dead people may seem unproblematic if we assume that people continue to exist after their physical death, that they exist as people who can be affected by the events of this world or that they might even be able to act in ways that have an impact on what happens in the world. These assumptions about the ontological status of previously living people are at least as controversial as the as-

For helpful discussion, comments and suggestions I should like to thank Brian Barry, Brian Bix, Axel Gosseries, David Heyd, Stanley L. Paulson, Walter Welsch, Andrew Williams, and two anonymous referees of Revue Philosophique de Louvain (which published the article under the title "Obligations Persistantes et R6paration Symbolique" in 101 (2003). "Das vergangene Unrecht ist geschehen und abgeschlossen. Die Erschlagenen sind wirklich erschlagen." In a letter to Walter Benjamin 1937, as quoted in R. Tiedemann, Dialektik im Stillstand, 107.

172 Paul Patton Bibliography Bartlett, R.H. (ed.), The Mabo Decision, Butterworths, 1993. Bigelow, J., Pargetter, R. and R. Young, "Land, Weil-Being and Compensation", Australasian Journal of Philosophy, 68 (1990). Dodson, P., "Lingiari - Until the Chains are Broken", 4th Annual Vincent Lingiari Memorial Lecture, Essays on Australian Reconciliation, ed. M. Grattan, Black Inc Books, 2000. Keating, P., The H.V. Evatt Lecture - New Visions For Australia, Evatt Foundation, 1993. Kymlicka, W., Liberalism, Community and Culture, Clarendon Press, 1989. Kymlicka, W., Multicultural Citizenship. A Liberal Theory of Minority Rights, Clarendon Press, 1995. Lyons, D., "The New Indian Land Claims and Original Rights to Land", originally published in Social Theory and Practice, 4 (1977), republished in Reading Nozick. Essays on Anarchy, State and Utopia, ed. J. Paul, Blackwell, 1982. Nietzsche, F, Genealogy of Morals, trans. W. Kaufmann, Vintage Books, 1969. Patton, P., "Reconciliation, droits aborigenes et paradoxe constitutionnel en Australie", Alterite et Droit: Contributions ä Vetude du rapport entre droit et culture, ed, Isabelle Schulte-Tenckhoff, Editions Bruylant, 2002. Tully, J., Strange Multiplicity. Constitutionalism in an Age of Diversity (1994 John Robert Seeley Lectures), Cambridge University Press, 1995. Tully, J., "The Struggles of Indigenous Peoples for and of Freedom", Political Theory and the Rights of Indigenous Peoples, ed. D. Ivison, P. Patton, and W. Sanders, Cambridge University Press, 2000. Waldron, J., "Historic Injustice. Its Remembrance and Supersession", Justice, Ethics and New Zealand Society, ed. G. Oddie and R. Perrett, Oxford University Press, 1992. Waldron, J., "Superseding Historic Injustice", Ethics, 103 (1992). Waldron, J., "Redressing Historic Injustice", this volume.

173

Surviving Duties and Symbolic Compensation

Lukas H. Meyer

Contents 1.

Introduction

173

2.

Surviving Duties

174

3.

Carrying Out Acts of Symbolic Compensation in Fulfilling a Surviving Duty Towards the Dead Victims

178

4.

Concluding Remarks

181

1. Introduction Our obligations to provide measures of compensation for past injustices are often justified by appeal to the interests of contemporaries and future people: We should attempt to counteract the negative consequences of these past wrongs for the well-being of current and future people. However, such a forward-looking interpretation of the relevance of past injustices is incomplete when understood as a statement of how we ought to respond to the fact that past people were severely wronged. The true moral significance of past wrongs does not lie in their impact on currently living and future people's well-being; rather, the significance of past wrongs should be seen in the fact that past people were victims of these injustices. We need to enquire into the question of what we owe to the dead victims of past public evils. The forward-looking interpretation is misleading in suggesting that we owe them nothing - that, in the words of Max Horkheimer, "[p]ast injuries took place in the past and the matter ended there. The slain are truly slain." One could defend the claim that we are obliged to the past victims of injustices by attributing rights to them. To attribute rights to dead people may seem unproblematic if we assume that people continue to exist after their physical death, that they exist as people who can be affected by the events of this world or that they might even be able to act in ways that have an impact on what happens in the world. These assumptions about the ontological status of previously living people are at least as controversial as the as-

For helpful discussion, comments and suggestions I should like to thank Brian Barry, Brian Bix, Axel Gosseries, David Heyd, Stanley L. Paulson, Walter Welsch, Andrew Williams, and two anonymous referees of Revue Philosophique de Louvain (which published the article under the title "Obligations Persistantes et Reparation Symbolique" in 101 (2003). "Das vergangene Unrecht ist geschehen und abgeschlossen. Die Erschlagenen sind wirklich erschlagen." In a letter to Walter Benjamin 1937, as quoted in R. Tiedemann, Dialektik im Stillstand, 107.

174 Lukas H.Meyer sumption that dead people do not exist as persons.3 A presupposition that is equally compatible with at least some of the controversial and mutually exclusive presuppositions on the ontological status of dead people can be considered a suitable starting point for a philosophical investigation into the question of whether we can stand under duties to previously living people. In the following discussion I am proceeding on the assumption that dead people either do not exist (al) or, if they do, that there is no connection between them and currently living (a2). The second assumption (a2) is meant to imply that for currently living people dead people are neither passive nor active subjects. In other words, I am proceeding on the assumption that the end of the physical existence of a human person, that is, his or her death, is the end of the possibility of this person acting in a way that she has an impact on the world as we know it and of events of this world or currently living persons' actions affecting the dead person (presupposition (A), that is: (al) and (a2)). 2.

Surviving Duties

Is this presupposition compatible with an interpretation of the claim that the true significance of past wrongs lies in the fact that past people were the victims of these injustices? The position of surviving duties is compatible with presupposition (A).4 The duties survive the death of the bearer of the right5. While the bearer of the right does no longer exist, currently living people can stand under the correlative duties. The notion of surviving duties relies on the idea that the reasons for a person's right imply reasons for a duty under which other people stand after the death of the bearer of the right. If it is a moral right, then these reasons will also include general social reasons which are relevant not only for the bearer of the right but also for the bearer of the surviving duty, his contemporaries (and future people). For example, we all have reasons to protect people's trust that promises be kept and that people have the reputation they deserve. The reasons for the surviving duties also include the reasons that are necessary for showing that a particular person had the moral right. For the following discussion I will assume: (A*) Dead people have no interests or rights with respect to the state of affairs in the world as we know it. (B) Currently living people can stand under duties. Claim (B) seems unproblematic. Claim (A*) corresponds to presupposition (A) as introduced above. The position under consideration relies upon the following claims: (C) Some rights are future-oriented in the sense that they impose duties in the future, (c) Such rights can impose surviving duties: The rights imply duties that are (also) binding after the death of the bearer of the right if the appropriate bearer of the duty is identified. I would like to comment on these claims by investigating the reasons for surviving duties with the help of an example of a person who wishes to establish posthumously a 3 4

5

See T. Mulgan, "The Place of the Dead in Liberal Political Philosophy", 52-70, 54f. See C. Wellman, Real Rights, 155-7. For a critique of positions on "posthumous harm" that are compatible with presuppostion (A) but do not support the claim under consideration, see A. Gos~ series, Intergenerational Justice, ch. iv, 'The Dead End of Intergenerational Justice. What Do We Owe Our Ancestors" (on file with author). Or of a person's legitimate claim. In the following I will speak of moral rights rather than moral claims, but nothing hinges on this as long as it is understood that people can stand under a duty to respond to the legitimate claims of others.

Surviving Duties and Symbolic Compensation

175

prize for the sciences. I will call the person Alfred Nobel even though the example and the variations on the example I will use in the following discussion make no claim to resemble the historical person Alfred Nobel to whose bequeathal we owe the Nobel Prize. "A right implies a duty" means that a proposition about the right's validity implies a proposition that some duty exists. Such an implication relies upon the claim that the reasons for the right contain (some of) the reasons for the duty. In the case of rights that are future-oriented in the sense indicated, the reasons for the rights of people while alive are sufficient for holding currently living people under a duty, that is, a surviving duty. With respect to moral rights specifically moral reasons are among these reasons. Such reasons are meant to protect the conditions of a morally speaking valuable social life. Suppose Alfred Nobel kept to himself his wish to establish posthumously a prize for the sciences. Although he accumulated the fortune necessary for the purpose, Nobel neglected to write it in his will. Hiking in isolated mountains together with his friend Barbara, Nobel has an accident and both he and his friend realize that he will die before they can call on somebody for help. He asks his friend to promise him that she will make sure that his fortune will be spent for the establishment of a prize for the sciences and that his wish to this effect will be acknowledged as if it had been written in his will. Why should Barbara keep his promise? The particular strength of the position under consideration is to be seen in its connecting the surviving duty both to the previous right of the deceased person and to those general moral reasons which are relevant for the bearer of the duty and his contemporaries. First, the particular reasons which ground the right of the no longer existing person imply reasons for the validity of the surviving duty. Some of the reasons for a currently living person to stand under the duty towards the deceased person are implied by the reasons for attributing the corresponding right to the deceased person while alive. This is also the sense in which we stand under surviving duties towards the deceased person. For example, the surviving duty to keep a death-bed promise is valid, inter alia, for the reason that the promise was given to the deceased person and that is why the latter, while alive, had a moral right that the promise given to him be kept. If the duty is not understood to be binding due to the fact, inter alia, that the deceased person had the future-oriented right, surviving duties could not be distinguished from interpretations of, for example, death-bed promises according to which the duty to keep the promise is owed to our contemporaries alone (and possibly to people living in the future). The position under consideration differs from some consequentialist interpretations of, for example, death-bed promises by insisting that a surviving duty necessarily be based upon, inter alia, the reasons for the previous future-oriented right and that these reasons contain the specific reasons for the attribution of the previous right to the deceased person.6 So far I have investigated one type of reason for a current person to stand under a duty towards the deceased person. These reasons are implied by the reasons for attributing the corresponding right to the deceased person while alive. However, and second, there are other reasons too. These reasons are general in that they concern the protection or promotion of values important for the quality of social life. With respect to death-bed promises trust and the protection from betrayal are at stake. We ail have reasons to protect the value of people having confidence that promises be kept. In so far as people can and do have an interest in future posthumous states of affairs of the world as we know it, and in so far as pursuing such interests can be of high importance to the well-being of Ernest Partridge discusses the example of Alfred Nobel and defends a rule-utilitarian reading of death-bed promises in his "Posthumous Interests and Posthumous Respect", 243f, 259-61.

176 Lukas H.Meyer people while alive,7 it is important for people that others can bind themselves by promises or contracts to the effect that they will carry out certain actions after the promisee's death, and that when others have done so, that they can be confident that the promise will be kept. For the practice of such promises, trust is of special importance, for the promisee will not be able to determine whether the promise was kept. Thus, the practice of such promises is particularly dependent upon the protection of the value of people having confidence in promises being kept. At the same time, if such promises have often not been kept, this is likely to undermine the confidence in promises being kept generally. The right of the deceased person that the promise, given will be kept is based on, among others, these reasons. Although the right and the person who is the bearer of the right has ceased to exist, the moral reasons are still valid and the duty of the person who gave the promise continues to be binding on the basis of these reasons. As these reasons are general moral reasons they are not only relevant for the individual bearer of the right but also for the surviving bearer of the correlative duty and his contemporaries. The death of the bearer of the right leaves these moral reasons unaffected and the surviving duty is based on these reasons in conjunction with the reasons that are implied by the particular reasons for the attribution of the correlative right to the deceased person while alive. Thus, contemporaries of a person who stands under a surviving duty have reason to impose sanctions on the person should he not keep his promise. One might wonder whether this interpretation of surviving duties as currently living persons' duties towards deceased people is compatible with the presupposition that dead people are bearers of neither interests nor rights and that they cannot be affected by the actions of currently living people. At the very least, the position of surviving duties I am defending presupposes the possibility of the attribution of posthumous properties and, more particularly, of their change. If Barbara were not to keep his promise, Nobel would have the posthumous property of being the person with respect to whom Barbara violated the duty to keep the promise she gave. Such posthumous predication is incompatible with the claim (D) If X has the property P at a particular time t, then X exists at t.8 For our understanding of posthumous duties is to be compatible with the mortality assumption (al), that is, with the assumption that dead people do not exist. The idea of surviving duties presupposes the possibility of posthumous predication of properties to no longer existing persons and, thus, the rejection of (D). More particularly the idea of surviving duties presupposes the possibility that previously living people undergo a change of properties after their death. If a property is attributed to an entity at a particular point in time and it was not true of the entity at an earlier point of time, and it might not be true of the entity at a later point in time, then the entity undergoes change. For example, John forges the will of Nobel with the result that Nobel's fortune is spent contrary to his wishes. A short time later Barbara uncovers the fraud, Nobel's will is restored and his wishes are fulfilled. At first, the deceased Nobel is posthumously the person who is betrayed by John's forgery of his will; later on, it is true that Nobel has the property of being the person whose will is restored and whose wishes are fulfilled. How can Nobel undergo such changes if he is non-existent? Here we can rely on an explanation of posthumous predication as introduced by David-Hillel Ruben. His explanation relies on two distinctions, namely, the distinction 7 8

See also L.H. Meyer, "More than They Have a Right to", 137-56, 141-43. See W.J. Waluchow, "Feinberg's Theory of 'Preposthumous' Harm", 727-34.

Surviving Duties and Symbolic Compensation

111

between real and non-real changes and the distinction between relational and non-relational properties. The first distinction is the distinction between changes as ordinarily understood and changes that are only apparent: The change in a schoolboy if he comes to admire Socrates whom he did not admire before is an example of real change, whereas the change in Socrates when the schoolboy comes to admire him is an example of non-real change.9 The second distinction concerns the distinction between non-relational properties and relational properties. For the non-relational property of an object one can ascribe the property without knowing anything else about other objects.1 This does not hold true for the relational property of an object. The property that an object has as the result of a change of its color might be an example of a non-relational property while the property that Adam and Eve have each time they acquire a new descendant is an example of a relational property." In our example, John forges Nobel's will. This is an event, a change in the state of affairs that is based on non-relational changes in the person John. John undergoes a change and that brings about a non-relational property of John he did not have before. John violates a duty by acting contrary to the reasons that are valid for him. Not fulfilling his duty might cause feelings of guilt on his part - a non-relational change of the person John. What is more, his not fulfilling his duty can have certain consequences and this is the case in our example: When the forgery is uncovered John's contemporaries criticize his breach of duty. Doing so requires of them to act or to refrain from acting in certain ways. All these non-relational changes are real changes in the state of affairs. However, John's violation of his surviving duty also entails relational changes. First, John's relations with Nobel undergo a change. Nobel now is a person with respect to whom John violated a duty under which John would not have stood had Nobel not been the bearer of the correlative right. Second, John's relations with his contemporaries undergo change. Because of his breach of duty John is now considered a person deserving of a sanction. According to the interpretation of surviving duties as sketched above, John has general moral reasons to fulfill his duty, and when he acts contrary to these reasons this is a matter of general moral concern. Thus, I would like to maintain that Nobel can be a relatum of a relational change. Because Nobel is non-existent he cannot undergo non-relational changes. According to Ruben's analysis, for each relational change there is a simultaneous or earlier non-relational change to which the relational change is owed or on which the relational change depends.12 We can distinguish several types of the relationship between relational and non-relational changes.13 If a currently living person acts contrary to the surviving duty under which he stands, then only one of the relata which undergoes a relational change also undergoes a real change, namely, the currently living person - in our example, John. The other relatum, the deceased person, undergoes only a non-real change, namely, a relational change - in our example, Nobel. John, the person who violates the duty undergoes a real change and because of this he also undergoes a change in his relation 9

10 11

12 13

See D.-H. Ruben, "A Puzzle About Posthumous Predicaton", 211-36, 223-31. Sec also P. Geach, Logic Matters, 318-23; P. Geach, God and the Soul, 66f, 70-3, 98f; Michael Dummett discusses "phoney changes" in Frege. Philosophy of Language, ch. 14. Ruben understands this be a sufficient condition. See D.-H. Ruben, "A Puzzle About Posthumous Respect", 217, fn. 7. Ibid., 216f, 223. In the following I will speak of relational and non-relational changes. The former change brings about that an object has a relational property the object did not have before; the latter brings about that an object has a non-relational property the object did not have before. Ibid., 230. Ibid., 224, 231.

178 Lukas H. Meyer Surviving Duties and Symbolic Compensation

to Nobel, the deceased person. Since the latter person is dead, he cannot undergo a real change but only non-real changes. We are now in a position to qualify the claim (D), which we found to be incompatible with the idea of surviving duties. The claim reads: If X has the property P at a particular time t, then X exists at t. This holds true if the property in question is a matter of undergoing real change. The modified claim reads: (D*) If X has the property P at a particular time t and the property is a matter of undergoing real change, then X exists at t.14 Only existing bearers of properties can have properties that indicate that the bearer undergoes real change; non-existing bearers of properties can have properties that indicate a change in their relations to other entities owing to real changes in the latter. It is true that real changes at time t presuppose existence at time t. However, this does not mean that non-existing entities cannot undergo non-real changes. In other words the posthumous attribution of non-real changes is possible. The idea of surviving duties presupposes the possibility of such attribution, namely of attributing the following property to a deceased person: being the person whose previous future-oriented right is now violated by a living person; the latter person breaches a surviving duty and thus undergoes a real change owing to which the relations between the living and the deceased person undergo a change without the deceased person's thereby undergoing a real change. The notion of dead people being wronged or harmed presupposes a real change in the dead person. If dead people cannot undergo real changes they cannot be harmed or wronged. 3.

Carrying Out Acts of Symbolic Compensation in Fulfilling a Surviving Duty Towards the Dead Victims

Does the position of surviving duties help us in responding to the objection against the forward-looking understanding of the significance of historical injustices? I shall propose the idea that since people as members of ongoing societies can be said to have an obligation to compensate surviving and indirect victims of past injustices,15 they may also have an obligation symbolically to compensate dead victims of past injustices, that is people who cannot be affected by our actions. As I have argued above, we can stand under surviving duties towards past people even though neither can we change the value to them of any moment of their lives since they cannot be affected by what people do after their death nor can they be thought to be bearers of interests or rights. Until now I have discussed duties towards dead people with reference to (variations on) the example of Alfred Nobel and his bequeathal. Currently living people can act in ways that will constitute a violation of the surviving duties under which they stand owing to the rights past people had in the past. We stand under particuJar surviving duties towards past people owing to their future-oriented projects, the promises we made to them or the contractual obligations we entered with them. However, not all people have the opportunity or the wish to have a specific impact on posthumous states of affairs. Not all people pursue projects that are future-oriented in the relevant way and not all people oblige others to bring about what for them are posthumous states of affairs. Here I want to suggest that we can stand under surviving duties towards dead people owing to the fact that they were victims of historical in14 15

Ibid., 232, 236. SeeL.H. Meyer, 'Transnational Autonomy", 263-301, sect. 8.

179

justices. For us to show that currently living people can stand under such duties, we will have to assume that people generally have interests with respect to posthumous states of affairs. Indeed, people can be thought to generally have the interest to enjoy a good reputation both during their lifetime and posthumously. When people were violated in their rights and badly so, their posthumous reputation depends upon their being publicly acknowledged as victims of these wrongs and others being identified as the wrongdoers. In acknowledging past people as victims of egregious wrongs we cannot affect their well-being. Also, such acknowledgement cannot be expressed vis-ä-vis the dead victims, but only vis-ä-vis currently living people in light of the wrongs past people suffered. However, if it is true that we stand under surviving duties towards past victims of historical injustice owing to the wrongs they suffered, then our fulfilling the duty by publicly acknowledging the past injustices they suffered will change the relation between us and the dead victims of historical injustice. It will be true of the past victims of these injustices that they have the posthumous property that we fulfilled our surviving duty towards them. To be sure, a change of the relation between a currently living person and a dead person does not bring about or rely upon a real change of the latter person. Rather the relational change is based upon the real change of the person who carries out the act. For us to bring about the public acknowledgment of past people as victims of historical injustice can require different measures under different circumstances. Currently living people can express their acknowledgment of past people as victims of past wrongs in an indirect way, namely, by providing measures of compensation for those who are worse off than they should be owing to the effects of the past injustices suffered by their predecessors. The message of such measures of compensation can contain the acknowledgment that past people were victims of past wrong. Here I would like to suggest that we can understand efforts at finding appropriate forms of commemoration of today's dead victims as efforts at bringing about measures of symbolic compensation and restitution. Establishing a memorial is the typical course of action where the effort is made to realize the symbolic value of compensating those victims who are no longer living. A memorial may be a public speech, a day in the official calendar, a conference, a public space or a monument - for example, a sculpture or an installation. Often these memorials are meant to commemorate crimes that previous members committed in the name of a political society whose currently living members now want to carry out actions of public symbolic compensation or restitution for these crimes towards the victims and their descendants. While there is still no established practice for such efforts at public symbolic compensation, such acts of symbolic compensation have been carried out since the 1970s in Germany and we have been observing the beginnings of an international practice of symbolic compensation.16 How can we understand this practice of symbolic compensation? Here I can only adumbrate the basic idea: the value of real compensation - the rectification or compensation at which we would aim if only it were possible - is imputed, at least in part, to the act of symbolic compensation.17 The imputation of the value of real compensation to the acts of symbolic compensation is partly based upon the expressive value of acts of symbolic compensation. For those who carry out acts of symbolic compensation these acts make it possible to express attitudes towards the past victims - attitudes that are consti16 17

For a comparison of the memorials for the victims of the Shoa in Poland, Germany and Israel, see J.E. Young, 'The Texture of Memory", 1799-811. See R. Nozick's analysis of symbolic value in chs. 1 and 2 of his The Nature of Rationality.

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180 Lukas H.Meyer

tutive of acts of compensation. Acts of symbolic compensation make it possible for us to act in such a way as to express an understanding of ourselves as people who wish to, and would, carry out acts of real compensation if this were only possible. If successful we will have firmly expressed an understanding of ourselves as persons who would provide measures of real compensation to the previously living person or people if this were only possible. Acts of symbolic compensation can be valuable for those who carry out the acts since doing so helps to express attitudes that are important for their self-understanding and, thus, for their identity. They understand themselv.es to be persons committed to support the just claims of those who have been injured and to be persons prepared to contribute to the establishment and maintenance of a just political society. Indeed, acts of symbolic compensation will not help us in fulfilling our duties towards the past victims of wrongs and thus in bringing about a change in our relationship to the dead victims unless we succeed in expressing that we are people who wish to, and would, carry out acts of real compensation if this were only possible. Carrying out acts of symbolic compensation can symbolize that one is a person who shares this identity, can be evidence of one's being such a person and, importantly, can have the consequence of helping one to secure the self-understanding of being such a person. The latter is a real consequence of such acts and can be of great importance to the person carrying out the act.18 However, we will not succeed in bringing about these consequences in carrying out acts of symbolic compensation if we aim to bring about these consequences as such. Carrying out an act of symbolic value as a means of bringing about certain consequences will change the character of the act and, thus, the reasons that speak on behalf of carrying out the act in the first place. It is certainly not the case that we will become a person of a certain identity simply in virtue of our carrying out an act in a specific situation in which a person of this identity would have carried out the act. Carrying out acts of symbolic compensation does not by itself cause one to become a person of this identity. While such consequences for the self-understanding of a person can be an important factor in explaining the person's acts, in choosing what to do the person cannot herself explicitly take into account this type of consequence without thereby diminishing or undermining this very effect of her act. Carrying out acts of symbolic compensation will have consequences for others as well. There will often be surviving and indirect victims of past injustices. Acts of symbolic compensation can have consequences for the surviving victims, for the descendants of victims, and for the group whose previous members were harmed by the injustices: The public acknowledgment of the suffering of past people who were wronged by, say, a genocidal policy cannot be separated from the acknowledgment of those who survived the same policy and suffer as an effect of this policy or from those who suffer as indirect victims of the policy. Those who carry out acts of symbolic compensation will want to provide measures of real compensation to those who currently suffer as a result of the same past wrongs. The reasons for acts of symbolic compensation include the reasons for carrying out measures of real compensation where this is possible. Measures of symbolic compensation belong to the measures likely to have the effect of providing surviving victims with assistance in recovering or regaining the status of membership in their respective societies, such that they are once again able to lead lives under condi18

Elizabeth Anderson provides a theory of expressive reasoning and the relation between expressive reasoning and consequentialist reasoning in Value in Ethics and Economics. I would need to say a good bit more if I were going to bring what I say here to bear on Anderson's theory.

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tions of justice. In so far as people were wronged as members of a group that continues to exist, the public acknowledgment of past victims also provides a measure of acknowledgment for the group whose previous members were wronged.19 Carrying out acts of symbolic compensation may hinder us from realizing other values, may have negative consequences or have consequences less positive than other courses of action - and this can be the case even if carrying out such acts can bring about positive consequences for others. First, carrying out acts of symbolic compensation can compete with acts that make possible the realization of important non-symbolic values. Of course, we may well find that realizing non-symbolic values is more important than realizing symbolic values. The conflict may be due to the fact that carrying out the act of symbolic compensation is costly, materially speaking. Indeed, establishing a monument or a museum as a measure of public commemoration of victims of past injustices can be costly. However, if we find ourselves in a situation in which we have to choose between carrying out such a measure of symbolic compensation and realizing another project that is meant to improve the conditions of the worst off by, say, establishing a medical facility for homeless people, there will often be alternative ways of expressing the value of symbolic compensation, some of which are likely to be less costly. For example, the establishment of a day of commemoration in the official calendar may well make it possible for us to realize the value of symbolic compensation and be less costly than the establishment of a museum or a monument. Depending upon the specific situation in which we find ourselves - depending upon, for example, what measures of public commemoration have been established -, a less costly alternative may be as good in expressing the value of symbolic compensation as the more costly one. In any case, there does not seem to be a general correlation between material expenditure in carrying out such an act and the success in symbolically realizing the value in question. If so, it then seems likely that a conflict of the sort referred to can be resolved or mitigated by choosing one of the less costly alternatives in carrying out acts of symbolic compensation. Other conflicts might be more difficult to resolve. Carrying out acts of symbolic compensation may compete with realizing other symbolic values. Also, carrying out such actions can have consequences that undermine or threaten the self-understanding of groups that members of these groups want to preserve. For example, public acts of this sort may undermine the stability of a particular institution, say, the military, whose compliance with the rules of the new regime, yet to be established, may well be a condition of the success of a "transition to democracy". I doubt that one can say much in general in response to these types of conflicts. How we assess the conflicts depends upon, inter alia, how we assess the self-understandings of the groups and institutions that are said to be threatened. These self-understandings might well not deserve our respect. Our assessment will also depend upon who is negatively affected and in what ways and by whom as an effect of our carrying out actions of symbolic compensation. At the same time, it can be true that our success in realizing the symbolic value in question does not require our carrying out acts of a sort that have threatening negative consequences for others. Indeed, since such consequences are connected with our attempt at symbolically compensating people, this very connection may well undermine our chances of realizing the symbolic value in question, which in part depends upon the 19

The Roma (Gypsies) were victims of a racially motivated genocide committed by the Nazis - a truth that has been long denied with the result that most surviving victims as well as the descendants of those murdered were excluded from compensation and restitution. See L.H. Meyer, 'Transnational Autonomy", 269.

182 Lukas H.Meyer public acknowledgment of the past victims as victims of wrongs. We might often be able to find an alternative course of action that is more promising with respect to both our chance of realizing the symbolic value in question and diminishing the threatening consequences to others. 4.

Concluding Remarks

I presented the interpretation of symbolic compensation as a response to an objection to the forward-looking understanding of the significance öf historical injustices. According to the forward-looking interpretation past injustices matter only and insofar as they have an impact on the well-being of currently living and future people. The forward-looking interpretation of the relevance of historical injustices is incomplete: the significance of past wrongs should also be seen in the fact that past people were victims of these injustices. Symbolic compensation as understood here provides an interpretation of our relating to the fact that past people were victims of injustices without presupposing that past people can be bearers of interests or rights today. Insofar as people while alive generally have an interest and a just claim to enjoy the reputation they deserve and insofar the reasons for their just claim can oblige us even after the bearer of the interest and the just claim has ceased to exist, our carrying out acts of symbolic compensation can be understood as fulfilling a surviving duty towards dead people who were wronged in the past, namely, the duty of restoring the posthumous reputation they deserve. Our measures of symbolic compensation, if successful, will change our relations to past victims of wrongs without changing the value to these past victims of any moment of their lives. Such a change of our relations to the past victims does not presuppose a real change in the past people. Rather, the relational change is based upon real change of the person who carries out the act. Bringing about this relational change can be important for the self-understanding of the people who carry out the acts. Carrying out acts of symbolic compensation can have positive consequences for surviving and indirect victims as well.

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Bibliography Anderson E., Value in Ethics and Economics, Harvard University Press, 1993. Dummett, M., Frege. Philosophy of Language, Duckworth, 1973. Geach, P., God and the Soul, Routledge and Kegan Paul, 1969. Geach, P., Ix>gic Matters, Basil Blackwell, 1981. Gosseries, A., lntergenerational Justice. Probing the Assumptions, Exploring the Implications, 2000 (unpublished Ph.D. thesis, University of Louvain). Meyer, L.H., "More than They Have a Right to. Future People and our Future-Oriented Projects", Contingent Future Persons, ed. N. Fotion and J.C. Heller, Kluwer Academic Publishers, 1997. Meyer, L.H., "Transnational Autonomy. Responding to Historical Injustice in the Case of the Saami and Roma Peoples", International Journal on Minority and Group Rights 8 (2001). Mulgan, T., 'The Place of the Dead in Liberal Political Philosophy", Journal of Political Philosophy 1 (1999). Nozick, R., The Nature of Rationality, Princeton University Press, 1993. Partridge, E., "Posthumous Interests and Posthumous Respect", Ethics 91 (1981). Ruben, D.-H., "A Puzzle About Posthumous Predicaton", Philosophical Review 97 (1988). Tiedemann, R., Dialektik im Stillstand. Versuche zum Spätwerk Walter Benjamins, Suhrkamp, 1983. Waluchow, W.J., "Feinberg's Theory of 'Preposthumous' Harm", Dialogue 25 (1986). Wellman, C , Real Rights, Oxford UP, 1995. Young, J.E., 'The Texture of Memory. Holocaust Memorials and Meaning", Remembering for the Future. Jews and Christians During and After the Holocaust, Pergamon Press, 1988.

185 Ressentiment and Reconciliation. Alternative Responses to Historical Evil

David Heyd

Contents 1.

Looking Backwards and Looking Forwards

185

2.

Jean Amery and the Moral Power of Ressentiment

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3.

Desmond Tutu and the Truth and Reconciliation Commission

192

4.

Hope or Despair. Dealing with Historical Evil

195

1. Looking Backwards and Looking Forwards Little is known of Lot's wife. We do not even know her name. This woman's claim to fame comes from one single, dramatic verse in the Old Testament: "Lot's wife looked back, and she thereupon turned into a pillar of salt".12 Why did she do so? We know that God specifically warned Lot "Flee for your life! Do not look behind you, nor stop anywhere in the Plain".3 Many interpretations were offered in the Jewish exegetical literature for Lot's wife's disregard for the divine command: feminine curiosity, the woman's empathy with her daughters who were left behind, her sinful attachment to her material property, or her pity for the city of Sodom to which she belonged according to tradition. And the reason for her death is usually associated with seeing the face of God, who descended himself from heaven to perform the act of destruction of Sodom and Gomorrah. Since none of these interpretations is directly supported by the biblical text, I can take the liberty and add my own reading: looking backwards is in itself a petrifying act, particularly when the object of gaze is a past trauma from which one tries to escape. Compare Lot to his wife. Lot, I wish to argue, is a survivalist, from beginning to end. When negotiating with his uncle, Abraham, how to divide the land between the two. Lot chooses the plain of the Jordan since it is "well watered" (and despite its people being "very wicked sinners against the Lord".4 Then, when fleeing from Sodom before God pours on it sulphury fire, Lot negotiates with God so as to make his escape the quickest and safest. Unlike his wife, Lot looks only forwards, trying to save his life. Finally, after his wife's death, his two surviving spouse-less daughters make Lot drink wine and lie with him one after the other so as to "maintain life through our father". Again, life

1 2 3 4

Genesis, 19:26. Tanakh, The Holy Scriptures. Ibid., 19:17. Ibid., 13: 10,13.

186 David Heyd

proves to be stronger than morality and Lot's posterity survives: he becomes the father of all Moabites and all Ammonites.5 Lot's wife, in contrast, looks backwards. She is not preoccupied with her future survival but with the processing of the trauma of the previous night's encounter with the wicked Sodomites. She cannot resist the urge to see the punishment of the people of Sodom. Her satisfaction arises out of being witness to the annihilation of the evil culture. She knows the risk of this vindictive or vengeful attitude, since God explicitly warned her husband against looking backwards. But she cannot overcome the impulse to personally witness the justified punishment for the sins committed against her family and God. She cannot forget being the victim of the Sodomites' evil. But looking back.is a deadening act. It surely goes against the evolutionary imperative: if chased by a predator, run away as quickly as possible; any attempt to look back may cause you to waste time, trip and be hunted down. The natural direction of human sight and human movement is forwards. We are not built so as to simultaneously look back and move on. Thus, unlike many interpretations of the story, which highlight the motive of the violation of a taboo and the gaze at the forbidden (as in Pandora or Cupid and Psyche), I am focusing on the backward movement. In a more philosophical vein, moving forwards is flowing on with time, whereas looking back, being stuck with the past, is an attempt to abolish time by freezing it. Lot is constantly concerned with time: he is aware that time is short and that it might be too short for him to be saved. He asks God to let him flee to a closer place so as not to miss the opportunity to find refuge. The whole story is colored by the sense of time: first, Lot's delay in leaving Sodom and then his panicky haste. Lot's wife, in contrast, ignores the dimension of time in making the perspective of the past a substitute for the realistic future-oriented movement. She thus becomes a timeless witness to the evil of Sodom and the divine penalty, a fossilized person in the form of a monument, a pillar of salt.6 This paper is concerned with the bi-directional axis of our temporal consciousness, the backward- and forward-looking. Where does morality lie on this axis? On the one hand, moral judgment is aimed at the future: it is typically prescriptive, action-guiding, ideal-based; it commands and commends what should be done; it posits models for emulation and imitation like the virtuous character. The future-oriented perspective presupposes the human capacity to change, to transform one's own personality and the world. The "ought-implies-can" principle presupposes hope in the possibility of morality to ameliorate the human condition. On the other hand, moral judgment is reactive, it responds to past behavior and events. In this judgmental function, morality serves to decide the value of actions which can no longer be molded or altered. In the particular sphere of justice, one may say that distributive justice is typically, though not exclusively, geared to the future. It decides what the right way of allocating a resource will or would be, i.e. serves as a guiding principle for action. Retributive justice is typically backward-looking, being concerned with the right response to past wrongs (or good deeds), in many cases in terms of assigning punishment (or rewards), or at least making a condemning (or commending) judgment. However, morality is also preoccupied with mental attitudes and personal reactions to past wrongs, and as we shall 5 6

Ibid., 19: 30-38. D. Noy, "The Reversal of Lot's Wife". Noy, an important Jewish folklore scholar, points out the dominance of the motive of urgency in the divine goading of Lot's escape (8), but does not read his wife's reversed look in testimonial terms. It is true that many later Jewish readings of the story ascribe to Lot's wife a negative character, lack of faith, or stinginess, though some hypothesize that she was motivated by a sense of loyalty to her family and city.

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see, these can also concentrate either on the future or on the past: hope, reconciliation, and the willingness to restore the original relationship, or, alternatively, vindictiveness, resentment and the unwillingness to forget and forgive. Here we are getting close to the subject of historical justice. The two faces of morality, the backward- and forward-looking, can be complementary and even mutually reinforcing. For instance, learning from the past in order to avoid future wrongs is one function of moral judgment and punishment. Evaluating past behavior is an effective means of moral education and the strengthening of virtues of character. Closer to our particular concern, admission of past wrongs by the perpetrators and forgiveness by the wronged party are often the only way to true reconciliation in the future. However, there are contexts in which it seems that the relationship between the two perspectives is tense and that the two are incompatible or even mutually exclusive. This is the focus of the following discussion. Justice is a sphere in which judgment about the past and judgment about the future are closely inter-related. Thus, what should be allocated to members of a group is often a function of their past behavior. Judgments of future deserts are based on judgments on past actions. In being corrective or compensatory and re-distributive, justice restores a desirable condition, thus overcoming the past condition, making the past morally irrelevant. However, judgments of justice are also concerned with private and collective attitudes, and here the possibility of correction and restoration becomes itself morally controversial. Forgiveness and resentment are typical examples from the personal sphere. Even if a past wrong is punished and the wronged party compensated, it is not a moral duty for the latter to forgive the wrongdoer, to restore previous relations. Resentment is not only an understandable attitude but may even be expected as the morally correct attitude of the victim of a crime towards its perpetrator. Despite many theoretical problems, the extrapolation of distributive and retributive justice from the individual to the collective level is easier than the parallel move in matters of moral attitudes. The reason is simple: attitudes are in their nature personal; they belong to the psychological domain of the way individuals feel and respond. Distributions of goods or the imposition of penalties are impersonal and can be applied to groups as well as to individuals. Historical justice, by its nature, is concerned with collective rather than individual justice. It is accordingly based on impersonal principles of collective responsibility, reparation, compensation, and re-distribution, rather than on the more personal attitudes of forgiveness or resentment, empathy and vindictiveness. It is easier to ascribe groups with agency (action) than with emotions. There are however cases in which the personal dimension spills over to the impersonal in the way historical justice ought to be carried out. I would like to deal with two alternative kinds of such penetration of the personal into the political or historical: Jean Amery and Desmond Tutu, two radically different moral approaches to the question of the right response to historical evil. There is very little historical or circumstantial connection between the two cases of post-war attitude to Germany and post-apartheid relations between blacks and whites in South Africa. But the juxtaposition of the two allows us to examine the deep ethical views which underlie the two conceptions. I am taking my lead from the two key concepts used by the two thinkers in their attempt to justify their normative conclusions: ressentiment on the one hand, and reconciliation on the other. My general proposition is that the two typically express the two directions of moral judgment: the backward- and forward-looking. The two thinkers have much in common: their writing is equally passionate, their moral integrity equally impeccable (and based on being victims to the history of their

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188 David Heyd

respective societies); neither of them is a philosopher in the professional sense of the word and their writing is, accordingly, not based on an abstract systematic argument, but rather amounts to a more personal and moving plea to their readers, to the world around them. Although the rhetoric of the two is often moralistic in nature, trying to preach from high ground, they address a deep philosophical issue, worthy of theoretical examination. 2. Jean Amery and the Moral Power of Ressentiment Jean Amery, born as Hans Mayer in 1912, grew up in west Austria and then in Vienna. His father was an assimilated Jew and his mother a catholic, and till the Nuremberg laws he was hardly aware of his Jewish identity. After having married a Jewish woman in 1937 and the Anschluss in 1938, Amery fled to Belgium where he was arrested by the Belgian police in 1940 as a foreign German citizen and exiled to southern France, where he was interned in various camps. In 1941 Amery escaped from the camp, arrived illegally back in Belgium, was arrested again, this time as a Jew, tortured by the Gestapo for his involvement in the resistance movement and sent to concentration camps, first Auschwitz and then Bergen Belsen. After the war, Amery stayed in Brussels, adopted, as he himself tells, "a pseudonym with a Romance ring" (the surname being an anagram of his former name). He earned his living from journalistic writing for various papers and only in the 1960's started writing essays about his war experiences. In 1978 Amery committed suicide in Salzburg, an act whose inevitability can be detected in his essays, including the most touching final sentences of the essay on Ressentiments which is our subject.7 Despite his wide-range education and studies in philosophy (particularly of the positivist movement) and his extensive writing on philosophy, Amery was not a professional philosopher and his writing was never academic. His literary style is typically personal, very passionate, often angry, sometimes poignant. He does not try to suggest general abstract arguments or a moral theory, but rather to express what seems to him an authentic voice of an individual victim that should be given a particular moral weight. I would like to argue that the claim for the validity of the particular angle of the victim is itself a philosophical argument. It says that the position from which certain claims about historical justice are made is no less relevant in assessing the force of the claims than their substantive content, or to be more precise, that the substantive content of ethical judgment is partly colored by the experience and attitudes of the person making it. It is not merely the principle of integrity ("are you in a position to tell me how to behave"), which does not directly affect the propositional content of the moral judgment but only the authority of its subject, but a personalistic view of ethical judgment itself: the justified moral response to historical evil should be informed by the mental attitude of its victims.8 Society cannot be the moral judge, since it "thinks only about its continued existence", i.e. looking forwards so that evil does not happen again.9

7 8

9

For a very moving discussion of Amery's suicide on the background of his personal and philosophical reflections, see S. Neiman, "Jean Amery Takes his Life", 775-782. In that respect I wish to go beyond Neiman, who identifies the personal character of Amery's writings in the "representative" features of his life (ibid., 775). Amery, in my understanding, proposes a general thesis about the role of resentment in moral judgment in the context of historical justice. J. Amery, At the Mind's Limits, 70.

189

"Resentments" (originally "Ressentiments") is one of five essays published in 1966 in a collection under the title Jenseits von Schuld und Sühne.l0 Both the title of the essay and that of the collection which is of course intentionally reminiscent of Jenseits von Gut und Böse refer to Nietzsche, whose view of ressentiment is put under sharp critical examination. The background of the essay is the author's sense of grudge experienced while traveling around the beautiful landscape of Germany and witnessing the peaceful and prosperous life of the German people. The aim of the essay as defined by the author is to "justify [this] psychic condition that has been condemned by moralists and psychologists alike".11 Amery wants to deal with the alleged sickness of the grudge and legitimize it. However, he is aware that this expression of personal "retrospective grudge" may make the reader feel uneasy.12 In other words, the very imposition of the essay on the public is a manifestation of "lack of tact".13 Tact, says Amery is an important feature in everyday behavior. I may add that tact's virtue lies in its ability to make inter-personal relations smoother by leaving unsaid what could be offensive or difficult to swallow.14 Amery is aware of the incompatibility of tact and full honesty in some circumstances and pleads with the reader to allow him the latter at the cost of the former. The object of Amery's resentment is Germany's post-war re-awakening, the relative indifference to its past, its present prosperity and above all its return to normality. He cannot forgive the rapid disappearance of remorse, the physical re-building of the country, and more deeply the sense that the past has already been atoned for and hence "overcome". Ame"ry does not seek revenge, the pathetic attempt to punish the perpetrator by the same means originally used against the victim. But he does cherish ressentiment, that particular moral sentiment (rather than vengeful deeds) which insists on remembering and reminding those who tend to forget. The English phrase "harbouring resentment" is appropriate in the context of Amery's discussion, since the verb "to harbour" means primarily giving shelter to someone who is persecuted. And indeed, Amery feels that the sense of ressentiment is being aggressively silenced by the "enlightened" world, inside and outside Germany. It is considered, as he says, both a psychological sickness which should be treated and a moral taint which should be removed. Amery's task is to defend resentment against both accusations. The critique of resentment in terms of its pathology is difficult to ignore since the survivor is aware of the "warping" effect of his personal trauma. But the moral clarity and confidence in which he views the appropriateness of his grudge reassures him of the validity of his emotional response, even against the widespread societal denial of its "health". Even if resentment is a sign of sickness, it is "a form of the human condition that morally as well as historically is of a higher order than that of healthy straightness".15 What primarily disturbs Amery, as can be seen from the opening sentences of his essay, is the visual images of contemporary Germany: the beautiful landscape, the idyllic towns and villages, the clean and modern cities. His visual fantasy is the perpetuation of the image of Germany in ruins, the scenery of 1945, a huge potato-field. Does not that ring a biblical bell? It is the satisfaction of seeing Sodom and Gomorrah in flames and in total destruction, which Lot's wife, like Amery, could not and would not resist. It is

10 11 12 13 14 15

Ame>y, At the Mind's Limits. All references are to this English edition, first published in 1980. Ibid., 65. Ibid., 64. Ibid., 65. See D. Heyd, 'Tact. Sense, Sensitivity, and Virtue", 217-231. Am6ry, At the Mind's Limits, 68.

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the personal testimony, both of the historical evil and the ultimate retribution which motivates the reversal of the look.16 The philosophical tone of the whole essay is explicitly anti-Nietzschean. For Nietzsche, ressentiment is the vengeance of those who have no power to inflict real harm on those they hate. They are forced to rest content with imaginary revenge which they entertain in the dark privacy of their minds. Resentment is the single most important emotion underlying herd-morality, the means by which the weak try to force the powerful to play according to their moral rules of egalitarian justice and the authority of "bad conscience". According to Nietzsche, the general loathsome feature of the sentiment of resentment is its being reactive rather than active. It involves the negation of the other instead of the affirmation of oneself (which is the sign of real virtue). In being merely a response to others, it is the sign of the unauthentic and dishonest character. And of course it could not escape Amery's eyes that the source of the slave revolt in morality is ascribed by Nietzsche to the resentment of the priestly Jews.17 Now, if Nietzsche's genealogy of morals is a striking reversal of the deepest assumptions of Judeo-Christian ethics, a radical transposition of the fundamental concepts of good and evil, Amery boldly turns Nietzsche's theory of resentment on its head! Ressentiment is the heart of his morality, the authentic indication of honesty and moral integrity, the true sign of personal non-conformity and power to escape the herd. But tragically Amery is only partly successful in his anti-Nietzschean gambit. He is forced to admit that both his idea of resentment and Nietzsche's have one feature in common: they are both forms of revolt against life. Life is in Nietzsche's conception a value which must be fostered and expanded; it is the overall expression of the spiritual will to power. But for Amery, life is simply the irresistible force moving us onwards, biologically and politically. While for Nietzsche life is the ultimate ideal, for Amery it is sheer survival. While for the former it is a normative concept, for the latter it is a positively "given" fact. Unlike Nietzsche, for whom life is a self-aware attempt to flourish by transcending the daily business of biological and social survival, Amery views life as routine normality, most typically characterized in terms of non-reflective inertia.18 But upon reflecting on it, Amery becomes aware that Resentment is not only an unnatural but also a logically inconsistent condition. It nails every one of us onto the cross of his ruined past. Absurdly, it demands that the irreversible be turned around, that the event be undone. Resentment blocks the exit to the genuine human dimension, the future. I know that the time-sense of the person trapped in resentment is twisted around, dis-ordered, if you wish, for it desires two impossible things: regression into the past and nullification of what happened.19 Amery speaks again and again about the "natural time-sense" ("natürliches Zeitgefühl"), that consciousness which is future-oriented: "what will be tomorrow is more valuable than what was yesterday".20 But his whole essay is a heroic effort to counter 16 17 18

19 20

'Therefore, I did not strive for an explicative account ... I can do no more than give testimony" (Amery's preface to the 1977 reissue of the above quoted book, viii). F. Nietzsche, Genealogy of Morals, First Essay, sects, 7, 8, 10, Second Essay, sect. 11. Amery mentions also Max Scheler, whose work on ressentiment closely follows Nietzsche's. Scheler speaks of "the ressentiment of the vitally unfit against the fit, of those who are partially dead against the living!". M. Scheler, Ressentiment, 162. Unlike Nietzsche, Scheler refers to the psychological and sociological dimension of resentment rather than to the moral and hence is less of a challenge to Amery's analysis and defense. Amery, At the Mind's Limits, 68. Ibid., 76.

r

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that natural direction of time. Amery uses the language of delay: he is aware that he is "not in tune".21 with the present, that he "clings to the past",22 that he is stubborn.23 He knows that resentment means staying behind. But he will not give in, since this is in his mind the only way to respond in a moral way to historical evil. Adaptation to the requirements of the present and the imperative of the "better future" are seen by Amery as moral treason. Like Nietzsche's overman, the man of resentment must bear extreme loneliness, but for opposite reasons: unlike the Nietzschean free spirit which is alone in its sense of the future, the resentful victim is desperately stuck in the past. As we shall see, healing is a central metaphor used by both Amery and Desmond Tutu. Healing is fundamentally a typical physiological process associated with health and survival. Unhealed wounds tend to inflame and eventually poison the whole body. Healing is the natural course of events which usually takes place without medical intervention. It captures the natural aspect of the future oriented direction of biological and social movement. On the psychological level it is often connected with forgetting; on the moral level it is usually manifested in forgiveness. But again, Amery's self-imposed mission is to intentionally stop the natural process of healing, forgetting and forgiveness. Reconciliation is not only morally dubious in Amery's eyes, but also "hostile to history", that is to say to the honest handling of the past.24 25 We arrive at the deep level of morality. In its essence morality is not only non-natural in the Kantian sense, but also un-natural. Moral judgment is a "revolt against reality", a constant protest against the power of nature to spontaneously heal wounds and overcome evil. The natural time-sense is not only extra-moral but am/moral. In its very normativity, moral judgment cannot be "natural", either in its attempt to shape the future rather than simply accept it as it will be, or in judging the past rather than understanding why it was. And in the double function of morality, which was the starting point of this paper, the response to the past, primarily of crimes and atrocities, has priority over the attempt to shape the future. But Am6ry is not naive. He knows that in the battle between the two senses or directions of time, the future, the natural, the realistic will always have the upper hand. Life is stronger than morality. Evolution made us a species that can survive only on the condition of a far-reaching degree of forgetfulness, adaptability and reconciliation. But then, although on the social level, the sober-minded Ame>y knows all too well that there is no real hope for inspiring (or infecting?) a whole society with the resentful perspective of the victim (what he calls "an extravagant moral daydream"27) he insists that the genuine moral stance is individual and personal. Politically he is on the losing side. Nietzsche's fear of the victory of the herd-morality of resentment is unfounded. Life overpowers moral conscience. All that is left for historical justice is the authentic 21 22 23 24 25

26 27

Ibid., 65. Ibid., 67. Ibid. Ibid.,71f. Cf. Jean Amdry's response to Simon Wiesenthal's query about the issue of forgiveness to a dying SS officer in S. Wiesenthal, The Sunflower, 105-109. Amdry stresses that to the extent that forgiveness is a psychological matter, he is indifferent whether it is granted; if it is a theological issue, he, as an atheist, does not understand its import; and if it is a political question, then it should by no means be granted. In the same volume (181-183), Primo Levi strongly rejects the option of forgiveness in this context since its request by the Nazi officer was a childish and impudent act which would have meant much to him but nothing to Wiesenthal, creating an unjust balance between perpetrator and victim. Amöry, At the Mind's Limits, 72. Ibid., 79.

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expression of the resentful individual. But the victim is eventually expected to "finish" with that ressentiment, "finish" - as Amery alarmingly adds - in the sense of killing. In a most shocking, though delayed correspondence of theory and practice, Jean Amery committed suicide twelve years after having concluded his essay on resentment with a plea for patience by the public disturbed by the grudge of the victim.28 As I mentioned, the title of Amery's collection of essays is "Beyond Guilt and Atonement". Playing on the Nietzschean idea of transcending common morality in favor of a higher one, Amery seems to be trying to similarly transcend legal justice and theologically based morality. Guilt is the identifiable aspect of the crime to which a punishment can be attached. Retributive justice balances the guilt by a penalty. Analogously, sin can be atoned for and consequently wiped out. Legal justice and religious atonement are both means of achieving closure, of settling the balance of the horrifying atrocities of the past. But morality does not seek a "settlement". On the contrary, its aim is to leave the account open. But this means a persistent look backwards, and as we learnt from the story of Lot's wife, this is a deadening perspective, petrifying, or even literally killing. Historical justice can be achieved only if history is "moralized", that is to say, if instead of reconciling ourselves with the past and overcoming it, both perpetrators and victims place it in the center of their consciousness: this implies a degree of resentment (not revenge) on the part of the victim and a sense of shame (not guilt) by the people of the perpetrators. German society, according to Amery, must internalize the Third Reich as part of its past on an equal footing as the Enlightenment and Göthe. The objects of pride and shame are symmetrically relevant in society's self-image.29 Furthermore, although there is no justification for collective guilt, there is a place for collective shame, since guilt is a function of what we do while shame arises out of what we are; and what we are, our identity, is partly a collective matter. 3. Desmond Tutu and the Truth and Reconciliation Commission Desmond Tutu's conception of historical justice is a kind of mirror image of Amery's. Tutu's moral fervor equals that of Amery, as does his commitment to moral honesty. Both are devoted to the pursuit of historical justice following a trauma caused by evil of an unimagined scale. Both are aware of the inherent tension between moral judgment and practical needs. However the historical circumstances in which they live and their personal position in society are very different. Although both are victims of past evil which they want to address and redress, Tutu is a public figure, whose approach is deeply informed by political considerations, while Amery is a private bystander and observer. Furthermore, while German Jews were integrated in German society before the Nazi period, black South Africans were never seen by the whites as equal. But paradoxically, it is Tutu who is speaking of reconciliation, as if there was a pre-apartheid inter-racial relationship which should be restored, while Amery despairs of any chance 28

29

A fine example of Amery's prophetic insight is how quickly the uniqueness of the Nazi evil will be lost by the end of the 20th century when "everything will be submerged in a general 'Century of Barbarism'" (ibid., 80). This important point was raised by Richard Rorty too. He asks why the Left in America cannot be proud of some of the good achieved by American society and is exclusively obsessed by the shameful wrongs for which it is responsible. It is the mirror image of the complacent post-war German attitude which took pride in Germany's glorious past, skipping the shameful twelve years of the Nazi period.

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of genuine restoration of the pre-war relations. On the other hand, for South Africa there is no practical alternative to co-existence, and hence reconciliation seems to be imperative, whereas dissociation of Jews from German culture and society was an option, both psychological and political. The Truth and Reconciliation Commission (TRC) was the ingenious institutional tool for promoting a feasible plan for redressing past wrongs without losing the chance of future co-existence. This was by no means an original institution. At least twenty truth commissions were established and proceeded with varying success throughout the world since 1970. The South African institution was established by a 1995 law, after careful reflection and a wide public debate. Archbishop Tutu was nominated as chairman and after three years of intensive (and painful) work the commission submitted its long report to President Mandela. We are not concerned here with the working of the TRC or its success (which is controversial),30 but with the philosophical conception underlying it, primarily as it is expressed by Desmond Tutu himself. The name of the institution is of course revealing. Truth and reconciliation are assumed to be high values. But are they? Furthermore, they are supposed to be related, maybe in a quasi-causal way. The logo of the Commission refers to truth as the road to reconciliation. But in what way is it so? Take truth first. One can think of four sources of value of "truth". First, truth as such is good. Secondly, the knowledge of truth is valuable. Thirdly, the memory of truth is what is cherished. And fourthly, the process of exposing the truth is what really counts. Truth as such is a particularly abstract notion and cannot be the aim of a truth commission. And anyway there was no chance for consent on the narrative of the apartheid period. Knowing the truth gets closer to the idea of such a commission, although it is still a relatively abstract condition. It is definitely morally wrong to suppress information about atrocities, or to deny what happened, or to hide the fact that someone was responsible for these atrocities. We are not willing to accept that people simply disappeared or that that evil "just happened". But knowledge in itself does not guarantee a moral transformation. Remembering the truth is an essential constituent of historical justice, since it involves the persistence of knowledge and its bequest to future generations. Forgetting is often considered a major moral sin against the victims of historical crimes. It expresses indifference not only to their plight but also to the basic components of the collective identity of society. ' Tutu was accordingly against a general amnesty, the granting of which would have meant legitimizing a general amnesia. Finally, exposing or the process of revealing truth is of independent moral value, which I call "confessional". It involves an interpersonal, or collective dynamic, in which people undergo a psychological transformation, leading to a new phase in their moral consciousness. It seems that it is here that Tutu's main commitment to truth as a moral goal lies. His writing is replete with terms like "healing", "catharsis", "coming to terms with" and, above all, "reconciliation". Truth as such, its knowledge or its memory does not mean being reconciled with it. But the process of uncovering it may bring forth the ability to cope with it, change one's attitude to others, even forgive. For AmeYy, truth and the constant reminder of truth to those who are liable to suppress and forget it, is the safeguard for the persistence of ressentiment, of a hostile attitude and the attempt to foster shame in the camp of the evildoers. For Tutu, truth is the exact opposite: the instrument of moral reform and mutual reconciliation of the victim with the perpetrator. But this 30 31

For one of the many books on the history, procedures, testimonies and outcomes of the TRC, see K. Christie, The South African Truth Commission. See A. Margalit, The Ethics of Memory.

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can happen only if truth is achieved through the right process, which is the public, personal confession, with all its pain and shame. For Tutu truth is of a therapeutic value, and its exposure is an interim procedure which should come to an end. In that respect, unlike Ambry's resentment, which in its nature should persist as long as possible, down into the long future of German society, the idea of the TRC was typically transitional and was institutionally devised with a strict time limit. It was designed to lead to a new phase in South African history. Yet, Tutu is aware that reconciliation is not an easy goal, not only politically but also morally: Forgiveness and reconciliation has a price tag attached to it. We've got to where we are, a democratic dispensation, by negotiation. And the heart of that negotiation was compromise. And people have got to acknowledge that yes, we were on the brink of civil war in 1994 ... that's part of the cost. And you say to those who say we want justice, that if there were no amnesty, then we would have had justice and ashes.32 Like Amery, Tutu admits that reconciliation means renouncing a legitimate moral sentiment. But this is a necessary compromise which in itself is of a moral value since it saves society from total destruction. We are back at the time axis, now looking forwards rather than backwards, justifying the need for rapprochement in terms of the vital interests of the future. Even if on the personal level, resentment and vengeance are understandable, on the social and political level they are suicidal and in the name of collective survival should be overcome. This does not mean that Tutu wishes to completely relinquish the individual's perspective. For example, he acknowledges the freedom of the victim to refuse to forgive the wrongdoer, and he does not require remorse of the wrongdoer as a condition for amnesty. But he supports the principle that once a confession of truth is fully and honestly made, immunity from legal prosecution should be secured. Forgiveness, which is a personal matter, is left to the individual's discretion. But legal pardon is automatically given on the basis of the interests of society and the moral effect of the public confession on both the confessor and the wide audience.33 Tutu's conception of justice in the historical sense is accordingly not retributive but rather restorative. It does not seek punishment or revenge, even though these are in themselves morally legitimate, but the creation of a new kind of relationship. But this future-oriented approach is not blind to the past. It requires a transitional phase in which the process of disclosure and direct confrontation between the evildoer and the victim serves as a necessary means. Unlike Amery, Tutu wants closure, a "settlement", since this is the only way to open a new page for a society with such a troubled moral history. Reconciliation is an alternative to vengeance since it is based on acknowledgment of the crime. By insisting on the full disclosure of the evil deeds, these deeds become "accounted for", which in turn means accountability of the perpetrators. For Tutu, some form of monetary compensation is important in the process of reconciliation since it is a symbolical manifestation of the moral acknowledgment involved in the confessional act

32 33

Quoted in K. Christie, The South African Truth Commission, 65. A distorted version of the future-oriented perspective of justice in post-apartheid South Africa is expressed by the main female protagonist of J. M. Coetzee's recent novel Disgrace. The young white woman, who was raped by a black youth, prefers not to take any punitive measure against him. This is explained by her black neighbor involved in the crime: the lady is looking forwards, not backwards. Her father, in contrast, cannot stand her conciliatory approach and develops a typically resentful attitude to the violators of his daughter.

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of telling the truth.34 For AmeYy, compensation is incompatible with resentment and hence his suspicion that the grand restitution scheme of post-war Germany might serve to relieve German society of the need to face its past. Although Tutu does not expect every individual victim to grant forgiveness, he entitles his book "No Future without Forgiveness".35 The alternatives to the TRC were either forgetfulness (like the Zimbabwean case or the aim of the South African National Party), or Nuremberg-style trials and the perpetuation of resentment. Tutu boldly attempted a third way, in which a political goal is achieved through a morally powerful procedure, a future-oriented aim of collective survival through a personal confrontation with the past. But this ingenious device of reconciliation can be achieved only on the basis of deep theological or religious assumptions, primarily relating to a fundamental moral credit (given even to the agents of the most atrocious deeds) and to the model of God's forgiveness as boundless.36 These are exactly the assumptions which are shared by neither Amery nor Primo Levi. Wynand Malan, a member of the Amnesty Committee in South Africa, says, If we want to judge the past on the basis of superimposing present choices or moral frames ... we have no chance of dealing with it - hence I have totally discarded a moral frame as a basis for reconciliation.37

In the absence of a theologically based ethics, the sole basis for the morality of dealing with evil is, as Amery insists, "humanistic", and this either implies the necessity of resentment or the pragmatic acceptance of sheer compromise. Tutu, through his religious faith, is trying to "humanize" the perpetrator, his assumption being that every person is created in God's image.38 It is as if he has to "import" a metaphysical principle to save the humanity of the cruel murderer. But forgiveness requires faith also in another sense: as Tutu is fully aware, there is a measure of risk in any act of asking for or granting forgiveness; it can be met with a negative response, and one must give credit that the forgiven party will indeed change in the future and that the confession of evil was sincere. The power of forgiveness is that though it assumes good faith it also tends to create good faith even in those who lack it. This is the deep dynamic behind the ideal of reconciliation.39 Truth and reconciliation are the two poles of the Janus-face of morality: the shaping of the future in the light of the judgment of the past. Truth is not simply the adequate picture of what really happened but an experience or sensibility, a moral perception.40 In that respect, Tutu cannot be described as a biblical Lot. He is not a mere survivalist. But he aspires to be freed from the risk of being enslaved to the past by feelings of bitterness 34 35 36

37 38 39

40

Apology not followed by restitution means nothing, says Tutu. See D. Shriver, An Ethic for Enemies, 224. D. Tutu, No Future without Forgiveness. See T. Govier, "Forgiveness and the Unforgivable", 64. Govier discusses both the German and the South African cases in examining the limits of forgiveness and emphasizes that for Tutu even in the most monstrous criminal there is an element of decency. Quoted in K. Christie, The South African Truth Commission, 139. D. Tutu, No Future without Forgiveness, ch. 5. In my work on supererogation I argued that forgiveness, being beyond duty, is typically shown to people with whom we have personal relations; but its moral power lies also in its potential to create such personal relationship when shown to people with whom the forgiver had no such prior relationship. D. Heyd, Supererogation, 162. P. Duvenage, "The Politics of Memory and Forgetting after Auschwitz and Apartheid", 22. 'The memory of who we are, what we have done to others, is thus a precondition of the exercise of moral judgement".

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and resentment, since those are explicitly associated with un-health and "death-dealing spirits".41 This is why forgiveness plays such a major role in his theology of hope. But forgiveness consists of a very tense, even impossible relation between memory of the past and a change of heart for the future. In one of the most poignant scenes in Frances Read and Deborah Hoffman's documentary film A Long Night's Journey into Day, a black mother faces the murderer of her son and says in a most resentful and angry tone: "I forgive you", adding "I will never forget your face". The possibility of genuine reconciliation remains empirically to be proven and conceptually controversial. 4.

Hope or Despair. Dealing with Historical Evil

The first priority of morality is fighting evil. But historical evil cannot be undone. It can be only addressed, suppressed or redressed. We have examined in some detail two points of view which equally resist forgetfulness or indifference. Both Amery and Tutu realize the limits of retributive justice and the pressing force of social stability and peace, and recognize the irresistible power of life, survival and inertia. But while for Tutu these have a moral meaning, for Amery they belong to the political. For unlike Tutu, Amery does not believe that the moral, which in his case is purely personal, can be transformed into the political order. Reconciliation for Amery means at most an inevitable pragmatic settlement (for instance, he himself complains that the new capitalist "system" in Germany is making use of his own public appearances in the media). Both take as their starting point the personal response of the individual - resentment on the one hand, forgiveness on the other - but only Tutu strives to use it as a lever for a new social order. It is a difference between the morality of hope and that of despair and resignation, opposite strategies in processing a deep trauma. Nowhere is this contrast more concisely expressed than in the different understanding of healing. For healing is a basic natural process, an epitome of what happens in a standard way, "by itself, if not interfered with or given the right conditions. Tutu repeatedly refers to healing as the primary goal of the TRC, since it is exactly the transitional phase in a wounded organ before being restored to its former, healthy condition. The ultimate goal is the disappearance of the wound, although this goal can be achieved only if the process (of healing) takes place in the right way. For Amery this is exactly what is repugnant in healing: the wound should remain open, indefinitely. All restorative ideals are illusory or suppressive of truth. There is a close association between healing and kitsch, or sentimentality. Harboring resentment is valuable because it counters the natural process. And while for Tutu forgiveness is supererogatory (that is to say of a particular moral value due to its free discretionary aspects), for Amery it is wrong. We saw Amery's contempt for forgiveness in his response to Wiesenthal's moral query in The Sunflower. A later edition of the book contains Tutu's reply too. He takes issue with the Jewish view that no forgiveness can be granted for the horrors of the Holocaust and calls for Jewish thinkers to reopen the case and come to a different conclusion "for the sake of the world".42 Both thinkers are "humanists". But while for Amery humanism means ethics without God, Tutu's humanism is informed by ubuntu, the traditional sense of humanness and compassion, and is theologically based on the divine image engraved in every human being. For Amery it is human to feel re-sentiment as an ongoing and self-perpetuating 41 42

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D. Tutu, No Future without Forgiveness, 122. Ibid., 225.

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response to evil which cannot be undone. For Tutu the touching characteristic of human beings is their capacity to re-concile, that is etymologically speaking to re-combine or re-gain. We may conclude with Hannah Arendt who sharply perceives the bi-directional attitude on the time axis of human action.43 Past deeds are irreversible, cannot be undone. Future deeds are infinitely unpredictable and create a chaotic uncertainty. Human beings deal with the two limitations by their power to forgive (past actions) on the one hand and make promises (future actions) on the other. These are means for overcoming the fixation with the past and for managing the unexpected future, or in our terms, for settling past wrongs and surviving in the future. Arendt would not accept Amery's ressentiment, although she admits that extreme crimes are not forgivable. But neither does she agree with the theologically based analysis of forgiveness as suggested by Tutu, since she interprets the New Testament view of forgiveness in human terms. But how should we relate to exactly those cases of extreme evil is a question which is left open. We cannot escape the conclusion that resentment and reconciliation are two deep alternative responses to historical evil which cannot be fully reconciled.

Bibliography Amery, J., At the Mind's Limits, trs. Sidney Rosenfeld and Stella P. Rosenfeld, Granta Books, 1999 (English edition, first published in 1980). Arendt, H., The Human Condition, The University of Chicago Press, 1958. Christie, K., The South African Truth Commission, Macmillan, 2000. Duvenage, P., "The Politics of Memory and Forgetting after Auschwitz and Apartheid", Philosophy and Social Criticism 25 (1999). Govier, T., "Forgiveness and the Unforgivable", American Philosophical Quarterly 36 (1999). Heyd, D., Supererogation. Its Status in Ethical Theory, Cambridge University Press, 1982. Heyd, D., "Tact. Sense, Sensitivity, and Virtue", Inquiry 38 (1995). Margalit, A., The Ethics of Memory, Harvard University Press, 2002. Neiman, S., "Jean Amery Takes his Life", Yale Companion to Jewish Writing and Thought in German Culture 1096-1996, ed. S.L. Gilman and J. Zipes, Yale University Press, 1997. Nietzsche, F., Genealogy of Morals, trans. W. Kaufmann, Vintage Books, 1969. Noy, D., 'The Reversal of Lot's Wife", Festschrift for Zalman Shazar, ed B.Z. Lurie, Kiryat Sefer, 1973 (in Hebrew). Scheler, M., Ressentiment, trans. W.W. Holdheim, The Free Press, 1961. Shriver, D., An Ethic for Enemies. Forgiveness in Politics, Oxford University Press, 1995. Tanakh, The Holy Scriptures, The Jewish Publication Society, 1985. Tutu, D., No Future without Forgiveness, Rider, 1999. Wiesenthal, S., The Sunflower, Schocken Books, 1997.

43

H. Arendt, The Human Condition, sect. 33 O'lrreversibility and the Power to Forgive").

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The Relevance of Biblical Thought for Understanding Guilt and Shame

George P. Fletcher

Contents 1.

Guilt in Genesis

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2.

Shame in Genesis

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Contemporary debates about responsibility for the crimes of the past raise questions both of collective guilt and collective shame for the deeds of our forebears. While these subjects pose important philosophical challenges in themselves, I am intrigued by the relevance of the biblical text to our current sensibilities about collective guilt and shame. These texts bear on the current discussion because they - along with other ancient sources - have entered into the intuitive reactions that shape the way we think about doing justice over time. In this essay I shall focus on guilt and shame in the Hebrew Bible with some reference to the way these ideas have been received into Christian thought. The purpose of the inquiry is to suggest that biblical ideas continue to resonate in our thinking about how nations should come to grips with crimes in the past. 1.

Guilt in Genesis

When we go back to the Hebrew Bible, we have some difficulty pinpointing the exact emergence of the concept of guilt in the narrative of creation and the patriarchs.1 A good deal depends on the translation of the word "guilt" into Hebrew. Modem Hebrew relies upon the word "ashma" to capture the idea of guilt in the criminal law. Variations on the root aleph-shin-mem for ashma figure prominently in the biblical text but there is no reason to assume that this is the only way to render the concept of "guilt" in ancient Hebrew. For example there is considerable dispute about the proper reading the colloquy between Cain and God after Cain slays his brother Abel and God sentences him to become a solitary wanderer of the earth - a fitting punishment for someone who has slain his brother. Cain intervenes, "My avon is more than I can bear." The problem is finding the right translation of avon into English or any other modern Western language. The King James translation of the Bible popularized Cain's lament as "My punishment is greater than I can bear." (Gen. 4:13) This way of rendering the text demeans Cam into someone who has committed fratricide and is unable to own up to the deed and accept 1

This article represents a revision of my thoughts as presented in the Storrs Lectures: "The Problem of Collective Guilt. Liberals and Romantics at War", Yale Law Journal 111 (2002).

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punishment for what he has done. Interpreting Cain's avon as punishment fits well with the first murderer's initial response to God: "Am I my brother's keeper?" But there are many clues that this translation is incorrect. For one thing, in the modern Hebrew the word avon refers to a misdemeanor, a kind of crime, and not to the punishment for the crime. The Jewish liturgy also conceives of avon as kind of sin or offense. It would be proper, therefore, to render Cain's statement as: "My sin (crime, iniquity) is greater than I can bear." This would be, in effect, be a confession of guilt. For reasons I do not comprehend, translators gravitate today toward reading avon as punishment rather than as crime or sin. In my view, Luther got it right when he translated the verse as: "Meine Sünde ist größer, denn daß sie mir vergeben werden möge." In the current on-line version of the translation, however, the editor has rewritten Luther's original as: "Meine Strafe ist zu schwer, als daß ich sie tragen könnte." The same shift has occurred in the scholarship of James Kugel, who concedes that early readers of the text read avon as sin or iniquity but that this reading was, in his view, surely incorrect. Would that he had given an argument for this tendentious conclusion.2 The most common translation of "guilt" into Hebrew is asham or ashma based on the root aleph-shin-mem. This word makes its first appearance in the biblical narrative in the last of the three tellings of the story of a patriarch entering a foreign land and fearing that the "barbarians" will kill him in order to gain the sexual favors of his wife. The pattern is always the same: first Abraham (twice) and then Isaac relive the same deception. Each tells the foreign potentate (first Pharaoh and then a king named Avimelech in the land of Gerar) that his wife is, in fact, his sister. In all three cases something happens to inform the potentate that either he or a man of his court is about to commit adultery. In the first version, after Abraham passes Sarah off as his sister, Pharaoh takes her into court. Plagues then descend upon "Pharaoh and his household" as a sign that a sexual sin has occurred or is about to occur. Pharaoh quickly realizes that something is wrong in the natural order and confronts Abraham with his lie. In the later retelling of the same basic story, the truth of sexual sin is realized not by a plague but by God coming to the king in a dream and saying "You are to die because of the woman that you have taken, for she is a married woman." In the third telling, when Isaac passes off Rebecca as his sister, a king also named Avimelech discovers the lie when he sees them engaging in affectionate behavior that would be incest if they were actually brother and sister. Assuming that they are not an incestuous couple, Avimelech confronts Isaac, establishes the lie, and then says: "What have you done to us? One of the people might have lain with your wife, and you would have brought guilt upon us." (Gen. 26:10). In Luther's translation: "du hättest so eine Schuld auf uns gebracht." The one who is responsible for the situation, the one who lied, is paradoxically not affected by the guilt. Guilt is objective and it affects the entire land where the sin occurs. The analogy with Oedipus is compelling. As Oedipus brought a plague on Thebes by killing his father and marrying his mother, Isaac brings guilt on the land of Avimelech. The existence of the stain invites reflection about its cause, and the investigation into the cause provides the structure of Sophocles' play Oedipus Rex. The striking difference between the Greek and the Hebrew story, however, lies in the personal reaction to the incident that brings the stain or threatens to bring the stain on the land. Oedipus puts out his eyes with his wife Jocasta's brooch and goes into voluntary exile. The biblical text tells us nothing

The Relevance of Biblical Thought for Understanding Guilt and Shame

about Isaac's feelings for having brought about this situation of potential stain and pollution. In the second telling of this story, when it is Abraham rather Isaac who engages in the lie, Avimelech says something similar to Abraham after the deception is revealed to the potentate in a dream: "What hast thou done unto us? and what have I offended thee, that thou hast brought on me and on my kingdom a great sin?" (Gen. 20:9) In Luther's version: "daß du eine so große Sünde wolltest auf mich und mein Reich bringen?" Here the key word is not asham but chataah, which is conventionally translated as sin (Sünde). As between these two references to a stain brought upon the land, there is a good reason for taking asham (Gen. 26:10) and not chataah (Gen. 20:9) as the first reference to "guilt" we find the same pattern in the use of the word asham as we have already noted in the use of avon, namely a strong conceptual link between the ideas of guilt (or sin or iniquity) and of punishment. Like avon, asham refers ambiguously both to the deed and the effort to cleanse the world of its stain. The term ashem comes into prominence in chapter five of Leviticus, where we encounter the various forms of sacrifice necessary to cleanse the world of various kinds of pollution. Asham is the word used in this context to describe a whole range of sacrifices. The prescription is to bring a "guilt sacrifice" to atone for specific sins, burnt offerings for others. The conceptual merging of the deed and the remedy validates the general biblical pattern. The easy interchange of the negative and the positive, the contamination and the decontamination, reveals a way of thinking totally different from the modem conception of guilt. Walter Burkert, a distinguished historian of Greek religion and culture, has a different take on this easy association of guilt and punishment in the ancient world. He suggests that those who committed the offense requiring a sacrificial response actually tendered personal feelings of guilt and projected these subjective feelings onto the sacrifice.3 Perhaps there are periods of Greek history when this was true but I find the approach implausible as an account of the biblical concept of guilt. It is puzzling that personal feelings of guilt seem to be absent in the biblical narrative of sin. Of course, Adam and Eve might feel shame after they eat of the forbidden fruit and discover their nakedness but there is no sign that they feel guilt for having disobeyed God. When Joseph's brothers learn that the sibling they tried to kill is alive, well, and prospering, they cry in joy but not in guilt. We will turn later to the problem of shame but we might still be puzzled by the apparent gap between the biblical and modem approaches to guilt. Our understanding of guilt lies at the intersection of the biblical idea of pollution and the modem idea that guilt resides first and foremost in feeling guilty. The evolution toward our current approach to guilt has required the transition from the objective phenomenon of pollution to the subjective condition of feeling unworthy and yearning for punishment. Though we retain the ancient idea of objective guilt, the focus has shifted to the modem idea of feeling guilty. Along with this change there has been a shift from guilt as a fixed quantity, the same for everyone, to the concept of guilt as a matter of degree. The striking assumption of modernity is that some people are more guilty than others. Their relative degrees of guilt depend on two factors: first, how much they contribute or how close they come to causing physical 3

See J. Kugel, The Bible as It Was, 94-96.

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W. Burkert, "Greek Tragedy and Sacrificial Ritual", 87, 112 (noting that "the community is knit together in the common experience of shock and guilt" at the time of sacrifices).

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harm, and second, their internal knowledge of the action and its risks. The principal who controls the actions leading to harm is more guilty than the accessory who merely aids in execution of the plan. Those who take risks intentionally are worse than those who do so inadvertently. These assumptions about relative guilt are built into the modem way of thinking about crime and punishment. These shifts from the external to the internal, and from the categorical to the scalar, account for another conceptual transformation. The notion of guilt in the biblical culture was connected with a particular kind of response - the sacrifice of animals in a religious ritual. In the modern, secular understanding of guilt, the linkage is not with sacrifice in the Temple but with punishment prescribed in court. As Herbert Morris writes, "To be guilty is, among other things, both to owe something to another and to be the justified object of their hostility." The connection between guilt and a personal debt comes through more clearly in German than it does in English. The words Schuld (guilt) and Verschulden (debt) are etymologically connected, but this hint of a conceptual connection is not so apparent in Romance or Slavic languages or in English. This transformation of guilt is much too deep and too radical to be attributed to any single historical process. It is difficult even to date the transformation. It would seem to be older than the rebellion of the German Romantics against the French Enlightenment in the end of the eighteenth century, but it is not clear when the shift occurred. Did it take place with the preaching of the Hebrew prophets, with the emergence of Christianity and its conception of individual salvation, or with the sixteenth-century Protestant doctrine of salvation by faith alone? These religious movements account neither for the secularization of guilt nor for the grading of guilt as a matter of degree. Nor can the history of religion account for the modern phenomenon of free-floating guilt and its detachment from all external anchors. The modern condition is best expressed in the plight of Kafka's Joseph K. He knows that he is charged with something. He is regarded as guilty for something, but he does not know what. He must wander the maze of the law in search of the trial that will resolve his anxiety about his internal state of unworthiness. It is as though he is Oedipus, but with the plagues internalized and without a truth that can be discovered. Among all these transformations is another that is critical for purposes of this investigation, namely a shift in the presumed point of departure from collective to individual guilt. For the ancients, particularly the ancient Hebrews, collective guilt was the normal instance of the concept. Though we must accept the conventional assumption that individual guiJt is well-understood and collective guilt problematic, it is hard for me to believe that we can entirely escape the influence of the past. The biblical understanding, as reflected in the story of Isaac and Avimelech, must remain with us in some fashion. We use the concept of guilt today in the shadow of the biblical language. The ancient understanding seeps though our intuitions and opens us to the plausibility of attaching guilt to collective entities like the nation. As Oedipus and Avimelech are paradigmatic figures for the ancients in their approach toward guilt, Raskolnikov is the exemplar of the modern man who knows precisely what he has done but fails initially to grasp the moral qualities of his actions. He undergoes a process of discovery, as did Oedipus and Avimelech. Raskolnikov captures the existential situation of all the ideological killers who know precisely what they have done but who have yet to discover their guilt for having put their hand to evil. The process of discovery carries with it the sudden explosion of truth. Repression caves in, and truth overwhelms. The reaction can often be violent, as in the case of Oedipus. Or it can be therapeutic and lead to a reconciliation with the victims or with one's self.

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The important implication for our purposes is that this process of exploration and discovery applies to groups as well as to individuals. An entire culture can support slavery, but the mass of people will be able to ignore the humanity of their fellow human beings only for so long. Sooner or later the truth will break through, and the abolitionist spirit will be born. These political transformations cannot but invite a sense of guilt for the mistakes of the past. For Germans living after the war, the critical experience was apparently a television series - named Holocaust - that told the story of one Jewish family exposed to systematic persecution and mass murder. Suddenly, thousands of people understood for the first time the depth of the crime that their fellow countrymen had committed. 2.

Shame in Genesis

In the modern approach to guilt, we are more likely to begin with our feelings than follow the pattern of the ancients and infer guilt for a plague or from a vision of God in a dream. As we know from the tale of Joseph K, however, it is difficult to rely on feelings of guilt to generate an inference of guilt in fact. The feelings thrive on psychological sources other than actions that might occasion guilt for sins and crimes actually committed. The centrality of the self in modern thought has led to a general tendency to think about shame in place of guilt. If sin and pollution are the favored foci of the ancients, shame has become the pet theme not only of contemporary psychiatry but of philosophers and social critics attempting to come to grips with crimes of the past. Some rather simple distinctions hold between shame and guilt. People feel shame for who and what they are, and guilt for what they have done. Shame is felt in the eyes of others, real or imagined, and for that reason associated with seeing and be seen (recall Oedipus putting out his eyes). Guilt is experienced as the voice of conscience and therefore associated with hearing. Shame can often be irrational. For example, a hunchback might feel ashamed for the contortions of his body, though there is no suggestion of personal responsibility. You can feel shame about the behavior of other people over which you have no control at all. Guilt, by contrast, has some connection to morality, to right and wrong, to sources of conscience based on rational criteria. The sense of shame in the biblical context hardly differs from the contemporary understanding. The leading pair of passages frame the eating of the forbidden fruit by Adam and Eve. Before they eat of the fruit, we encounter a negative reference to shame: "And they were both naked, the man and his wife, and were not ashamed." (Gen. 2:25) In Luther: Und sie waren beide nackt, der Mensch und sein Weib, und schämten sich nicht. After they eat of the fruit, the reaction seems to be the opposite: "And the eyes of them both were opened, and they knew that they were naked; and they sewed fig leaves together, and made themselves aprons." (Gen. 3:7) (Luther: "Da wurden ihnen beiden die Augen aufgetan, und sie wurden gewahr, daß sie nackt waren "). The text does not tell that they felt ashamed after eating of the fruit, but this is seemingly always inferred from their covering their genitals immediately upon aware of their nakedness. The strong connection between the eyes and the sense of shame also supports the reading of shame into the text after the eating of the fruit. Genesis grasped the seemingly universal truth that people feel shame about having their genitals exposed. It is not entirely clear why. Some people think the genitals reveal how

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much like animals we really are4 and that this is connected to shame felt by Adam and Eve. But we share four basic functions with animals: sex, excretion, eating, and sleeping. We feel shame about the first two (the second being so taboo that it is not even discussed in the Bible), but the latter two animal impulses, eating and sleeping, are rather common human experiences and they rarely generate a sense of shame. The connection between shame and sex is itself a topic of great profundity and one of no minor significance in Christian theology. This is a topic that requires attention in its own right.5 The core experience of shame is feeling exposed, subject to the gaze of another. There is no suggestion in the text that either Adam or Eve judged each other harshly, blamed each other, felt guilt or anything in particular, but they were aware of each other's eyes. And the first reaction to each other's eyes was to sense the nakedness of that part of the body associated with shame. The response to shame, as to nakedness, is to avoid the gaze. This requires one to cover oneself up, as suggested by the metaphor of clothing oneself in fig leaves. Shame in individuals, we can conclude, has a sound grounding both in our experience and in our mythology. The feature that makes it different from responsibility and guilt, however, is its nonrational quality. There is nothing logical about feeling shame for one's genitals. And indeed in nudist colonies people can easily overcome their habit of genital shame. Nor is there anything well-reasoned about minorities feeling ashamed of the way they are, with the resulting desire to conceal their origins and stay "in the closet". On the whole, it seems that the practice of coming out liberates people from the strictures of shame. Yet at the same time, a strong sense of shame provides people with sound moral restraints. Feeling ashamed for, say, cheating or committing adultery is a healthy reaction that strengthens our ties with others. What troubles me, however, is that the way in which many contemporary social thinkers rely upon shame when they seem in fact to be thinking about guilt. Consider the problem assayed by the German philosopher Anton Leist as he reflected on the experience of Germans who visit Auschwitz.6 Some feel shame and others do not. What should the first group say to the second? That they ought to feel shame? (Note they would not say, as parents say to children, "You ought to be ashamed of yourself!" It is hard to imagine a duty to feel shame. We just noted, with regard to shame about a hunched back, that there is no rational basis for the sentiment. There could hardly be a duty to feel the irrational. All we can say is that some have the experience and that some do not. The appeal of shame to contemporary thinkers is not only that the idea is linked more to subjective experience than is guilt but that shame lends itself to discussions of collective experience in a contexts where liberal thinkers balk at the principle of collective guilt. A good example of collective shame as a euphemism for collective guilt comes to the fore in a thoughtful essay by Andras Sajo about living as a Jew in post-Holocaust Hungary.7 Sajo argues that Hungarian Christians should feel collective shame for their participation in the mass murder of Jews after the German invasion in March 1944. As a recognition of this shame, he claims, they should be willing to make reparations to the victims and their fami4

M. Scheler, "Shame and Feelings of Modesty", 1 (grounding the analysis of shame in the human need to distinguish humans from animals).

5

See J.D. Velleman, "The Genesis of Shame", 30. Another topics I resist exploring in this limited framework is the concept of nakedness in these early passages in Genesis. I approach the problem in "Thinking About Eden. A Tribute to Herbert Morris", forthcoming in the Quinnipiac Law Review. A. Leist, "Scham und deutsches Nationalbewusstsein", 369. A. Sajo, "Affordable Shame", 163.

6 7

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lies. As a liberal who believes in the paradigm of guilt exclusively for individual action, he thinks the concept of shame will serve his purposes better. But in fact he would want the Hungarians to go through a process resembling what they would do if they felt collective guilt. Feeling shame is not the kind of sentiment that generates a duty to make compensation. Even if I feel shame for what I personally have done, I am not sure why I would want to compensate someone who has suffered as a result of my action. That would not make me feel less ashamed. But if it is guilt that I am feeling, then compensation might restore my relationship with the victim and reduce the hostility directed toward me. If the Hungarian Christians felt shame about their own, their parents', or their grandparents' role in the murder of Hungarian Jews, the appropriate response would be to try to hide, to cover themselves in order to avoid the gaze of those they injured. This response would not satisfy Sajo. He wants them to come out, to stand up and be counted. Ideally, they should confess. It seems that these are our expectations of people whom we regard as guilty for what they have done. If all or just about all Germans experienced shame when they visited Auschwitz, we could say that they collectively as well as individually experience shame. Another interpretation of collective shame might be that Leist feels shame in his capacity or aspect as a German. He feels ashamed about a personal characteristic that he shares with the entire nation. In this situation, it would not matter how many of his compatriots shared the feeling. The impulse to reparations or to suffer punishment - all of these responses are responses to guilt rather than shame. And though the impulse will arise only if there are feelings or at least a recognition of guilt, the operative feature of guilt in these contexts is not subjectivity but the objective aspect of pollution that we have observed in biblical practices. Reparations and punishment both serve symbolically to cleanse the stains of the past. But these symbolic gestures hardly make sense unless they are read against a biblical backdrop rich in magical events of pollution and cleansing. I realize that there is much in these arguments that might unsettle the sentiments of contemporary liberal thinkers who disavow issues like collective guilt, sin, pollution, and magical modes of undoing the past. It is much more comforting to take refuge with Leist or Sajo in the contemporary appeal of shame, including collective shame. But when the concepts of shame and guilt are properly analyzed, the relevance of guilt, including collective guilt, is hard to deny. We are forced to take the echoes of the biblical past seriously and to understand our debates in the light they still shed on the contemporary mind.

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Bibliography

Burkert, W., "Greek Tragedy and Sacrificial Ritual", Greek, Roman & Byzantine Studies 7 (1966). Fletcher, G.P., "Thinking about Eden. A Tribute to Herbert Morris", forthcoming in Quinnipiac Law Review. Kugel, J., The Bible as It Was, Harvard University Press, 1997. Leist, A., "Scham und deutsches Nationalbewusstsein" [Shame and German National Consciousness], Aktuelle Fragen politischer Philosophie [Current Issues in Political Philosophy], ed. P. Koller and K. Puhl, Hölder-Pichler-Tempsky, 1997. Sajo, A., "Affordable Shame", The Paradoxes of Unintended Consequences, ed. Lord Dahrendorf and Yehuda Elkana, Budapest: CEU Press, 2000. Scheler, M., "Shame and Feelings of Modesty", Person and Self-Value, ed. and trans. M.S. Frings, M. Nijhoff, 1987. Velleman, J.D., "The Genesis of Shame", Philosophy & Public Affairs 27 (2001).

//. Institutional Responses to Historical Injustice

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Transitional Historical Justice1

Ruti Teitel

Contents 1.

Introduction

209

2.

The Dilemmas of Punishment

210

3.

The Transitional Criminal Sanction

211

4.

The Paradigmatic Transitional Response

213

5.

Transitional Justice as Liberal Narrative

215

5.1 Law's History

215

5.2 Narratives of Transition

216

6.

Transitional Justice Deferred and Revived. The Paradox of the Passage of Time

219

1. Introduction In the wake of the new century and millennium, we live in a time where questions of transitional justice are burgeoning.2 Post Cold War transitions have raised a new issue of how to deal with repressive regimes.3 Beyond this, new liberalization has also reopened past wounds raising the issue across the world of how to respond to past injustices from world wars, colonialism, and slavery. These instances have all raised questions associated with transitional justice: Whether to let bygones be bygones? How should societies deal with their evil pasts? What, if any, is the relation between a state's response to its repressive past and its prospects for creating a liberal order? I propose that we should think about law and political transformation in terms of a distinctive conception of justice in the context of political transformation, where law itself plays a constitutive role in the transitions. I contend that the problem of transitional justice arises within the distinctive context of transition - a shift in political orders, more particularly, of change in a liberalizing direction. Understanding the problem of justice in the transitional context, therefore, requires entering a distinctive discourse organized in terms of the profound dilemmas characteristic of these extraordinary periods. The threshold dilemma arises from the context of justice in political transformation: Transitions imply paradigm shifts which affects in the conception of justice; there1 2 3

Paper prepared for Potsdam Conference "Historical Justice". See generally R. Teitel, Transitional Justice. Regarding the Middle East see "U.S. Department of State, International Information Programs: Future of Iraq" at http://usinfo.state.gov/regional/nea/iraq/future.htm regarding post war Iraq.

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fore, law's role appears deeply paradoxical. Law is caught between the past and future, between the backward-looking and forward-looking, between retrospective and prospective. Transitional justice, therefore, is that justice associated with these political circumstances. Whereas, in ordinary times, law provides order and stability, in periods of political upheaval, law offers constraints, as it enables transformation. In dynamic periods of political flux, legal responses generate a sui generis paradigm of transformative law.4 What emerges is a conception of justice that is contextualized and partial; both constituted by and constitutive of the transition.5 What is deemed "just" is contingent and informed by prior injustice. As a state undergoes political change, legacies of injustice have a bearing on what is considered transformative; liberal regimes are defined and legitimated with respect to past state legacies. Indeed, to some degree, it is the legal responses that themselves create transition. This, we shall see, has implications for the policy choices promoted in such periods. In transition, the rule of law is historically and politically contingent, elaborated in response to past political repression. While the rule of law ordinarily implies prospectivity in the law, transitional rule of law is both backward- and forward-looking. 2.

Transitional Historical Justice

Ruti Teitel

The Dilemmas of Punishment

Whether to punish or to amnesty? Punishment dominates our understandings of transitional justice. The core transitional justice debate is often formulated in terms of criminal justice, whether or not to punish the predecessor regime?6 In the public imagination, transitional justice is generally linked with the trials of ancien regimes. Trials are thought to be foundational and to enable the drawing of a bright line demarcating the normative shift from illegitimate to legitimate rule.7 However, the exercise of the state's punishment power in the circumstances of radical political change raises profound dilemmas. Conventional understandings of individual responsibility are frequently inapplicable. The low incidence of successor trials reveals the real dilemmas in dealing with systemic wrongdoing by way of the criminal law. In the transitional context, successor criminal justice raises profoundly agonizing questions and has spurred the emergence of new legal forms, of limited sanctions that fall outside conventional legal categories. The basic transitional dilemma is how to conceptualize justice in the context of a massive political shift. Within international law, this problem is apparently mitigated, as the international legal system offers a degree of continuity in law.8 The postwar entrenchment of international legal norms affords a jurisdictional basis that transcends the limits of domestic criminal law in transition. International standards and forums appear to uphold the rule of law, while satisfying core fairness and impartiality concerns. Yet, another core dilemma of transitional criminal justice is how to ascribe criminal accountability for offenses that commonly implicate the state in repression policy. Postwar international humanitarian law offers a normative framework and language for thinking about successor justice.9 The rubric of the law of war allows re-conceptualizing

regime wrongdoing. International law offers a standard in the "Nuremberg Principles", a turning point in the conceptualization of responsibility for state crime, where, for the first time, responsibility was attributed to individuals for atrocities under international law. The Nuremberg's principles of individual responsibility mediate the individual and the collective,10 wreaking a radical expansion of potential individual criminal liability at both ends of the power hierarchy. The post-Nuremberg liability explosion has profound ramifications that have not yet been fully absorbed." The massive contemporary expansion in potential criminal liability raises real dilemmas for successor regimes deliberating over whom to bring to trial and for what crimes. These dilemmas continue in the contemporary international criminal proceedings. In international humanitarian law, the understandings of wartime responsibility extend beyond the international realm to actions within the state.12 At the adhoc criminal tribunals at the Hague where there are still war crime trials, the postwar understandings of state persecution have expanded to include nonstate actors. It is also seen in the jurisdiction of the ad hoc international war crimes tribunal regarding the the former Yugoslavia, as well as in the jurisdiction of the permanent International Criminal Court. In these contemporary instances, a dynamic understanding of "crimes against humanity" has moved beyond its nexus to armed conflict, to protect against persecution and violations of equal protection in times of peace. Though the strength of international law may not be evident in a record of international trials, its normative force is evident in international discourse where it stands for what minimal rule of law exists in contemporary global politics. 3.

8 9

See R. Teitel, Transitional Justice, 213-230. See ibid. For the inquiry, see A. Neier, "What to Do About the Guilty". For the leading argument to punish, see D. Orentlicher, "The Duty to Prosecute Human Rights", 00 Yale Law Journal 100 (1991). See R. Teitel, Transitional Justice, 20f. See R. Teitel, "Humanity's Law".

The Transitional Criminal Sanction

Despite the appeals to criminal justice in the abstract, transitional practices over the last half-century reflect the recurring problems of justice as a result of the norm shift characterizing transition. These compromised conditions of justice mean real limits on the exercise of the punishment power in periods of political transition. These rule of law dilemmas help explain why, despite the dramatic expansion in criminal liability in the abstract, enforcement lags behind. And so, transitional practices reveal a pattern of criminal investigations and prosecutions followed by little or no penalty. While ordinarily punishment is conceptualized as a unitary practice that includes both the establishment and penalizing of wrongdoing, in the transitional criminal sanction, the elements of establishing and sanctioning have become somewhat detached from one another. This "limited sanction" distinguishes criminal justice in transition.1 The limited criminal sanction constitutes compromised prosecution processes that do not necessarily culminate in full punishment, implying differentiated phases of establishing responsibility, and ascribing penalty. Depending on how limited the process, investigations may or may not lead to indictments, adjudication, conviction, and punish-

10 4 5 6 7

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11 12 13

See "The Nuremberg Principles: Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal", Adopted by the International Law Commission of the United Nations 1950, Report of the International Law Commission Covering its Second Session, 5 June - 29 July 1950, Document A/1316, Yearbook of the International Law Commission 1950. Vol. II, 374-380. See R. Teitel, "Human Rights Genealogy". See R. Teitel, Transitional Justice, 20f. Ibid.

212 RutiTeitel ment. The criminal sanction may be limited to an investigation establishing past wrongdoing. The limits of the transitional criminal sanction are well illustrated throughout history: in post-World War I and World War II cases, in the postmilitary trials of southern Europe, as well as by the contemporary successor criminal proceedings in Latin America and Africa, and in the wave of political change in Central Europe, following the Soviet collapse. Though often forgotten, post-World War II successor justice illustrates the limited criminal sanction. Years later, a similar sequence unfolded in Southern Europe: Greece's trials of its military police culminate largely in suspended or commutable sentences. A similar pattern appeared in the transitions out of military rule in Latin America. In the 1980's, soon after the Argentine junta trials, begin the limits on the follow-up trials. Ultimately, pardons would be extended to everyone convicted of atrocities, even the junta leaders. Amnesties became the norm throughout much of the continent: Chile, Nicaragua, and El Salvador. The story repeats itself after the Communist collapse. Ten years after the revolution and the story is the transitional limited criminal sanction. In Unified Germany's "border guards" trials, suspension of sentences is the norm. This was also true of the few prosecutions in the Czech Republic, Romania, Bulgaria, and Albania, which all reflect a limiting of the final phase of punishment policy. Sometimes the limiting of the criminal sanction is used strategically, as an incentive to achieve other political goals, such as cooperation in investigations or other political projects; in Chile, a law exempting its military from prosecution, was conditioned on officers' cooperation in criminal investigations relating to past wrongdoing under military rule. Penalties were dropped up front, and on condition of, confession to wrongdoing in postapartheid South Africa, the amnestying of crimes deemed "political" left a window open for investigations into past wrongs, a practice which could also be understood as a limited prosecutorial process. Other contemporary legal responses, such as the ongoing ad hoc international tribunals established to adjudicate genocide and war crimes of Yugoslavia and Rwanda, reflect similar developments.14 In Rwanda, there has been resort to traditional criminal proceedings, which also reflect a form of limited criminal sanction that has developed in that region. The "limited criminal sanction" offers a pragmatic resolution of the core dilemma of transition: The basic transitional problem is whether there is any theory of individual responsibility that could span the move from a repressive to a more liberal regime. The emergence of the limited sanction suggests a more fluid way of attributing individual responsibility for systemic wrongs perpetrated under repressive rule as well as of thinking about what punishment does: clarifying and condemning wrongdoing, without necessary attribution of individual blame and penalty. The transitional sanction prompts rethinking the theory of punishment, of thinking about punishment's justification as more closely connected to discrete stages of the criminal process. The emergence of the transitional sanction points to an alternative sense of the retributivist idea. Though this sanction is characterized by its limited character, transitional practices suggest that core retributive purposes, such as, condemnation of past wrongdoing are vindicable by diminished - even symbolic - punishment. The recognition and condemnation of past wrongdoing has transformative dimensions. Where wrongdoing is publicly established, it can liberate the collective in a measured process of transformation. More exposure can stigmatize and disqualify affected persons from entire realms of the public sphere. 14

See R. Teitel, "Bringing the Messiah through the Law".

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In extraordinary circumstances of radical political change, some of the purposes ordinarily achieved by the full criminal process are advanced in the sanction's more limited form. Practices in such periods point to the mediating role of the transitional limited sanction. The absence of plenary punishment in periods of political change suggests that more complex understandings of criminal responsibility emerge in applying the principle of individual responsibility in the distinct context associated with shifts out of repressive rule. The rule of law within a liberalizing state is commonly equated with individual responsibility. Nevertheless, this perspective on punishment does not account well for its role in times of radical political flux, where the transitional criminal form is informed by values related to the distinctive project of political change. Ordinarily, criminal justice is theorized in starkly dichotomous terms, as animated by either a backward-looking concern with retribution, or a forward-looking, utilitarian concern with deterrence, considered internal to the justice system. In transition, however, punishment is informed by a mix of retrospective and prospective purposes: whether to punish, or to amnesty, to exercise or restrain criminal justice is rationalized in overtly political terms. Values like mercy and reconciliation generally regarded as outside of criminal justice, become part of the transitional deliberation. The explicit politicization of criminal law in these periods challenges ideal understandings of justice and turns out to be a persistent feature of jurisprudence in the transitional context. What distinguishes transitional measures is their use to construct normative change. Even in its arch limited form, the limited sanction is a symbol of rule of law that enables expression of a critical normative message. Transitional responses' focus vary from country to country to "undo" rationalized past political violence, through procedures of inquiry and indictment, rituals of collective knowledge that enable isolation of past wrongdoing. Where the prior regime was sustained by persecutory policy rationalized within a legal system, the policy rationale is addressed by the transitional critical legal response. Critical responses to past persecution express the message that the policy was manmade, and, so, reformable. Through rituals of appropriation and misappropriation, of avowal and disavowal, of symbolic loss and gain, legal processes enable the perception of transformation in a liberalizing direction. 4.

The Paradigmatic Transitional Response

The limited sanction's operative effects: establishing, recording, and condemning past wrongdoing, display affinities with other legal processes that are also constructive of transition. The massive and systemic wrongdoing characteristic of modern repression implies recognition of a mix of individual and collective responsibility. So, there is a pronounced overlap of punitive and administrative institutions and processes. Individualized processes of accountability give way to administrative investigations and commissions of inquiry, the compilation of public records, official pronouncements and condemnation of past wrongs. These are often subsumed in state histories commissioned pursuant to a political mandate for reconciliation, as in South Africa. Whether bureaucratic forms of public inquiry and official truth-tellings are desirable and signify liberalization is contingent on state legacies of repressive rule. But, the generalized transitional use of these independent historical inquiries can be seen in contemporary human rights law.

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215

Ruti Teitel

The paradigmatic affinities discussed here bear on the recurrent question in transitional justice debates concerning, What is the right response to repressive rule? Which is more apt to supporting a lasting democracy? Framed this way, the question assumes a transitional ideal, that normative concerns somehow militate for a particular categorical response. However, this is simply the wrong question. There is no one right response for how to deal with a state's repressive past. The question needs to be reframed. Transitional justice is politically contingent upon the character of past wrongdoing, even as at the same time, there appears to be a paradigmatic transitional response in the law. Transitional constitutionalism, criminal and administrative justice, and the rule of law share affinities in these norms' contingent relation to prior rule, as well as in their operative work in the move to a more liberal political order. Let us now turn to law's constructive role in transition. How is transition constructed? What is law's role in political passage? The paradigmatic form of the law that emerges in these times operates in an extraordinary fashion, and itself plays a constructive role in the transition. In these circumstances, law's distinctive feature is its mediating function, as it offers the potential for maintaining level of formal continuity, while also engendering transformative discontinuity. The extent of formal continuity will depend on the modality of transformation, while the content of the normative shift will be a function of history, culture, and political tradition, as well as the society's receptiveness to innovation. • • Through transitional legal practices, law constructs transitions. The transitional legal response is characterized by its limited form, embodied in the provisional constitution and purge, the limited sanction and reparation, the discrete history and the official narrative. Transitional operative acts include the pronouncements of indictments and verdicts; the issuing of amnesties, reparations, and apologies; and the promulgation of constitutions and reports. These practices, whether of prosecution, lustration, or inquiry, share critical features as ways to publicly construct new collective political understandings. These are all transitional actions taken to manifest change by publicly sharing new political knowledge. Law works often on the margin, as it performs critical definitional work of separation from the prior regime, and integration with the successor regime. Transitional law has a mediating quality, as it is law between regimes. Transitional legal practices' peculiar efficacy is their ability to effect separation and integration functions - all within continuous processes. The legal process has become the leading transitional response for its ability to convey publicly and authoritatively the political differences that constitute the normative shift between regimes. These processes construct the relevant political difference between illiberal and liberal regimes. In its symbolic form, transitional jurisprudence reconstructs the relevant political differences through changes in status, membership, and community. While the relevant critical difference is necessarily contingent, it is commonly recognized as legitimate, in light of a given successor society's past legacies. Through the language of law, the new order is legitimated. In modern political transformation, legal practices enable successor societies to make liberalizing political change. The turn to law by mediating the normative hiatus and shift characterizing transition, comprises important functional, conceptual, operative and symbolic dimensions. Law epitomizes the liberal rationalist response to mass suffering and catastrophe; it expresses the notion that there is, after all, something to be done. By engaging in transitional justice debates, successor societies signal the rational imagining of a more liberal political order.

Legal rituals offer the leading alternative to the violent responses of retribution and vengeance in periods of political upheaval. The transitional legal response is deliberate, measured, enabling gradual, controlled change. Moreover, as the question of transitional justice is worked through, the society begins to perform the signs and rites of a functioning liberal order. Transitional law transcends the "merely" symbolic to be the leading ritual of modern political passage. Ritual acts enable the shift between two orders: of the predecessor and successor regimes. Since contemporary transitions have been characterized by their peaceful occurrence within the law, it falls upon legal processes for the most part, to perform the critical "undoings", the inversions of the predicates justifying the prevailing regime, through public processes that produce the collective knowledge constitutive of the normative shift. Legal processes simultaneously disavow aspects of the predecessor regime, and affirm these ideological changes that will be perceived to constitute liberalizing transformation. New democracies respond to legacies of injustice in diverse ways. Patterns across legal forms constitute a paradigm of "transitional jurisprudence", rooted in prior political injustice. In these processes, law's role is constructivism Transitional jurisprudence emerges as a distinct paradigmatic form of law responsive to and constructive of the extraordinary circumstances of periods of substantial political change. In these times, the conception of justice is partial, contextual, and situated between at least two legal and political orders. Legal norms are multiple, the notion of justice compromised. Transitional jurisprudence centers on the law's paradigmatic use in the normative construction of the new political regime. 5.

Transitional Justice as Liberal Narrative

Transitional justice's main contribution is to advance the construction of a collective liberal narrative. Its uses are to advance the transformative purpose of moving the international community, as well as individual states in transition, towards greater liberalizing political change. Just how does transitional justice offer a liberal narrative? What is law's potential in constructing a story that lays the basis for political change? We might begin with the trial, but the transformative dimension will also be evident in other legal responses. 5.1

Law's History

Punishment has a central role in advancing "historical justice". Trials have longed played the arch role in transitional historymaking. Criminal justice depends on public, formal, shared processes that link up the past to the future, the individual to the collective. Historically, criminal trials are the historical, ceremonial form of shared memorymaking in collective, a way to work through community events in controversy. Even in ordinary times, the criminal trial's purposes are both to adjudicate individual responsibility, but also to establish the truth about an event in controversy in a society; this is even more true of the trial's role in settling historical controversies characteristic of periods of transition. Transitions follow regime change, and periods of heightened political and historical conflict; therefore, a primary purpose of successor trials is to advance a measure of historical justice.15 15

See M. Osiel, Mass Atrocity, Collective Memory and the Law.

Transitional

216 RutiTeitel What sort of "truths" are established in such periods? One might understand these to be "transitional critical truths", shared political knowledge that responds to the ideology promulgated by the prior predecessor regime. Through the trial, the collective historical record produced both delegitimizes the predecessor regime, and legitimizes the successor. While military or political collapse may bring down repressive leadership, unless the bad regime is also publicly discredited, its ideology may endure. The leading historical trials, whether of the major war criminals at Nuremberg, or, the public trials of Argentina's military junta, are remembered not for condemning individual wrongdoers, but, for their roles in creating lasting historical records of state tyranny.16 A more recent illustration is the trial of Akayesu which formally established the facts of the atrocities and genocide perpetrated in Rwanda. Transitional criminal processes enable authoritative accounts of past evil legacies and collective historymaking. There are many representations: the recreation and dramatization of the repressive past in the trial proceedings, in the written transcript, trial records and the judgment. In the contemporary post Cold War period, justice in globalizing politics gives rise to even more complicated and dissagregated understandings of responsibility, and to a problematizing of the public and the private. There is an expanding role for multinationals in obtaining monetary settlements that legitimate the transforming global private regime. The connection of law and history seen in the criminal process is just part of a broader role for law in constructing the narratives of political transition. The next Part explores that structure. 5.2

Narratives of Transition

Transitional legal narratives, whether trials, administrative proceedings or historical commissions of inquiry, make a normative claim about the relation of a state's past to its prospects for a more democratic future. In the transitional narrative, collective knowledge becomes relevant to the possibility of change and supports the move away from dictatorship, and to a more liberal future. Transitional narratives follow a distinct rhetorical form identified here in terms of the structure of the story of political change: Beginning in tragedy, they end on a comic or romantic mode. In the classical understanding, tragedy implicates the elements of catastrophic suffering by individuals, whose fate, due to their status, implicated entire collectives, followed by some discovery or change from ignorance. Contemporary stories of transitional justice similarly involve stories of affliction on a grand scale. Whereas in tragedy, knowledge seems only to confirm a fate foretold. In the transition, while such narratives begin in a tragic mode, there is ultimately a non-tragic resolution. Something happens in these accounts; the persons enmeshed in the story ultimately avert tragic fates to somehow adjust and even thrive in a new reality. In the transitional accounts, change necessitates a critical juncture, knowledge's revelation actually makes a difference. The country's past suffering is somehow reversed, leading to a happy ending of peace and reconciliation. The transitional narrative structure is traceable in accounts of periods of political transformation. National investigatory or "truth" reports commonly read as tragic accounts that end on a redemptive note. The collective suffering operates as a vehicle to a 16

See e.g. Nunca Mas Report of the Argentina National Commission on the Disappeared.

Historical Justice

217

greater societal self-knowledge than is thought to enhance prospects for an enduring democracy. So, to illustrate, after disappearance policies in Latin America, bureaucratic processes were deployed to set up investigatory commissions. Entitled "Never Again",11 the truth reports claim to deter future suffering. History provides lessons. Knowledge of the past suffering is thought to allow liberating transition. In transitional history making, the story has to come out right. The truth about the evil past is hidden, unavailable, foreign, and without some form of clarification of the deception and ensuing self-understanding. By contrast with the Latin American transitions, the post-Communist transitions are characterized by the struggling over what to do with the state archives. The region's.transitional accounts begin with the story of invasion by a foreign enemy; and then the troubling discovery of collaboration closer to home permeating the society. Transitional narratives, whether out of a repressive totalitarian rule in the former Soviet bloc, or, out of authoritarian military rule; whether Latin America's truth reports, or post Communist "lustration", all involve the tragic discovery of the revelation of new political knowledge. Liberalizing knowledge is contingent on state legacies of repressive rule. The successor truth regimes' function is critical to prior regime. This contingency is evident in comparing contemporary transitions. After authoritarian regime rule, where the truth was a casualty of disappearance policies, the critical response is the "official story". Whereas after totalitarian rule, where the official history constituted an instrument of repressive control; the relevant political knowledge was limited to a critical response to repressive state histories by privatization of that controlled state history, by securing of access to state archives, and simultaneously introduces competing historical accounts. Transitional narratives follow a distinct structure. Knowledge's exposure introduces the possibility of change through the potential of human action that there is something to be done. The notion is that, now that the truth is known, the political future will be different. A revealed truth can bring on the move from the tragic past, to the promise of a hopeful future. Transitional justice operates as a device turned around: Legal processes vest persons with transformative powers, judges, lawyers, commissioners, experts, witnesses with special access to privileged knowledge. Reckoning with the past enables the sense of a liberalizing transformation. Transitional narratives suggest that minimally what is at stake in liberalizing transformation is a change of interpretation. In this process, when citizens' understanding of the ambient situation changes, truth regimes help to support the new politics.18 The pursuit of historical justice is not simply responsive to political change, but rather helps to construct the political transformation. New political regimes go together with new truth regimes. The transitional accounts are progressive histories connecting the society's past with its future prospects. The change in political knowledge allows the move from bad, to a redemptive future. The change is from "living within a lie to living within the truth". Even transitional literature reflects stories of this move, of "living within a lie", to the revelation of newly gained knowledge and self-understanding, effecting a reconstitution of personal and political identity, and of relationships. In the life of the state, in political flux, the narrative's role is to construct perceptible transformation. Transitional truth-tellings are not new beginnings, but build upon preexisting state political legacies and are situated within the state's preexisting national 17

18

The Prologue to the Report of the Argentine National Commission on the Disappeared declares the military dictatorship "brought about the greatest and most savage tragedy" in the country's history. See ibid. See V. Havel, "The Power of the Powerless", 147f.

218 RutiTeitel story. Critical transitional responses negotiate between contested accounts in historical conflict. As political regimes change, transitional histories offer a succession of interpretive accounts or truth regimes, so preserving the state's narrative thread. Transitional law has become the leading ritual of modem political passage. The turn to law is the liberal secular response to mass suffering and catastrophe; and expresses the notion that there is something to be done. In the liberal society, hope is put in the air. Ritual processes enable passage between predecessor and successor orders. In contemporary transitions, legal processes perform the critical undoings of the prior regime, through public procedures capable of producing collective knowledge transformative of political identities. The transitional legal response's paradigmatic feature is that visibly advances the reconstruction of public knowledge, enabling the separation from the past, as well as integration towards another future. The paradigmatic transitional legal processes rely on discrete changes in salient public political knowledge for their operative transformative action. Changes are constructed through shared public justifications underlying political decision making and behavior that simultaneously disavows aspects of the predecessor ideology and justify the ideological changes constituting liberalizing transformation. Transitional legal processes in this way contribute to the interpretive changes that create the perception of political social transformation. Such processes are effective ways of changing public reasoning in the political order; for these processes are predicated on authoritative representations of public knowledge. Nevertheless, there is contingency in what knowledge will advance the effective construction of the normative shift underpinning political regime change. The force of transitional constructions in public knowledge depends on critical challenges to the policy predicates and rationalizations of predecessor rule and ideology. In transition, what will constitute the relevant political truth is often marginal and discrete: for example drawing the line between an "unarmed civilian" and "combatant", and between political and arbitrary violence. Such findings can topple a regime (at least on the normative level) by undermining a key ideological predicate of repressive policies. These reinterpretations of the relevant political knowledge challenge the predicates legitimizing the prior regime, and offer new bases for the rule of law. Law offers the symbols and rituals of contemporary political passage. Legal rituals, trials and other public hearings and processes produced transitional histories, social constructions of a democratic nature with a broad reach. Rituals of collective historymaking help to publicly construct the sense of a transition, performing the critical undoings that respond to the prior repression: the letting go of discrete facts justificatory of the predecessor regime, critical to political change, dividing political time into a "before" and "after". Historical production practices associated with transition often publicly affirm what is already impliedly known in the society, transitional processes bring forward and enable a public letting go of the evil past. Transitional narratives highlight the role of knowledge, agency and choice. Transitional histories are dense layered narratives that weave together and mediate individual and collective responsibility. By establishing "critical political truths" about the past, these accounts are progressive narratives as they suggest the course of events might have been different - had this knowledge been previously known - adverting to the potential of individual action. The message is of avertable tragedy. Transitional history's expression of the hope for prospective individual choice and human action goes to the core of a liberal human rights discourse.

Transitional Historical Justice

219

Transitional justice histories are redemptive stories, of return, of wholeness, of political unity. These often turn to the corrective, offering an alternative successor identity centered on political unity. Transitional justice narratives offer an alternative way to reconstitute the collective - across racial, ethnic, and religious lines - a contingent political identity responsive to a society's particular legacies. Transitional narratives advance construction of a transformative political order; they emphasize the possibility of bounded choice, of the reconciliation of the potential for individual agency within a situated politics. Transitional narratives emphasize the possibility of societal self-understanding and averting tragic repetition associated with liberation. Despite past legacies, there are redemptive political possibilities identified with the contemporary liberal state. Finally, transitional justice as liberal narrative ought not become a fixed identity. Entrenchment of unity policies can stunt the development of party politics and the building of a more robust political culture. Transitional justice underscores the significance of ongoing counternarratives and of nurturing transitional modality. These dynamic processes enable effective liberalization strategies, and allow change. 6.

Transitional Justice Deferred and Revived. The Paradox of the Passage of Time

What are the consequences of the passage of time for transitional justice? The justice of such claims is generally expected to weaken over time. In theorizing about our intuitions about injustice over time, Jeremy Waldron argues for the supersession over time as new circumstances overtake past injustice.19 Still, these intuitions do not appear to pertain to the transitional case. The effect of time appears against our intuitions, transitional projects are often undertaken long after the relevant state persecution, and often after the passage of much time. Temporizing often mitigates transitional dilemmas. As the passage of time increases, the likelihood of regime changes increases affectively the conditions for retributive responses. For example, trials regarding events that occurred in the 1970's underway today in Latin America and Spain. Trials relating to World War II are still underway in Germany, and elsewhere in Europe. More than a half century after World War II atrocities, survivors continue to claim redress.20 Reparatory efforts in the former Soviet bloc are occurring after the passage of extended periods of time. There are many global claims after time, international deliberations ongoing right now concerning reparations for slavery.21 After wars and occupations, transitional redress is often long deferred; these reparatory practices do not appear to be diminished by the passage of time. Where the wrongdoing at stake pertains to a prior regime, the passage of time may have contradictory consequences for the possibilities of transitional justice. Time affects political change with ramifications for the conditions of justice, but our intuitions do not well account for its effect upon victims' reparatory rights, as well as for the state's obligation to pay compensation - consequences that once again underscore core features that distinguish corrective justice in the abstract, from reparatory justice in transitional circumstances. The salient feature is the state's role in past wrongdoing and the legacy's ongoing consequences for the possibility of repair. Time's role is paradoxical in these political circumstances. The passage of time can facilitate identifying the consequences of past wrongs, as there is a greater political dis19 20 21

See J. Waldron, "Redressing Historic Injustice". See R. Teitel, 'Transitional Justice Genealogy". Ibid.

Transitional Historical Justice

220 Ruti Teitel

tance from the predecessor regime and broader access to the archives of the state. Moreover, the greater the access to state archives and documentation, the greater the likelihood of compensation. Finally, the passage of time also expands the bases and claims to redress. After time, the dilemma of transitional reparatory projects that are temporized, or postponed, raises problems of intergenerational justice. Whereas, in conventional corrective justice, victims are repaired by their wrongdoers, and, or, by the wrongdoer's political generation, in transitional reparatory projects, victims' payments often come from general government funds. With time, change occurs both in the identities of the beneficiaries, and of those doing the paying. Is it just that the present generation should pay for the wrongs perpetrated by regimes long gone? After time, reparatory justice, raises the profound intergenerational question of what obligations subsequent successor regimes owe to victims of earlier generations. After time, the fairness of reparations is an important question for transitional societies struggling with these obligations. Justifying a successor regime's assumption of responsibility after the passage of time, clarifies the salient considerations to a state's inherited legacy of wrongdoing. The question is conceived as involving succession to a continuous moral legacy. Contemporary reparatory schemes intended to redress Stalinera injustices illustrate the dilemma of the passage of time, as these have been challenged generally justified in moral terms. In another example, more than a half century after the war, in Germany, despite the apparent absence of personal wrongdoing in the successor generation, there is, nevertheless, the sense that successor generations succeed to bad predecessor policies, by which they have unjustly benefited. Another way to think about this is as the prior generation's having squandered precious national moral resources, a deficit passed on to subsequent generations, which, ultimately, must assume the debt. Societies in transition deliberating over reparatory schemes after time reflect just this understanding of moral deficit. The problem of transitional reparatory justice between generations is considered to involve the inheritance of a "deficit" in the country's moral resources. This sort of moral language justified reparations in the deliberations concerning Germany's war-related payments to victims of Nazi persecution. Reparation payments appear to serve as cancellations, or exchange, for the buildup of moral capital. Indeed, today in the newest settlements the term used is buying "legal peace". Similarly, in the postmilitary Latin American redress schemes, the reparations' stated purposes include restoration of the state's moral credibility. Similar language resounding in moral considerations appears in other reparatory policies, such as in the American compensation scheme for citizens of Japanese-American descent interned during World War II. After the passage of time, reparatory acts become increasingly symbolic, often taking on the form of apologies. Apologies have been called for in responses to postwar, as well as other historic struggles, such as slavery. As time passes, the past harm inflicted appears to be largely political reputation in the public eye and, therefore, redressable by political apology. After the passage of time, transitional justice is most likely to take this form. Past illiberal legacies pose enduring challenges to the legitimacy of liberalizing states. This challenge helps to clarify successor generations' assumption of obligations for the past. Past legacies imply longstanding societal concerns, often with grave implications for contemporary and future successor generations. After time, the sense of injustice is only heightened. Reparatory measures serve as symbols of the transition; and can also be used to consolidate its liberalizing gains. A contemporary regime's succes-

221

sion to old obligations demonstrates the nexus between the assumption of collective responsibility, and the reconstitution of political identity over time.

Bibliography Havel, V., "The Power of the Powerless", Open Letters. Selected Writings 1965-1990, trans. Paul Wilson, Vintage Books, 1992. Neier, A., "What to do about the Guilty", New York Review of Books, February 1, 1990. Nunca Mas Report of the Argentina National Commission on the Disappeared, English ed., Farror, Straus and Jiroux, 1986. Orentlicher, D., "The Duty to Prosecute Human Rights", Yale Law Journal 100 (1991). Osiel, M., Mass Atrocity, Collective Memory and the Law, Transaction Publishers, 1999. Teitel, R., "Human Rights Genealogy", Fordham Law Review 66 (1981). Teitel, R., "Bringing the Messiah through the Law", Human Rights in Political Transition. Gettysburg to Bosnia, ed. C. Hesse and R. Post, Zone Books, 1999. Teitel, R., Transitional Justice, Oxford University Press, 2000. Teitel, R., "Humanity's Law. Rule of Law for a Global Politics", Cornell International Law Journal 35 (2002). Teitel, R., 'Transitional Justice Genealogy", Harvard Human Rights Journal 16 (2003). Waldron, J., "Redressing Historic Injustice", this volume.

223 A Case Study of Transitional Justice. Athens in 411 and 403 B.C.

Contents 1.

Introduction

223

2.

Athenian Democracy

223

3.

The First Oligarchy and Its Demise

226

4.

The Second Oligarchy and Its Demise

227

5.

Lysias

232

6.

Summary

236

1. Introduction Transitional justice - retribution and restitution in the transition to democracy - is almost as old as democracy itself. In 411 B.C. and then again in 403 B.C., the Athenians saw the overthrow of democracy by an oligarchy, followed by defeat of the oligarchs and restoration of democracy.1 In each case, the return to democracy went together with retributive measures against the oligarchs. In 403, the Athenians also took steps towards restitution of property that had been confiscated by the oligarchic regime. The next episodes of transitional justice occurred some 2,350 years later, at the end of the Second World War. From then to the present, dozens of episodes have taken place. Uniquely, the Athenians had two episodes of transitional justice that followed closely upon one another. It seems likely that after the first episode some learning took place, shaping the next occurrence. After the collapse of the first oligarchy in 411, the Athenians restored the pre-oligarchic democracy, carried out harsh retribution, and enacted new laws to deter future oligarchs from trying to take power. What they did not do, was to attack the root causes of the oligarchic coup. In 403, the returning democrats reacted differently. On the one hand, they enacted constitutional changes to eliminate features that had brought democracy into disrepute. On the other hand, they pulled their punches in dealing with the oligarchs, preferring the forward-looking goal of social reconciliation over the backward-looking goal of retribution.

In the following I rely heavily on M. Ostwald, From Popular Sovereignty to the Sovereignty of Law. My indebtedness to M.H. Hansen, The Athenian Democracy in the Age of Demosthenes, will also be obvious. The most recent monograph on the transition in 403 is T. Loening, The Reconciliation Agreement of 403/402 B.C. in Athens. Although many of the stark statements in the text ignore important controversies in the scholarly literature, I do not think this affects the substance of the argument, as summarized towards the end.

224 Jon Elster

2. Athenian Democracy To understand the two transitions and the decisions taken in their aftermath we have to go back to the beginning of Athenian democracy almost two hundred years earlier. In 594, Solon was given carte blanche by the two opposing factions to reform the laws.2 Three of his reforms are directly relevant for transitional justice. He enacted an amnesty law that restored civil rights to those who had been disenfranchised, except exiles condemned on charges of homicide, massacre or seeking to establish a tyranny.3 This law was the model for the amnesty legislation of 405 B.C. that, in the wake of the defeat of Athens by the Spartan fleet, canceled some of the harsh sentences passed after the overthrow of the oligarchs in 411.4 The purpose of the amnesty was to reunite the city, but it came too late. Also, Solon enacted a "peculiar and surprising law, which ordains that he shall be disfranchised who, in time of faction, takes neither side", the citizen being expected to "espouse promptly the better and more righteous cause, share its perils and give it his aid, instead of waiting in safety to see which cause prevails".5 Finally, Solon introduced an important change in the Athenian legal system. Then and later, there was no public prosecutor. All suits had to be brought by private individuals. Solon's reform was to allow any citizen to start a prosecution, either on behalf of the injured person or simply in the public interest. One effect of the law was to create an incentive for frivolous suits by "sycophants", or professional denunciators, who would bring a suit against a wealthy man to blackmail him by offering to drop the case. They were widely resented by the upper classes, and vigorously prosecuted by the second oligarchy. Other pieces of Solon's legislation are indirectly relevant, as the impetus to a process of democratization that eventually led to untrammeled popular rule triggering an oligarchic backlash. He abolished debt slavery, thereby creating an important condition for effective democracy. At his time, all citizens could vote in the assembly and serve on the popular courts, but eligibility for some offices was reserved for the nobles ("wellborn"). After his reforms all criteria of eligibility were defined in purely economic terms, so that birth no longer was decisive. Among the four property classes, members of the lowest were excluded from all state offices. For the most important offices, only members of the top class or the two top classes could be chosen. In 457, members of the third-ranked class became eligible for some of these high offices. Yet even though members of the lowest class remained ineligible, they exercised great influence as members of the Assembly, of the popular courts, and (after the reforms of Cleisthenes in 507) of the Council of the Five Hundred that controlled the agenda of the Assembly. The rights to vote and to hold office may be spurious if their exercise is costly. As Aristotle notes in the Politics (1308b-1309a), "If office bought no profit, then and only then could democracy and aristocracy be combined; for both notables and people might have their wishes gratified. All would be able to hold office, which is the aim of democracy, and the notables would be magistrates, which is the aim of aristocracy." A decisive step to a more effective democracy was taken by Pericles in the mid-fifth century, when 2

The basic sources are Plutarch's Life of Solon and Aristotle's Constitution of Athens. The latter is usefully interpreted and corrected by J.M. Moore, Aristotle and Xenophon on Democracy and Oligarchy.

3

Plutarch, Life of Solon, xix.3-4. This law was the model for the amnesty legislation of 405 B.C. that, in the wake of the defeat of the Athenians by the Spartan fleet, canceled some of the harsh sentences passed after the overthrow of the oligarchs in 411 (Andocides, "On the Mysteries", 73-79). The purpose of the amnesty was to reunite the city (ibid.), but it came to late. Andocides, "On the Mysteries", 73-79. Plutarch, Life of Solon, xx. 1.

4 5

A Case Study of Transitional Justice

225

he instituted daily pay for jurors, for members of the Council of the Five Hundred, and for magistrates.6 The class structure could also influence politics by its link to military functions. By and large, the navy was manned by the lowest property class (thetes) and the infantry (hoplites) by the second-lowest. As Athens in the period that concerns us was more or less constantly at war, the presence or absence of these groups in the Assembly could sway the outcome: "Radical democracy was introduced by Ephialtes' reforms in 462 which were passed by the Assembly when 4000 hoplites of the middle class were away fighting in Messina. Fifty-one years later the radical democracy was replaced by the oligarchic rule of the Four Hundred, and that constitutional change was passed by an Assembly in which the thetes were probably under-represented, because the meeting was held outside the walls and because the entire Athenian navy was stationed off Samos."7 Not surprisingly, the impetus for the restoration of democracy came from that very same navy at Samos. The second highest group, the cavalry (hippeis), was seen as closely associated with both oligarchies. As members of the Assembly, the Athenians could vote laws and decrees, but it remained to implement them. Perhaps the most remarkable feature of the full-fledged Athenian democracy is the degree of control the citizens exercised over those who were to carry out their decisions. Although most office holders were chosen by lot, the important offices were elective. Whether chosen by lot or elected, all magistrates had to undergo a mandatory scrutiny before and after taking office. Whereas the ex ante scrutiny was usually a formality (but see below for exceptions), the ex post examination could be a serious business. Moreover, magistrates were also subject to prosecution for "crimes against the state". These control functions had originally been lodged in the Areopagus, an elite body consisting of former high officials belonging to the highest property group, but after the reforms of Ephialtes they devolved on the Council and finally on the popular courts. By the mid-fifth century, a succession of reforms had created the potential for abuses of unrestrained popular power.8 As reflected in the title of Martin Ostwald's work, the Athenians had popular sovereignty but not yet the rule of law. For a while, as he also 6

7 8

Payment for going to the Assembly was established only in the following century. By contrast, at that later time payment for magistrates seems to have been abolished, arguably "a retreat from radical-democratic principles and another sign that the Athenians from 403/2 had opted for a more 'moderate' form of democracy" (M.H. Hansen, The Athenian Democracy in the Age of Demosthenes, 241). Other aspects of this retreat from radical democracy are discussed below. Ibid., 126. We may wonder how this came about. There was certainly no democratic revolution. Although the masses may have used their voting rights to expand their power, this does not seem to have been the main mechanism. Rather, the elites found it in their interest to sponsor popular measures. J. Ober, Mass and the Elite in Demcratic Athens, 85) notes that "by the time of Cleisthenes, the elites recognized mass ambitions as a new weapon to use against each other. As a result, politically ambitious elites actively sponsored democratizing reforms. [...] Ironically, as the elites gained victories over their enemies by sponsoring democratic reforms, there were fewer and fewer institutions that they could control directly." Similarly, M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 179-80, writes that "Ephialtes' reforms had the effect of establishing the sovereignty of the people in political affairs, but that does not mean this was their intent. His primary purpose may well have been to outflank those who had been most effective in supporting Cimon's nowdiscredited policy of "giving a higher priority to the interests of Sparta than to the expansion of his own country." Ober's comment is especially interesting, in that it suggests that the elites were engaged in something like a Prisoner's Dilemma, in which they all lost power by trying to outdo each other in appealing to the people.

A Case Study of Transitional Justice 227

226 Jon Elster writes, "Pericles' intelligence and psychological and political insight prevented unreason from dominating policy".9 One cannot, however, judge the robustness of institutions by looking at the outcomes they generate under good leadership: enlightened statesmen will not always be at the helm. The next generation of leaders, of lesser stature or lesser prudence, showed the vulnerability of the institutions. Although the system contained some safeguards,10 these were least effective in the supremely important realm of military decisions. 3.

The First Oligarchy and Its Demise

Athens had strong expansionist and imperialist traditions. At its height around 460, the Athens-led Delian League comprised nearly two hundred member states in the Eastern Mediterranean. The idea of empire appealed both to the Athenians' desire for glory and to their desire for tribute. Yet when decisions to go to war were taken by the popular assembly, they were not always wise. In particular, the disastrous Sicilian expedition of 415 was undertaken on a wave of popular enthusiasm, against the more realistic assessment of Nicias. Summarizing Thucydides, Ostwald writes that Nicias himself recognizes that the sobriety and circumspection of his seasoned military expertise have little chance of stemming the irrational enthusiasm of the Assembly (6.9.3). Even before Alcibiades had opened his mouth, lust for adventure had made the commons deaf to Nicias' warnings: a Sicilian expedition would only swell the number of already existing enemies (6.10); even if the expedition succeeded, it would be difficult to control a large population from a great distance, and if it failed in any way, the Sicilians would join the Spartans, eager to recoup their lost prestige, in attacking Athens itself (6.11) and what strength had been recovered after the recent plague should not be dissipated on alien ventures (6.12).'' The effect of the disaster was "the rise of oligarchical opposition, putting all the blame on the leaders who had persuaded the people and on the people themselves for being cozened by them".12 In the summer of 411, the oligarchs staged a coup and terrorized the assembly into abdicating its powers to them. Organized as the Council of the Four Hundred, they stayed in power for four months only, as their alliance with Persia on which they had counted fell through and the naval troops at Samos turned against them. The restoration of democracy, including transitional justice, took place in two steps. The first (or "intermediate") successor regime, which lasted for about eight months, was a limited democracy, characterized by limiting franchise to the Five Thousand, "of which body all who furnished a suit of armor were to be members".13 The regime immediately engaged in what Ostwald calls "a relentless prosecution of extremist

9 10

11 12 13

Ibid., 200. These safeguards included notably the use of delegation of decision-making to smaller bodies and delays (M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 78f; M.H. Hansen, The Athenian Democracy in the Age of Demosthenes, 307). See, however, F. Ruze\ Deliberation et pouvoir dans la cite grecque de Nestor ä Socrate, Ch.XXII, for important reservations to the idea that the role of the Council in preparing proposals for the Assembly served as a delaying device. M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 318. M.H. Hansen, The Athenian Democracy in the Age of Demosthenes,40. Thucydides, The Peloponnesian War, 8.97.1. This measure, and the abolition of pay for public office, were voted by the people as a whole.

oligarchs"14. Three of them were tried and two of them executed for treason, because they went on an embassy to Sparta after news of the revolt of the troops at Samos had reached Athens. Some avoided trial by going into exile, only to return in 403 to become members of the Thirty Tyrants. After the restoration of the full democracy, "vindictive measures against those who had been associated with the Four Hundred widened in scope".15 Soldiers who had stayed in the city during the regime of the Four Hundred suffered partial loss of their political rights.16 Three democrats are cited as exploiting the retributive apparatus for private gain.17 An oligarch who had already been tried and convicted under the intermediary regime was retried under a more serious charge. Yet three indicators show that the measures were not simply victors' justice. First, as Ostwald adds, "it was a prosecution not a persecution: we hear of no lynchings or terrorism but only of orderly legal proceedings initiated soon after the new regime had been established". Second, many who served on the Council of the Four Hundred to the very end were tried and acquitted. Third, the restored democracy resisted the temptation of retroactive legislation. Because there was no law against attempts to overthrow the democracy, the three oligarchs had to be prosecuted for treason; others presumably were not prosecuted at all. Although the new regime enacted a law against such attempts, the legislation was prospective, not retroactive. It was intended to deter "oligarchical recidivism", not to punish members of the oligarchy that had just been overthrown.18 4.

The Second Oligarchy and Its Demise

The next oligarchic regime owes its origin to an event that both discredited the democracy and made it vulnerable to external threats. After a great victory in a sea battle against the Spartan fleet off the Arginusae islands in 406, the Athenians tried eight of their generals for failure to rescue the surviving sailors (or perhaps for a failure to recover the bodies of the dead). The proceedings, which may have involved breaches of legality,19 led to the condemnation of all the generals and the immediate execution of the six who were present in Athens. The charged emotional atmosphere that made this outcome possible is captured in Xenophon's description of what happened when a member of the Council, Callixenus, proposed to vote over the guilt of the generals without a proper trial: Euryptolemus [...] and some others served a summons upon Callixenus, alleging that he had made an unconstitutional proposal. And some of the people applauded this act, but the greater number cried out that it was monstrous if the people were to be prevented from doing whatever they wished. Indeed, when Lyciscus thereupon moved that these men should also be judged by the very same vote as the generals, unless they withdrew 14 15 16 17 18

19

M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 401. Ibid., 420. Andocides, "On the Mysteries", 75f. Lysias, "Defence against a charge of subverting the democracy", 26. Ibid., 418. In his account of why the "intermediary regime" tried three oligarchs for treason but not for their "revolutionary activities", M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 402, cites the fact that "their accusers had themselves been active in establishing the Four Hundred and had been members of the Council but had turned against the extremists and were now leaders of the new regime". After the restoration of the full democracy, this self-serving reason was presumably less important in the explanation of democratic self-restraint. For opposing views on this important point, see M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 439-41 and D. MacDowell, The Law in Classical Athens, 178f.

228 Jon Elster A Case Study of Transitional Justice the summons, the mob broke out again with shouts of approval, and they were compelled to withdraw the summons. Furthermore, when some of the Prytanes [the executive committee of the Council] refused to put the question to the vote in violation of the law, Callixenus again mounted the platform and urged the same charge against them; and the crowd cried out to summon to court those who refused. Then the Prytanes, stricken with fear, agreed to put the question - all of them, except Socrates, [who] said that in no case would he act except in accordance with the law.20

The phrase that I have italicized is commonly taken as the most extreme expression of unconstrained popular sovereignty in Athens. There is a special irony in that one of the executed generals, Thrasyllus, had been a key actor in restoring the democracy in 411. Although later "the Athenians regretted their action and voted that charges be brought against those who had deceived the people, Callixenus among them"21, this could not undo the harm. The harm, it seems, was twofold. First, it rekindled divisions among the citizens and strengthened those who distrusted the democrats. Second, in choosing new generals to replace those who had been executed, the Athenians favored loyalty to the democracy over military competence. In itself, this would not have mattered had the Athenians accepted a peace offer from Sparta after the defeat at Arginusae. According to Aristotle, the Assembly rejected the offer because it was deceived by Cleophon, whom he depicts as a notorious demagogue.22 Whether the Assembly acted emotionally or took a calculated gamble based on distrust of Sparta,23 the outcome was disastrous. Led by less-than-outstanding generals, the Athenians suffered a devastating defeat in the battle of Aegospotami in 405, which marked the end of the Athenian empire. In the wake of the defeat, a second oligarchy was installed in 404 under Spartan auspices. The reasons why the Spartans preferred to install an autonomous oligarchic regime rather than a puppet government remain conjectural.24 The peace treaty included provisions for the return of the oligarchs who had gone into exile after the collapse of the previous oligarchy, and a vague clause allowing Athens to retain its "ancestral constitution", a phrase susceptible of several interpretations. In practice, the regime installed by the Thirty Tyrants, as the new oligarchic leaders came to be called, was one of terror. Among other things, they required each of their members to prove his mettle by killing one metic (alien resident). Also, more than 1,500 citizens were killed. One motive for the atrocities may have been revenge: the leading oligarch Critias "showed himself eager to put many to death, because [...] he had been banished by the democracy"25 after the demise of the previous oligarchy. For some of the oligarchs, the ultimate goal may have been to remake Athens on the austere model of Sparta.26 To consolidate their rule the Thirty created a privileged body of Three Thousand, as they came to be called, and expelled the rest of the citizens from the city. The expelled took up residence in Piraeus, the main port of Athens. Ultimately, with the assistance of an exile democratic army, they routed the oligarchs in battle and killed two of their main leaders. The Spartan leaders once more pulled their punches and supervised a treaty of reconciliation between "the men in the city" and "the men in Piraeus". According to Aristotle, the terms of the reconciliation were as follows: 20 21 22 23 24 25 26

Xenophon, Hellenica, I.vii. Ibid. The Constitution of Athens, xxxiv.l; see also xxviii.3. For the latter view, see D. Kagan, The Fall of the Athenian Empire, 378f. D. Kagan, The Fall of the Athenian Empire, 405-10. Xenophon, Hellenica, Il.iii. M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 485-87.

229

Those of the Athenians who had remained in the city and wished to leave should live in Eleusis, where they should retain full citizen rights, have complete self-government and enjoy their incomes. The temple was to be common to both sides. [...] Those living at Eleusis were not allowed to visit the city of Athens, nor were those living in Athens allowed to visit Eleusis, with the exception for both sides at the celebration of the Mysteries. The people at Eleusis were to contribute to a defence fund from their revenues like the other Athenians. If any of those leaving the city took over a house at Eleusis, they were to do it with the agreement of the owner; if agreement proved impossible, each was to select three assessors, and the owner was to accept the price they fixed. Any inhabitants of Eleusis acceptable to the new settlers were to live with them there. Those wishing to move out to Eleusis had to register within ten days of the swearing of the reconciliation oaths if they were in the city at the time, and move out within twenty; those abroad had the same periods from the moments when they returned to Athens. Nobody living at Eleusis could hold any office in the city of Athens until he had been registered as having moved his residence back to the city. Homicide trials in cases where someone had killed or wounded a person with his own hands were to be conducted in accordance with traditional practice. There was to be a total amnesty covering everyone except the Thirty, the Ten, the Eleven and the governors of the Piraeus; even they were to be immune from prosecution once they had rendered their accounts. [...] Those who had held office in the city were to appear before citizens with taxable property. On this basis those who wished to leave could leave the city. Each side was to repay separately the money which it had borrowed for the war.27

The terms of the agreement need some comments. Both sides had to swear an oath to the effect that they would "harbor no grievance" against anyone except for one specific act and four specific groups. Prosecution for murder was possible when the accused had killed "with his own hands" (autocheiria). "The means which the Thirty had employed to eliminate their opposition, however, made it difficult for potential plaintiffs to demonstrate autocheiria in its strictest sense. Few victims of the oligarchy were murdered outright; more often they were deposed by an informer on a spurious charge, arrested, convicted before the oligarchic Council (unless a trial were dispensed with altogether) and compelled to drink hemlock."28 The four groups excluded from the amnesty are the Thirty Tyrants, the Ten who succeeded them in a brief transitional stage before the restoration of democracy, the Eleven who were responsible for executing the orders of the Thirty, and the governors of Piraeus who administered the port on behalf of the oligarchy. The reference to "rendering accounts" is to the ex post scrutiny to which all officials were subject. Normally, the scrutiny was carried out by a popular jury chosen by lot among all citizens or even by the assembly as a whole. In this exceptional case, the requirement of scrutiny by citizens with taxable property ensured that nobody from the lowest property group (thetes) would sit in judgment of the oligarchs and that former members of the Three Thousand would be well represented on the juries.29 It is relevant to mention here that the normal ex-post scrutiny was widely seen as a manifestation of untrammelled democracy, capable of leading to "excesses, injustice and plain inefficiency"30 as when generals were liable to being punished for defeats that might be due simply to bad luck.31 Hence stacking the juries in favor of the oligarchs 27 28

29 30 31

The Constitution of Athens, xxxix. T. Loening The Reconciliation Agreement of 403/402 B.C., 83. The example of Polemarchos discussed below indicates that the demand for each member of the Thirty to kill one metic did not imply that they had to do it by their own hands. M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 499. Ibid., 78. See for instance D. Kagan, The Peace ofNicias and the Sicilian Expedition, 318-20.

230 Jon Elster may have been proposed or accepted by the democrats to signal their intention to retreat from extreme forms of popular rule. The clause may of course also have been proposed or imposed by the Spartans to protect their former allies.32 Other evidence that I shall cite shortly suggests that the returning democrats were indeed willing to limit retribution for the sake of civil peace. Although Aristotle does not mention the fate of property confiscated by the oligarchs, other texts show that this issue was also covered by the treaty. In the summary of Thomas Loening {The Reconciliation Agreement of 403/402 B.C. in Athens, 51-52) Individuals who had purchased confiscated goods will retain possession of them, and any property which had not been auctioned off will revert to the original owner. [...] This provision only involves movable property. Presumably, the original owner would have to establish undisputed title to these unsold goods before regaining possession of them. Acceptance of the reconciliation agreement meant a renunciation of all legal claims to movables confiscated and sold by the oligarchy. There may have been a provision whereby the exiles could repurchase their goods for the amount of money paid by the buyer, provided that he were willing to sell. Such a clause would prevent profiteering on the part of persons who had bought confiscated property cheaply and who then later attempted to sell it back to the original owner at an inflated price. There would be no obligation to resell, unless the buyer wanted to do so. [...] Not all confiscated property remained in the hands of the purchasers. The reconciliation treaty ordains that immovable property, such as land and houses, will be returned to their former owners [...] on the condition that they paid.33 The most significant provision is the distinction between the confiscated goods that had been sold to private citizens and those that remained in the hands of the state. With regard to the former, which might legitimately be claimed by both the old and the new owners, the treaty settled in favor of the new owners. While the new owners were not necessarily oligarchs, they certainly had profited from the oligarchy, yet their gains were not canceled. Here, too, we can see evidence of a willingness to compromise on the part of the returning democrats. The main architects in restoring the democracy were Thrasybulus and Archinos. Thrasybulus, who had led the democrats in exile, was concerned with rewarding those who had struggled on their side. Consequently he proposed "to give citizenship to all who had had a part in the return from Piraeus although some were manifestly slaves". 34 Archinos was concerned, however, that this might change the balance of power in the city too much in favor of the democrats. When the proposal was passed by the Assembly, he had it annulled through a graphe paranomon, a device by which the Athenians could reconsider their own past decisions. Aristotle, who praises this move by Archinos, also cites approvingly two other actions, both of questionable legality, that he undertook to cement the reconciliation. First, he arbitrarily lowered the deadline for registration for emigration to Eleusis, this compelling oligarchs to stay in the city "against their will".35 Aristotle refers to this as a "sound move", perhaps because he thought the balance of forces would be as upset by oligarchs leaving the city as it would be by giving voting rights to returning slaves. 32

33 34 35

I disagree, therefore, with T. Loening, The Reconciliation Agreement of 403/402 B.C. in Athens, 49 when he argues for a different reading of Aristotle's text, on the grounds that "In all likelihood the exiles would not concede such an important advantage which would probably result in the exoneration of many of the oligarchs". The last clause ("on the condition that they paid") is somewhat conjectural. Aristotle, The Constitution of Athens, xxxx.2. Ibid., xxxx.l.

A Case Study of Transitional Justice 231 When one of the returned exiles began to violate the amnesty, Archinus haled him to the Council and persuaded them to execute him without a trial, telling them now they would have to show whether they wished to preserve the democracy and abide by the oaths they had taken; for if they let this man escape they would encourage others to imitate him, while if they executed him they would make an example for all to learn by. And this was exactly what happened; for after this man was put to death no one ever again broke the amnesty.36 An editor of the text comments that Archinos' "action in attacking someone for violating the amnesty was indeed right, for the only way of reestablishing the state after such a traumatic period was for the Athenians to turn their backs on the past, but it is legitimate to ask whether an illegal execution was the best way of reestablishing the rule of law". 37 In turning their backs on the past, the Athenians resorted to the methods of the past - but they only had to do it once. Although the amnesty did not altogether eliminate lawsuits related to behavior during the oligarchy 38 , these were isolated events. A fourth restraining measure initiated by Archinos, not mentioned by Aristotle, was the enactment of the procedure of paragraphe, perhaps best translated as "counteraccusation". It is described in a passage from Isocratcs that is worth citing at some length: Now after your return to the city from Piraeus, you saw that some of the citizens were bent upon bringing malicious prosecutions and were attempting to violate the Amnesty; so, wishing to restrain these persons and to show to others that you had not made these agreements under compulsion, but because you thought them of advantage to the city, you enacted a law, on the motion of Archinos, to the effect that, if any person should commence a lawsuit in violation of the oaths, the defendant should have the power to bring a paragraphe; the magistrates should first submit this question to the tribunal, and that the defendant who had entered the plea should speak first; and further, that the loser should pay a penalty of one-sixth of the sum at stake. The purpose of the penalty was this - that persons who had the effrontery to rake up old grudges should not only be convicted of perjury but also, not awaiting the vengeance of the gods,, should suffer immediate punishment.39 The new procedure thus had a double purpose. The immediate aim was to deter attemps to bring suit in violation of the amnesty. The broader end was to show that the reconciliation agreement treaty not been imposed by the oligarchs or their Spartan allies, but freely chosen by the democrats in order to promote the good of the city. This may be a false dilemma, however. A moderate course may have been the first preference of all parties, and the Spartans might have used their power to impose it had the democrats opposed it. The moderation displayed by the victorious democrats was quite remarkable.40 In Thucydides, for instance, we find numerous accounts of the horrors of civil war that might have led us to expect a far worse outcome. The willingness to show clemency

36 37 38 39 40

Ibid., xxxx.2. J.M. Moore, Aristotle and Xenophon on Democracy and Obligarchy, 272. T. Loening, The Reconciliation Agreement of 403/402 B.C. in Athens, ch. iii has a full account of the cases that arose. Isocrates, "Against Kallimachos", 2f. In his catalogue raisonne' of violent episodes in classical Greece, A. Bernard, Guerre et violence dans la Grece antique, does not note the lack of vindictiveness following the demise of the oligarchy in 403. The contrast he draws (423f) between the vindictiveness of pre-Christian societies and the charitableness of Christianity leaves no rcom for simple prudence. One can abstain from revenge rnerely because one perceives that it will be counterproductive, which arguably is what the Athenians did in 403.

232 Jon Elster

went hand in hand with constitutional reform intended to remove the root causes of oligarchic discontent. A key provision stated that "The magistrates shall under no circumstances whatever employ a law that is not part of the written code. No decree of either Council or Assembly shall have higher authority than a law. No law shall be directed against an individual without applying to all citizens alike, unless an Assembly of six thousand so resolve by secret ballot."41 Also, legislation was removed from the Assembly and delegated to a smaller group of nomothetai. In Ostwald's words, 'The procedures are democratic, since they mandate repeated discussions in the Assembly before a new law can be validated, but they represent a restriction on popular sovereignty because the validation does not come from the Assembly but from a broadly based group of nomothetai."A2 Even that smaller group was subject to constraints. If the Assembly, in its annual review of all legislation, found that a set of laws was unsatisfactory, it had to elect five men to speak in the defense of those laws before the matter could go forward to the nomothetai. These long-term measures, which impose procedural constraints on popular rule,43 complement the short-term measures that were taken to alleviate the enmity between oligarchs and democrats. The reconciliation treaty brought about amnesty, but neither oblivion nor silence. Although there are examples of "gag rules" that take certain matters off the table to protect social peace,44 the amnesty decree of 403 is not among them. The clause that the Athenians should abstain from harboring grievances did not, as is sometimes asserted,45 impose a total ban on referring to past strives. It provided immunity for prosecution, but did not exclude that a person's behavior under the oligarchy could be relevant for his suitability to hold public office. Membership of the Council in this period seems to have been viewed as more aggravating than simply belonging to the Three Thousand, although less serious than being one of the Thirty. Nor was the amnesty violated by the decrease in pay for the cavalry, who had largely supported the oligarchy, and an increase in pay for the mounted archers, who were more likely to have opposed it.46 The cavalry could also be punished by other means. When asked to send troops to Persia, "the Athenians sent some of those who had served as cavalrymen in the time of the Thirty, thinking it would be a gain to the democracy if they should live in foreign lands and perish there.47 5.

Lysias

To explore some of these issues, and to view other aspects of the amnesty though the eyes of a contemporary, I shall consider some speeches of Lysias (ca. 458-380). As a resident alien in Athens, he belonged to a group targeted for persecution by the Thirty Tyrants. His brother Polemarchos was put to death by the tyrants, and Lysias himself 41 42 43

44 45 46 47

Andocides, "On the Mysteries", 87. M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 522. D. MacDowell, The Law in Classical Athens, 74 states that "after the turmoil of 403 the Athenians [...] wanted to make it difficult for themselves to introduce changes in the laws". M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, similarly writes that the reforms "show that law was to be supreme in the new democracy add that the demos could no longer regard whatever it pleased as valid and binding". S. Holmes, "Gag Rules or the Politics of Omission". E.g. by N. Loraux, La cite divisee. T. Loening, The Reconciliation Agreement of 403/402 B.C. in Athens, 119. Xenophon, Hellenica, III. 1.4.

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had a narrow escape. In (among others) three speeches delivered between 403 and 399, Lysias discusses moral issues concerning the oligarchs, their supporters, the beneficiaries of their rule, as well as those who chose to remain neutral. In one speech he is personally accusing one of those responsible for the murder of his brother. In another, he writes as a hired pen for a citizen defending himself against the accusation that his behavior during the oligarchy makes him ineligible for public office. In the third, Lysias is himself penning such accusations. The speech "Against Eratosthenes", one of the Thirty, was probably given at the scrutiny of the latter after the fall of the oligarchy. As noted earlier, the jury is likely to have been stacked in his favor, whence certain constraints on the rhetorical strategies Lysias can deploy. Lysias begins by stating that the Thirty moved against resident aliens alleging that they were hostile to the administration: Therefore they had an excellent pretext for appearing to punish while in reality making money; in any case, the State was impoverished and the government needed funds. They had no difficulty in persuading their hearers, for those men thought nothing of putting people to death, but a great deal of getting money. So they resolved to seize ten, of whom two should be poor men, that they might face the rest with the excuse that the thing had not been done for the sake of money (6-7).48 Lysias then states that Eratosthenes had arrested Polemarchos in the street and taken him to prison, where he received the order to drink hemlock: "my brother, as I said before, was put to death by Eratosthenes, who was neither suffering under any private wring himself, nor found him offending against the State, but eagerly sought to gratify his own lawless passions" (23-24).49 Against a possible defense by Eratosthenes that he was acting out of fear and just following orders (25), Lysias responds by asking "whom, in fact, will you ever punish, if the Thirty are to be allowed to state that they merely carried out the orders of the Thirty?" (29-30). Towards the end of his speech, Lysias joins together the "men of the city" and the "men of the Piraeus" as victims (92), saying that he wants to recall the events of that period so that both groups will remember their grievances against the Thirty and their common desire for revenge. He says to the men of the city that "You were so oppressed by the rule of these men that you were compelled to wage war against your brothers, your sons and your fellow-citizens" (92). The purpose of the argument is clearly to make the men of the city, who were overrepresented in the jury, think of themselves as co-vic48

49

The passage raises an intriguing question: exactly whom were the Thirty trying to fool? In including two poor individuals the Thirty showed that they were subject to what I have called the "imperfection constraint" in the process of misrepresenting one's preferences (J. Elster, Alchemies of the Mind, 375-80). If the stated aim of an action (persecuting resident aliens for their political views) coincides too well with the agent's self-interest (confiscating their wealth), the claim to being politically motivated lacks credibility. To create an appearance of political motivation, the Thirty would either have to abstain from prosecuting some wealthy individuals or prosecuted some poor ones; the latter strategy is the one Lysias mentions. Yet at the time when the Thirty published a list with the names of the Three Thousand, they decreed "that none of the Three Thousand could be put to death without a verdict of the Council but that the Thirty had the right to put to death anyone not on that list" (M. Ostwald, From Popular Sovereignty to the Sovereignty of Law, 486). Since that decree was probably given before the measures against the resident aliens (ibid., 487), it is hard to see whom they needed to "persuade". Note that Lysias here suggests an alternative way in which Eratosthenes could have sought to misrepresent his motives, by claiming to act for personal revenge rather than for gain. In J. Elster, Alchemies of the Mind, 213, I argue that for the Athenians, acting for revenge, although an inferior motivation to acting for the good of the state, was superior to that of acting out of self-interest.

234

Jon Elster

tims with the exiled democrats rather than as co-perpetrators with the Thirty.50 Whereas it would be absurd for Eratosthenes, a member of the Thirty, to claim to have acted under coercion by the Thirty, that excuse is available to their supporters. Yet with the end of the oligarchy the excuse is no longer valid: "if you condemn this man, you will declare your indignation at the things that have been done; but if you acquit him, you will be recognized as aspirants to the same conduct as [the Thirty], since today nobody is compelling you to vote against your judgment" (90-91). In an earlier passage, presumably addressed to the exiled democrats in the jury, Lysias had told the jury that anyone who was ill-disposed towards your people lost nothing by holding his peace; for there were other men to speak and do things of the utmost possible detriment to the city. As for the men who say they are well-disposed, how is it that they did not show it at the moment, by speaking themselves to the most salutary purpose and deterring those who were bent on mischief? (49)

In the first part of this passage Lysias argues that inaction or passivity is consistent with malign motives; in the second, that benign motives are inconsistent with passivity. This resonates with Solon's ban on neutrality during civic strife, but contrasts oddly with a speech from about 399, "Defence against a charge of subverting the democracy", written for an (anonymous or hypothetical) candidate for public office. The main thrust of the speech is to show that since this speaker was not an active supporter of the Thirty, but "behaved as the best citizen in the Piraeus would have done, if he had remained in the city" (2), there can be no objection to his holding office. The speaker begins by stating a theory of political motivation: "no human being is naturally either an oligarch or a democrat: whatever constitution a man finds advantageous to himself, he is eager to see that one established" (8). He goes on to claim that some leaders of the Four Hundred later were found among the men in Piraeus, while some who had helped in the expulsion of the Four Hundred appeared among the Thirty: "There is thus no difficulty concluding that the questions dividing men are concerned, not with politics, but with their personal advantage" (9-10).51 He then, inconsistently, claims that because he chose not to hold office under the Four Hundred or under the Thirty, he deserves to be honored by the jurors. As a next line of defense, he argues that "if everyone had been of one mind with me, not one of you would have experience of a single misfortune" (15).52 In a remarkable series of arguments the speaker then goes on to develop three important topoi. The first, like the argument just mentioned, is a defense of the passive bystander: 50 51

52

D. Cohen, "The Rhetoric of Justice and Reconciliation Strategies in the Restoration of Athenian Democracy in 403 B.C", emphasizes this aspect of much of the post-403 rhetoric. The speaker applies the theory to himself: after citing his many largesses to the city, he adds that "my purpose in spending more than was enjoined upon me by the city was to raise myself the higher in your opinion, so that if any misfortune should chance to befall me I might defend myself on better terms" (12-13). This use of (something like) the categorical imperative to justify passivity in the face of violence might seem perverse presupposes that "everyone" is taken in the most inclusive sense. An analogy may be found in a novel by A. Lindgren, The Brothers Lionheart, which takes place in a mythical country governed by a cruel tyrant, to whom an underground opposition emerges. The leader of the opposition - one of the brothers of the title - refuses to use violent means to overthrow the tyrant. His frustrated followers ask him: "What if everyone acted like you?" To which he replies, "If everyone acted like me, there would be no problem, would there?", implicitly extending "everyone" from opponents of the regime to include its supporters as well.

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You would not be justified in hating those who have suffered nothing under the oligarchy, when you can indulge your wrath against those who have done your people mischief; or in regarding as enemies those who did not go into exile instead of those who expelled you, or those who were anxious to save their own property instead of those who stripped others of theirs, or those who stayed in the city with a view to their own safety instead of those who took part in the government for the purpose of destroying others. If you think it your duty to destroy the men whom they passed over, not one of the citizens will be left to us (18).

The second is an objection to indiscriminate persecution of indiscriminate persecutors: If the Thirty had kept their punishments for [those who had committed crimes under the previous democracy], you would have held them yourselves to be honest men: but when in fact you found them deliberately oppressing the people because of the offences of those persons, you were indignant; for you considered it monstrous that the crimes of the few should be spread over the whole city. It is not right therefore that you should resort to those offences which you saw them committing, or regard those deeds, which you deemed unjust when done to you, as just when you do them to others (19-20).

The third is a claim of a negative correlation between resistance and vindictiveness. The speaker claims that "in the Piraeus party, those who are in highest repute, who have run the highest risk, and who have rendered you the most services, had often before exhorted your people to abide by their oaths and covenants, since they held this to be the bulwark of democracy" (28). By contrast, "the men who give us good cause to wonder what they would have done if they had been allowed to join the Thirty are the men who now, in a democracy, imitate those rulers" (30) by their indiscriminate persecution. Those who took greater risks in fighting the oligarchs when they had power are less prone to persecute them when they have lost it. In the speech "Against Philon, on his scrutiny" Lysias states that he will "demonstrate that Philon [...] has set his private safety above the public danger of the city, and has held it preferable to pass his life without danger to himself rather than save the city by sharing her dangers with the rest of the citizens" (6-7). This behavior, which is presented as blameable in this speech as well as in "Against Eratosthenes", is presented as blameless in the "Defence against a charge of subverting the democracy". The discrepancy may be due to the fact that in the latter speech he is coming up with self-serving arguments for a client rather than expressing his own convictions.53 Alternatively, the speech may have been on behalf of a purely hypothetical client and thus more in the nature of a stylistic exercise.54 Philon's case was unlike that of the citizen whom Lysias defended against a charge of subverting the democracy. Whereas the latter remained in the city for the duration of the oligarchy, Philon was exiled and went abroad. Lysias reproaches him not only for his unpatriotic neutrality, when he preferred to stay at Oropus north of Athens for private

53

54

This seems to be the view of M. Nouhaud, L 'utilisation de I 'histoire par les orateurs attiques, 37076, who offers a detailed comparison between "Against Erastothenes" and "Defense against a charge of subverting the democracy". This view is suggested by K.J. Dover, Lysias and the Corpus Lysiacum, 188f, who argues that the lack of specific details in "Defense against a charge of subverting the democracy" suggests that it is "a hypothetical defence of a man against whom the charge is made at a dokimasia [ex ante scrutiny] that he remained in the city during the rule of the Thirty Tyrants". To Dover's argument one might perhaps add that the cynically blatant appeal to self-interest in that speech would render it ineffective in an actual trial (see n. 48 above).

236 Jon Elster gain rather than join the democrats at Piraeus, but also for "making a profit out of the disaster" (18) of the city. While not himself a wrongdoer, he was the beneficiary of wrongdoing when, traveling in the Athenian countryside from his base in Oropus, he met with the most elderly citizens [...] - men who were attached to the democracy but unable owing to their age to give it their support - he stripped them of their resources, thinking it more important to make his own petty gains than to spare them injury. It is not possible for all these to prosecute him today, from the very same cause that disabled them from supporting the city: yet this man ought not to benefit twice from their disability (18-19). Lysias goes on to anticipate and rebut a defense he expects Philon to offer: He argues, so I am told, that, if it was a crime to absent himself at that crisis, we should have had a law expressly dealing with it, as in the case of all other crimes. He does not expect you to perceive that the gravity of the crime was the reason why no law was proposed to deal with it. For what orator would ever have conceived, or lawgiver have anticipated, that any of the citizens would have been guilty of so grave an offence? (27) Although Solon exactly to that effect two centuries earlier, it seems to have fallen into oblivion. In the absence of a known law, Lysias then appeals to suprapositive or natural law: some actions are so intrinsically and self-evidently wrong that one cannot imagine that anyone would commit them. He then concludes by drawing attention to the contrast between the resident aliens who "supported the democracy beyond the requirements of their duty" and Philon who "betrayed the city in violation of his duty". Having bestowed honors on the former, how could the Athenians fail to impose "if not some heavier punishment of another kind [excluded by the amnesty], at least the dishonor which you hold over him today"? (29-30) Lysias makes it clear that the allocation of honor and dishonor is justified on strictly consequentialist grounds: "In either case the distinction has been made not so much for the sake of those who have come into the world, as of those who are yet to come, in order that they may strive to become worthy" (30). 6. Summary The Athenians faced problems and proposed solutions that are strikingly similar to those of recent transitions. They also encountered situations and offered solutions for which there are no contemporary parallels. To bring out the general features of the process I shall recast the above narrative in a more conceptual form. The transition in 411 took place by a combination of regime implosion and insurrection. In 403, there was a negotiated transition under the supervision of Sparta. The fact that there were two oligarchic episodes, each of them succeeded by the restoration of democracy, enabled the democrats to learn from experience and to focus on eliminating the root causes of the oligarchic temptation. In 411, the dominant aim of transitional justice was retribution. With regard to the executed oligarchs, incapacitation may also have been a motive since (Athens having no jails) they could not be rendered harmless by being imprisoned. In 403 the dominant aim was reconciliation, although retribution and deterrence may also have played a role. By offering an extensive amnesty for prosecution and the option of exile for those not covered by the amnesty, the reconciliation treaty embodied a moderate form of transitional justice.

A Case Study of Transitional Justice 237 The moderate procedures may been (i) imposed by Sparta, (ii) a condition stipulated by the oligarchs in exchange for giving up power, or (iii) freely chosen by the Athenian democrats. For all we know., moderation may have been the first preference of all three parties. The main cast of characters in transitional justice emerges clearly: wrongdoers, victims, resisters, neutrals, and beneficiaries from wrongdoing. The first two categories are the most important. Wrongdoers were to be sanctioned and victims to be compensated. After 403 a law was enacted to give citizenship to slaves who had fought the oligarchs, but later canceled. Other resisters may have received a pay increase as a reward for their efforts. What constituted wrongdoing is not clear. After 411, oligarchs were charged with treason and soldiers with having remained in Athens during the rule of the Four Hundred. After 403, the amnesty covered instigation to murder but not murder "with one's own hands". Membership of the cavalry or of the Council during the rule of the Thirty Tyrant might be held against a candidate for public office. The sanctions on wrongdoing (and benefiting from wrongdoing) included execution, the imposition of fines, ineligibility for a given public office, and loss of civil and political rights. The reconciliation treaty of 403 allowed the oligarchs the option of exile, which, even if chosen voluntarily, must be viewed as a sanction. Bypassing the amnesty, the Athenians also penalized military supporters of the oligarchy by reducing their pay and sending them on perilous expeditions. Transitional justice occurred through the actions of private individuals. These included prosecution, objections to a candidate before he took up a public office for which he had been chosen, and accusation of an official after the expiration of his term. Verdicts were usually given by large juries who voted by secret ballot after hearing speeches for the accusation and the defense. Although jurors were normally chosen at random among the citizens, after 403 the composition of the juries that conducted the ex post scrutiny was biased in favor of the oligarchs. We might call this "losers' justice". After 403, the victorious democrats also restrained themselves when they struck down the law that would have given Athenian citizenship to slaves who had fought on their side. By canceling the law, they presented a shift in the balance of power in the city away from the defeated oligarchs. Measures were also taken to reduce the outflow of oligarchs from the city. A further measure of moderation was the establishment of a procedure that made it more risky to bring suits that might violate the amnesty. Transitional justice seems was carried out in legal forms, at least in the sense that retroactive legislation was not used. Some abuses may have occurred after 411. Transitional justice was supplemented by legal reforms. After 411, the main aim was to provide negative incentives for would-be oligarchic coupmakers. After 403, the aim shifted to eliminating their positive incentives, by imposing constraints on the previously all-powerful citizen assembly. After 403, provisions were made for exiled democrats to recover confiscated property. Movable property (including slaves) that had been sold to private individuals remained in the hands of the latter. The speeches of Lysias offer important but not always consistent arguments about the conduct of transitional justice, (i) A member of the Thirty could not claim to have acted under coercion, (ii) Supporters of the Thirty may claim to have acted under coercion, (iii) Neutrality is not a ground for sanctioning, (iv) Neutrality is a ground for sanctioning (v) Benefiting from wrongdoing is a ground for sanctioning, (vi) Those who engage in relentless persecution of the oligarchs are imitating their methods, (vii) Those who were

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least vigorous in opposing the oligarchs during their reign are most likely to persecute them relentlessly afterwards, (viii) In the absence of a written law, one can appeal to unwritten suprapositive law.

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Claus Offe and Ulrike Poppe Bibliography Bernard, A., Guerre et violence dans la Grece antique, Hachette, 1999. Cohen, D., "The Rhetoric of Justice and Reconciliation Strategies in the Restoration of Athenian Democracy in 403 B.C.", Archives Europeennes de Sociologie 42 (2001). Dover, K.J., Lysias and the Corpus Lysiacum, University of California Press, 1968. Elster, J., Alchemies of the Mind, Cambridge University Press, 1999. Hansen, M.H., The Athenian Democracy in the Age of Demosthenes, Blackwell, 1991. Holmes, S., "Gag Rules or the Politics of Omission", Constitutionalism and Democracy, ed. J. Elster and R. Slagstad, Cambridge University Press, 1988. Kagan, D., The Peace of Nicias and the Sicilian Expedition, Cornell University Press 1981. ' Kagan, D., The Fall of the Athenian Empire, Cornell University Press, 1987. Lindgren, A., The Brothers Lionheart, Penguin Books, 1985. Loening, T., The Reconciliation Agreement of 403/402 B.C. in Athens (Hermes Einzelschritten, Heft 53), Franz Steiner Verlag, 1987. Loraux, N., La cite divisee. L'oubli dans la memoire d'Athenes, Payot, 1997. MacDowell, D., "Law-making at Athens in the Fourth Century B.C.", Journal of Hellenic Studies 95 (1975). MacDowell, D., The Law in Classical Athens, Cornell University Press 1978. Moore, J.M., Aristotle and Xenophon on Democracy and Oligarchy, University of California Press, 1975. Nouhaud, M., L'utilisation de l'histoire par les orateurs attiques, Les Belles Lettres 1982. Ober, J., Mass and Elite in Democratic Athens, Princeton University Press, 1989. Ostwald, M., From Popular Sovereignty to the Sovereignty of Law, University of California Press, 1986. Ruze, F., Deliberation etpouvoir dans la cite grecque de Nestor ä Socrate, Publications de la Sorbonne, 1997.

Contents 1.

State Socialism as Disaster or as Crime?

2.

Living in Untruth

3.

The Politics of Building Interpretive Frames

4.

The Adoption of a "Strong" Frame in Germany after 1989

5.

Acts and Actors

6.

Criminal Trials

7.

Administering Archives. The "Gauck Agency"

8.

Exploring the Past. The Commission of Inquiry

9.

Additional Policy Options

243 244 247 250 252 256 263 266 267

New political regimes are never built on a tabula rasa. Hence any new regime must establish some relationship to the actors and subjects of its predecessor regime. Also, it must establish reasons supporting the nature of this retrospective relationship. The retrospective relationship must be justifiable in terms of the new regime. While new authoritarian regimes may be able to repress and destroy the traces and memories of its predecessor regime, this option is precluded in new democracies. The latter must deal, in order to secure their viability and credibility of their principles in the future, with past injustices through means and procedures that are consistent with presently valid standards of justice, such as the rule of law and the equality before the law. This threefold temporal reference to the past, the present, and the future is constitutive of the problems of transition justice in new democracies. This chapter is about how this backward-looking practices evolved in unified Germany with regard to the past of the now defunct state of the GDR and the dominant actors of this state, as well as its victims. We deal here with "policies", i.e. initiatives taken and strategies chosen or sponsored by state actors (governments, the judiciary, governments, and special agencies constituted by law), not the numerous exclusively civic actions in which conflicts are carried out among family members, by social and political movements, within occupational groups, or the media. Policies of transition justice can focus upon perpetrators and on victims. They can also consist in formal legal procedures or the conditioning of discretionary moves taken by political actors. A matrix that is made up of these two dimensions can help to group the numerous policy options available in this field.

238 Jon Elster

least vigorous in opposing the oligarchs during their reign are most likely to persecute them relentlessly afterwards, (viii) In the absence of a written law, one can appeal to unwritten suprapositive law.

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Claus Offe and Ulrike Poppe Bibliography Bernard, A., Guerre et violence dans la Grece antique, Hachette, 1999. Cohen, D., "The Rhetoric of Justice and Reconciliation Strategies in the Restoration of Athenian Democracy in 403 B.C.", Archives Europeennes de Sociologie 42 (2001). Dover, K.J., Lysias and the Corpus Lysiacum, University of California Press, 1968. Elster, J., Alchemies of the Mind, Cambridge University Press, 1999. Hansen, M.H., The Athenian Democracy in the Age of Demosthenes, Blackwell, 1991. Holmes, S., "Gag Rules or the Politics of Omission", Constitutionalism and Democracy, ed. J. Elster and R. Slagstad, Cambridge University Press, 1988. Kagan, D., The Peace of Nicias and the Sicilian Expedition, Cornell University Press, 1981. Kagan, D., The Fall of the Athenian Empire, Cornell University Press, 1987. Lindgren, A., The Brothers Lionheart, Penguin Books, 1985. Loening, T., The Reconciliation Agreement of 403/402 B.C. in Athens (Hermes Einzelschritten, Heft 53), Franz Steiner Verlag, 1987. Loraux, N., La cite divisee. L'oubli dans la memoire d'Athenes, Payot, 1997. MacDowell, D., "Law-making at Athens in the Fourth Century B.C.", Journal of Hellenic Studies 95 {\915). MacDowell, D., The Law in Classical Athens, Cornell University Press 1978. Moore, J.M., Aristotle and Xenophon on Democracy and Oligarchy, University of California Press, 1975. Nouhaud, M., L'utilisation de l'histoire par les orateurs attiques, Les Belles Lettres, 1982. Ober, J., Mass and Elite in Democratic Athens, Princeton University Press, 1989. Ostwald, M., From Popular Sovereignty to the Sovereignty of Law, University of California Press, 1986. Ruze, F., Deliberation et pouvoir dans la cite grecque de Nestor ä Socrate, Publications de la Sorbonne, 1997.

Contents 1.

State Socialism as Disaster or as Crime?

2.

Living in Untruth

3.

The Politics of Building Interpretive Frames

4.

The Adoption of a "Strong" Frame in Germany after 1989

5.

Acts and Actors

6.

Criminal Trials

7.

Administering Archives. The "Gauck Agency"

8.

Exploring the Past. The Commission of Inquiry

9.

Additional Policy Options

243 244 247 250 252 256 263 266 267

New political regimes are never built on a tabula rasa. Hence any new regime must establish some relationship to the actors and subjects of its predecessor regime. Also, it must establish reasons supporting the nature of this retrospective relationship. The retrospective relationship must be justifiable in terms of the new regime. While new authoritarian regimes may be able to repress and destroy the traces and memories of its predecessor regime, this option is precluded in new democracies. The latter must deal, in order to secure their viability and credibility of their principles in the future, with past injustices through means and procedures that are consistent with presently valid standards of justice, such as the rule of law and the equality before the law. This threefold temporal reference to the past, the present, and the future is constitutive of the problems of transition justice in new democracies. This chapter is about how this backward-looking practices evolved in unified Germany with regard to the past of the now defunct state of the GDR and the dominant actors of this state, as well as its victims. We deal here with "policies", i.e. initiatives taken and strategies chosen or sponsored by state actors (governments, the judiciary, governments, and special agencies constituted by law), not the numerous exclusively civic actions in which conflicts are carried out among family members, by social and political movements, within occupational groups, or the media. Policies of transition justice can focus upon perpetrators and on victims. They can also consist in formal legal procedures or the conditioning of discretionary moves taken by political actors. A matrix that is made up of these two dimensions can help to group the numerous policy options available in this field.

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Claus Offe and Ulrike Poppe

legal sanctions

perpetrators

victims

criminal punishment

restitution/compensation 2

1 political sanctions

3 disqualification from public sector empl.

4 "recognition"

Figure 1: Types of responses to past injustices

Box 1 represents all those cases where criminal law procedures are applied to perpetrators. The rules and decisions governing this field of activities include those governing the resources spent on investigation; decisions concerning the statutes of limitation and the time frame of prosecution; kinds of actors and acts that are to be prosecuted; and rules concerning amnesty and dismissal from prison. Box 2 concerns victims and the legal entitlements they are endowed with regarding restitution of property, compensation of suffering and incarceration. Note that the satisfaction of seeing former oppressors formally punished can be an externality of box 1 activities that belongs here. Box 3 contains all practices by which state policies shape and condition the fates of alleged perpetrators within civil society without directly ordering specific outcomes. For instance, perpetrators are banned from public sector employment or must pass special screening before being eligible for public office. Such information can be issued publicly or conveyed to specific target recipients, with some probability implied (and intended) of the persons in question becoming targets of civic and political disqualification. The sanctions following upon such exposition remain largely (except, within limits, for the sector of state employment itself, as in the case of lustration) a matter of how friends, customers, employers, relatives, local communities, the media etc. respond to what has been made public or specifically conveyed to them about particular acts and actors. This type of sanctioning can be termed "civil disqualification". Other policies belonging in this category include the state sponsored establishment of documentation centers, exhibitions, research activities, investigative commissions, and the like. Finally, box 4 contains the role assigned by policy makers to victims' associations, state-sponsored confrontations, encounters and exchanges between former perpetrators and their victims, and claims against perpetrators granted victims by the state. The typical goal (and not just the side-effect, as in box 1) of policies belonging here is to offer recognition to victims of the old regime and to help them to develop a sense of trust and belonging to the newly constituted political community. We concentrate here on state-sponsored activities focusing on agents of the old regime, i.e., on phenomena belonging to boxes 1 and 3. The practices thus categorized are intended to deal with the morally, legally, economically and politically relevant residues of the old regime and the persons who made up that regime. These practices of coping

241

or coming to terms with recent history have a history of their own. We proceed as follows. First, we follow the main nodes, or branching points, in the history of dealing with the past of the GDR and its relevant residues. The question is: What choice of policies was adopted in these fields? These policies include those initiated by the pre-unification regime in the GDR that began to form after the manifest breakdown of the old regime with the fall of the wall (November 9, 1989) and ended with unification on October 3, 1990. They also include those policies and legislation initiated after unification by German authorities. Second, we intend to look at the causal mechanisms that can be held responsible for choices being made in one particular way, rather than other ways that were known to be available and often have actually been pursued in other places or at other times. For instance, we need to explain the fact that at a very early stage of the process a decision was made that the SED, the former monopolistic Communist party of the GDR, was allowed to transform itself (while keeping most of its vast assets) into the post-Communist "Party of Democratic Socialism" (PDS). For identifiable reasons, it was not treated after 1989 as the Nazi party was after 1945, namely prohibited. We thus try to give a synthetic account of both the course of major events and outcomes as well as the premises, actors, principles, constraints, interests, power positions, and coalitions that made the sequence of decisions and events happen the way it actually did. Third, we offer some thoughts, speculations and generalizations concerning the retrospective evaluation of the policies that were actually adopted. Have they lived up to expectations and hopes originally associated with them? And if so, to what extent and with what kind of side effects? Any course of action that is being taken is a selection made from a space that contains a myriad of other possibilities that have been rejected, explicitly or implicitly. What explains why the options actually chosen were chosen, and its alternatives rejected? And what reasons do actors give for opting for one possibility rather than its altemative(s)? Concerning box 1 of the above matrix alone, the space of available possibilities can be visualized by a decision tree as (partially) represented in Figure 2. The number of nodes and the specification of alternatives represented in Figure 2 serves just the purpose of illustration. Note, however, that the hierarchical presentation can be somewhat deceptive. For example, the suggestion is that node 5 could only be dealt with subsequent to node 2. To the contrary, the decision taken at node 2 may well be taken in anticipation of the choice that actors intend to make, or perceive to be easily available and preferable, at point 5. So the causal determination can be upwards as well as downwards. Also, causal determination may significantly deviate from the reasons and justifications given by actors or perceived and accepted by mass audiences. The first question that must be posed and answered after the breakdown of any old regime is that of activism vs. inaction concerning transition justice (node 1). To anticipate some of what we are going to elaborate below, the post-1989 German situation was strongly and singularly (if compared to the other simultaneous transitions from state socialism) shaped by an activist orientation. Not only were German elites and mass publics convinced that "something must be done", particularly as there is an acute memory and ongoing debate on what has been done, and arguably done wrongly, after the breakdown of Nazi Germany in 1945. In the context of unification, there was also a virtually unique scarcity of reasonable concerns and arguments why one should better refrain from doing what might be done (node 8). To wit, old elites at whom that activism was directed enjoyed less bargaining power to protect themselves than they did anywhere else. Neither credible threats of revenge nor the threat of withholding needed cooperation with the successor regime were available to them, as the control over the

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Figure 2: A partial decision tree concerning wrongdoing under the old regime

i

node 1: "benign neglect", "drawing a thick line" vs. TJ activism? if "activism":

node 2: was old regime "systemic disaster" or result of "agents"? if "agents":

node 3: external agents or internal agents (in time and space)? if internal:

node 4: "many or all of us" vs. "just a few"? if "just a few":

243

entire process was firmly in the hands of the West German political elite and its constituency that made up roughly 80 per cent of the population of unified Germany. On the other hand, West German elites saw the need to reach out for the former opposition movements in the East whose spokespersons were calling for an activist approach to transition justice. Nor did the Soviet Union see any reason to deploy its (considerable) bargaining power in the "two-plus-four-negotiations" of spring and summer 1990 on behalf of the interest of its former comrades in the leadership and state apparatus of the GDR. Also, transitional justice activism was suggested not only by the lofty consideration that it was needed in order to overcome the old regime and to build a solid foundation for the future of the new democracy. It was also motivated by present interests in the politics of history. In a nutshell, conservative political forces saw a splendid opportunity to whitewash some of the dubious features of the post-1945 transition. In a nutshell, whoever had criticized the practices and outcomes of that episode should be assured that "this time we are ready to do it right", and do it, at that, on the basis of a uniquely rich source of data, a unique wealth of which had been accumulated by the old regime and made easily and widely accessible by the new one. Finally, what allowed for an activist approach being adopted was the fact that, in contrast to 1945, the crimes of the old regime were clearly not of the abysmal scope and quality that had called for almost one entire generation's interlude of "communicative silence", as one philosopher has put it. With all these reasons and motivations for an activist approach in place, who should be selected as its legitimate targets? 1. State Socialism as Disaster or as Crime?

node 5: were they well-intentioned but ignorant or guilty of crimes or opportunism? if guilty:

node 6: minor guilt or major guilt? if major:

node 7: do they show signs of regret/no regret? if none:

node 8: can the new regime afford/ not afford to dismiss/ punish perpetrators? if not:

node 9: due to shortage of experts/administrators or due to fear of retaliation?

Let us start with a thought experiment. Suppose we could assess the total volume of welfare or well-being (in the most inclusive sense) of an entire society for the period of time of its existence. Leaving aside all the problems of interpersonal and inter-temporal utility aggregation, we would come up with an estimate of the overall welfare performance and happiness of a society during the period in question. Such information on actual well-being would make sense if it were meaningfully contrasted to a notion of potential welfare, the benchmark being either the standards a society, through its representative agencies, has set for itself or the standard actually achieved by "comparable" societies. Now, societies never live in the "best of possible worlds". Hence, whatever the standard applied, the actual level of welfare achieved would most likely turn out to be inferior to the standard of overall potential welfare that would have resulted under the counterfactual condition that everything went as well, or had been done as wisely and with the measure of fairness, as we reasonably could hope for. This speculation leaves us with a differential, the difference between actual and potential overall welfare experienced over a period of time. The notion that is relevant here is that of the volume of "unnecessary suffering". An argument that was popular in Poland in the early nineties and that was referred to, for instance, in a talk by the former Polish Prime Minister Suchocka claimed that the Communist regime had prevented Polish society from becoming a "normal" society, the benchmark being French or other West European societies and their material as well as non-material indicators of wellbeing and collective happiness. After having established the notion of the difference of actual and potential well-being achieved in a society within a historical period of time (and supposing this differential is deemed non-trivial), we can then ask how this differential of sub-optimal welfare performance can be accounted for. Several possible answers come to mind. First, the gap can be due to bad luck, amounting to a disaster of historical proportions (such as a

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major economic crisis) for which no specific actor can be held responsible. Next, it can actually be attributed to some significant category of agents. These agents may be part of the society's space and time-slice in question, or they may be external and previous to it. For instance, a serious under-performance in the welfare yield of period N may be due to what identifiable actors did in that society in the preceding period M; examples include a war of aggression committed in M from the consequences of which results the under-performance during N. Also, external actors such as occupation forces may be responsible for the gap, for instance because the extracted massive reparations from the economy under consideration. But the gap may also be construed to have been caused by internal actors who may have made irrational, misguided, irresponsible or otherwise morally objectionable decisions as the result of which the total welfare may have been depressed. As one limiting case, virtually all adult members of the society in question (except, perhaps, for a tiny minority of opposition activists, as well as the very young) may be said to have caused (or failed to prevent or correct) the pathologies from which they have been suffering. According to this reading, the gap of well-being is the result of a giant collectively selfinflicted damage. Alternatively, there may be a sub-group, e.g. of bad rulers and their administrative staff, who caused the gap. Furthermore, the actors who have caused the relative loss of welfare and happiness may be perfectly innocent, because they cannot be reasonably expected to have known better and to avoid the "mistakes" they actually turn out in retrospect to have committed. For instance, it may have been a case of bad luck in elite selection. Also, the knowledge needed in order to tell disastrous courses of action from benign ones may not have been available at the point of action. But in contrast to these actors to whom such excuses apply, some acts and their authors can be criticized as positively unjustified. This is the core of actors to whom questions of moral and legal responsibility, or of guilt and punishment can at all be meaningfully addressed. This is the case if (a) the act in question, lacking a valid welfare-related or other normative justification, added to the overall level of "unnecessary" suffering, waste, and unhappiness; and if (b) this effect was known or could have been known to the agents in question; and if (c) they were in no way coerced to commit this action so that non-compliance would have resulted in the suffering of personal damage that the person in question could not have been expected to accept. In other words, if autonomous actors do actually inflict damage upon others and can be assumed to know what they are doing, we consider them guilty of wrongdoings. These objectionable acts of accountable past actors can be considered to be relatively minor in nature and/or so widespread in scope that the new regime covers them with an attitude of silence or forgiveness. If such attitude is not adopted, the situation calls for sanctions. 2.

Living in Untruth

Unfortunately, meaningful and uncontroversial measures for something like "overall systemic failure", "unnecessary suffering", or the "gap between actual and potential welfare" are impossible to come by. In order to do so, one would have to make crude aggregate utility calculations and heroic counterfactual assumptions. While it is common to assess the alleged deficiencies of the political and economic system of the GDR by taking the West German realities of the post war period as a benchmark, such measure of the systemic performance of the GDR cannot be taken seriously. Its use would mean to ignore the fact that neither the potential of economic and political development

Transitional Justice in the German Democratic Republic and in Unified Germany

245

of the two states nor the intended patterns of their development had much in common that would justify such benchmarking. In the absence of an objective accounting frame, the only way out is to measure and evaluate societies by the standards they have explicitly set for themselves. Should they be found to fail in terms of these standards - as well as to fail to admit such failures, to learn from them, and to allow for initiatives to correct them - the evidence of the presence of a welfare gap is rather compelling. For instance, if rights are nominally guaranteed but not redeemed in practice, without this gap becoming known nor being acknowledged by rulers and without the means (such as independent courts) being available to the ruled to correct the situation, we can speak of a severe systemic failure. Similarly, one might look at the gap between intended and actual economic output. While there is nothing wrong with the failure to implement economic plans successfully, a "second order" failure begins when this failure is covered up and attempts to leam from failures so as to overcome inefficiencies are being obstructed. State socialist societies, in the name of "scientific socialism", have destroyed and prohibited the use of valid means of self-observation and self-evaluation, such as independent courts, clean and contested elections, professional bookkeeping, free media, and politically uncontrolled social theory. It is not only that they failed to accomplish what they could have accomplished. They failed to allow for the admission of this failure. Thus the easiest and most encompassing way to answer the question of what was wrong with state socialism is to point to this feature of endemic and pervasive dishonesty. For the system's dependency upon the practices of profoundly dishonest self-portrayal breeds the violent repression of those trying to tell the truth and to share it with others. State socialist regimes depend upon apparatuses specializing in the repression of truth. At best, narrowly circumscribed parts of the ruling elite are allowed access to the truth. The problem would be understated by far if we were to conclude that it was a regime of liars. Much worse, the regime generated a huge demand not so much for liars but for specialists devoted to the task of silencing truth. State socialist systems conceive of themselves, and probably rightly so, as highly vulnerable to non-cooperative or openly independent modes of behavior. They are paranoiac about dissent, treason, manifest acts of disloyalty, and internal enemies, particularly so in a Cold War international environment where every "wrong move" or unlicensed contact can be scandalized as "helping the enemy". Hence state socialist regimes spend enormous resources and efforts on surveillance, control, indoctrination, and the sanctioning of any challenges to the canonized self-portrayal and its allergy to non-partisan observation. If we are right in arguing that the stability of the entire political, economic, and cultural system of state socialist societies such as the GDR was contingent upon the effective neutralization of potential "truth-tellers" through intimidation and other means of repression, it follows that what is wrong with state socialism cannot be accounted for in terms of acts and actors alone. Moral wrongs were a systemic, not primarily a personal quality. Institutional arrangements of this system were such that any political and economic elite would suffer from a virtual addiction to practices of epistemic policing. The systemic need for controlling and repressing presumably ubiquitous and dangerous "truth-tellers" creates rewarding opportunities for actors who are willing, able, and sufficiently unscrupulous to perform a delicate double task: They must be able to find out the truth about potentially dangerous truth-tellers while at the same time minimizing the risk that the truth of their performing this task is found out by those whom they are supposed to survey. In other words: State socialism creates favorable opportunity structures for an army of formally employed as well as "informal" collaborators of the Ministry of State Security (Stasi) (as their ranks, numbering more than 250,000 in a population of

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17 millions, were called in the GDR). This is so according to much the same logic as corporate capitalism creates the need for an army of investment brokers. In either case, the role people play is mandated by systemic requirements and cannot fully be reduced to their personal intentions and moral qualities. State socialism is an opportunity structure that imposes constraints, allocates incentives and premiums, and inculcates preferences which are all not of anyone's deliberate making and free choice. How is it possible to come to terms with these "faceless" arrangements in terms of personal guilt and culpability? On the other hand, such a "systemic" view of the past is deeply unsatisfactory for actors that are external to the system in time and space. For the past regime lives on, not just in the memories and continued suffering of victims, but also in the visible and suspected position of privilege and influence that members of the old elite and their functionaries continue to enjoy. Many of them have been able, or are suspected to have been able, to "convert" the resources acquired under the old regime into present status and advantage. The old regime has its traces and residues within the new. What present actors can act upon is no longer the institutional order of the old regime, or its "structure". That order has gone anyway. The only thing to deal with that remains is persons who are known to have done certain things or suffered certain things. The failure to deal with these residues, or so it is believed at least by the victims themselves and those who feel solidarity with them or indignation over their victimization, would stand in the way of an effective integration of both actors and sufferers into the new political order unless these events are properly dealt with by the new regime. In order to cope with either of the two continuities -the continuity of memory and indignation and the continuity of impunity and influence - the present reading of the history of the now defunct system of state socialism is bound to shift to an "activist" mode. In an epistemic gestalt switch, personal responsibility is now being emphasized and systemic causation played down, and actors are now being looked upon in terms of personality traits such as heroism, moral weakness, guilt, awareness, deliberate action, and opportunism, rather than in structural terms such as social roles, built-in constraints, and preferences shaped through indoctrination and manipulation. Those who used to be (and to think of themselves) as "functionaries" of the regime are now, after that regime's end, being reconstituted as responsible and potentially culpable agents. Many people both inside and outside the defunct empire of European state socialism believe that this type of political and economic order was a profoundly unfortunate period in the history of the societies affected by it, as state socialism deprived huge populations of the measure of well-being and happiness, as well as of the benefits of a civilized and liberal political order, that they could have attained in the absence of the state socialism. Let us assume, for the matter of argument, that this proposition is both meaningful and true. In retrospect and after the old regime went under, it is unlikely for the reasons just mentioned that the gap will any longer be attributed to impersonal forces and structures causing a historical disaster. Such "structuralist" view of the past may well be the preferred reading of history of those whose acts are now being explored and perhaps punished. On the other hand, the preferred reading of victims (as well as of the proponents of the new regime) tends to be that the entire malaise of the past system can be accounted for in terms of crimes committed by identifiable and responsible persons, among whom many survived the breakdown of the old regime.1 As this question 1

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This emphasis on concrete individual actors who can be held responsible for systemic properties is also illustrated by the reversal of the role of party and party members in the 1945 and 1989 cases. In 1945, the Nazi party was outlawed by the occupying powers, but many of the ranking party members were allowed to pursue their juridical, political or administrative careers. After 1989, the party was allowed to continue to exist, but members were screened before they were (re)admitted to

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remains contested, and as the discourse concerning the question cannot be concluded by authoritative fiat in a liberal society, the first problem is to reach a workable agreement between all sides involved on the range of acts and actors within the old regime to which the notion of moral or criminal guilt and punishment should be held to be applicable. 3.

The Politics of Building Interpretive Frames

Unoriginally, the notion of "responsible agency", and hence the answer to the question just raised, is a social construct. Let us distinguish two polar types of such constructs. One is the "weak" frame which denies, and the authors and proponents of which may be actually quite strongly interested in denying, the possibility of linking outcomes to causal acts of internal actors ("internal" regarding both space and time) who have been sufficiently autonomous and knowledgeable to be culpable. Adherents of this frame tend to look upon the negative experience of state socialism in terms of a fateful and anonymous historical disaster, perhaps even mitigated by some favorable accomplishments. This disaster emerges, according to this reading, from the synergism of innumerable actors, past and present, internal and external, well-intentioned, unknowing, and only marginally criminal by intention and effect. In other words, the "disaster" component, according to the proponents of this type of interpretive frame, is held to approach 99 per cent. The polar opposite is a "strong" frame which claims, and the proponents of which may be equally interested in claiming, that most of the negative outcomes can actually be traced back to personal actors who are demonstrably legally and, at least, morally responsible for the damage they have inflicted upon others (as well as themselves). Adherents of this frame tend to favor criminal prosecution, as well as other retroactive methods of dealing with unjust acts committed in the past that the new regime must cope with. To be sure, most empirical cases of interpreters dealing with the past must be located "in between" these polar opposites. But the distribution of frames across observers is far from random. The individually preferred interpretive frames may differ across countries, across generations, across types of disasters/crimes under scrutiny, across time, across political orientation, biographical experience, institutional location, and professional identity. As a result of this plurality of orientations, frames are essentially contested, and the contest is unlikely to be resolved by compelling arguments coming from philosophical analysis, historical research, legal scholarship, or political expediency. To what extent were actors and acts actually "internal" ones? And if they are to be held external, are they external in space or in time? Answers are far from obvious. Why was it that the exculpation was rarely used (or, at any rate, rarely accepted), in the case of the GDR, that much of the disaster must be attributed to external rather than internal actors? This excuse has been widely used in the Polish case. It might have been used regarding the GDR regime as well, given the fact that the sovereignty of the East German state was a limited one (contrary to what the GDR leadership itself postulated at the time) to the end within the framework of the Warsaw Pact and CMEA, with the Soviet leadership playing a dominant and generally decisive role. The excuse of external agency was actually invoked by defendants in the trial conducted against the Politburo members accused of being responsible for the border regimes and the lives lost under this regime. These defendants claimed that they were just following Warsaw Pact orprofessional or administrative positions.

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ders, without any possibility to escape. This attempted exoneration was rejected by the court on account of its dubious factual premise and the moral inconclusiveness of the claim that the defendants were actually "coerced" to comply. However, the argument of ascribing the wrongdoings of the past regime to the coercion of an external actor was, and still is, much more widely in use in the GDR's neighboring countries, most obviously in Poland, than in Germany itself. This difference can be explained by the fact that any externalization strategy would be blunted, in the German case, by the obvious consideration that the control of the Soviet empire over East German politics was itself caused by the war of aggression originating from Germany, and Germany's subsequent defeat. In other words, it is only to Germany that the condition applies that the agents of external coercion were originally caused, enabled, and seemingly justified by previous internal actors. This consideration deflates the value of any depiction of the past as a history of collective victimization. One might speculate that the latter intellectual scheme is more likely to emerge in a Roman Catholic as opposed to a Protestant culture with its basically individualist background assumptions. Concerning the question of the causal attribution of outcomes to internal and external actors, and more precisely: actors being internal or external in either space or time, a complex matrix could be drawn which links categories of interpreters to their respective most favored interpretations. For example, opposition activists having fought the old regime, together with many courts involved in prosecuting members of the old regime, would typically reject the old elite's claim of having been coerced by forces external in space. In the eyes of these interpreters, rulers and other agents making up the old regime are held to have been sufficiently unconstrained by external actors and hence autonomous and responsible for their acts. At the same time, these interpreters would certainly be prepared to recognize the role of causal forces that were external in time, namely the Nazi regime and its war of aggression. In contrast, the interpretive frame prevailing in Poland is significantly different in that the attribution of deplorable outcomes to responsible actors was unequivocally based upon the notion of some unjustified foreign rule of the Soviet Union, without much criminal forms of cooperation being focused upon of which significant numbers of internal actors could now be justly accused. For attempts to scrutinize the elite of the former regime and its supporters is widely seen in Poland as a dangerously divisive move that could undermine the sense of national unity and pride. These two examples may just serve as an illustration of the link that exists between the location of actors in a field of interests and meanings, on the one hand, and their preferred frame of interpretation, on the other. The framing of agency and the causal attribution of outcomes to agents is not conditioned by factual evidence and disinterested analysis alone. There is a discursive "politics" of framing. Pragmatic considerations of acts that would have to follow from the adoption of a particular "reading" of the old regime, and strategic responses to these acts that must be anticipated from affected groups, will all play a role in the formation of interpretive frames. For instance, pragmatic consideration such as the following ones may play a role in the motivation of those favoring a "weak" frame: 1. the anticipation that attempted legal activism in prosecuting crimes committed under the old regime is likely to be obstructed (or even actively and violently fought) by alienated agents within the state administration and the judiciary; 2. the anticipated need that the expertise of those liable to criminal prosecution will be indispensable for the reconstruction of the political and economic order, with The most dramatic case that corroborated reasons for fear were the attempted carapintada revolts in Argentinian barracks. Compared to them, the Spanish case of a military officer invading the parliament with a gun in 1981 remained a minor and isolated incident.

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the implication that tactical lenience should be allowed to prevail; the anticipation that the quality of the available evidence will not be sufficient (perhaps due to the control members of the old apparatus have gained or even maintained over these documents) to enter into effective criminal prosecution; 4. proponents of the new regime may also wish to protect themselves by protecting key actors of the old regime from criminal prosecution, the underlying reasoning being that if such prosecution were to result in significant penalties, representative actors of the new regime could be blamed in retrospect for having cooperated with (or at least not duly resisted suggestions aiming at cooperation coming from) those whose eventual demise from power had caught them by surprise. These and similar considerations may all play a role in discouraging the building of a "strong", actor-centered frame built upon the presumption of evident links between outcomes, on the one hand, and autonomous and knowledgeable (and hence potentially culpable) actors, on the other. Conversely, the adoption of a "strong", or agency-centered frame that would allow for the attribution of most of the negative outcomes to internal actors who are held fully responsible is also driven by values, anticipations, and interests. Relevant considerations of this kind include the following: 5. Proponents of the "strong" frame may be motivated by the desire to respond to the emotional needs of victims and to win over those who have suffered under the old regime to accepting the rules and principles of the new regime; 6. there are also invariably less lofty motivations for the adoption of a strong frame and its punitive practical implications. One of them results from the fact that the coping with acts committed in the past is always embedded in present-day political conflict. For instance, if a governing political party A manages to demonstrate and publicize the fact that actor X has been involved in objectionable activities under the old regime and, furthermore, that this very same actor is now associated with or enjoys the support of opposition party B, this is likely to yield a competitive advantage for party A in future electoral campaigns. The obvious retaliatory move that party B is likely to resort to is scrutinizing the elite personnel associated with party A for similarly reprehensible actors or acts. Political competition may also be conducted in terms of a moralizing conflict over meta-norms, with the typical accusation being that political parties on the Left are disposed towards practicing inappropriate leniency to crimes committed under the old regime; 7. other political goals served by the adoption of a "strong" frame include the attempt of restoring some international reputation of a country (such as Germany) that has been widely accused in the past, from the outside as well as from within, for having failed to punish the perpetrators of the Nazi regime as vigorously and consistently as was called for moral reasons. This type of motivation follows the rule of "this time we are determined to do it right"; 8. also, the somewhat triumphalist goal can be served of engraving the fact into the memory of the present and future generations that "we", the liberal democracies of the West, have won the Cold War and that the merciless prosecution of the old regime's elites is mandated by the need to consolidate the new state; 9. more respectably perhaps, the goal to be served by adopting a version of the "strong" frame is to immunize future actors against the dangers and temptations of relying on or complying with authoritarian rule, and to make irreversible the transition to a liberal and democratic form of political regime; 10. finally, a strong frame, together with its practical punitive implications, can be advocated because it serves the political, juridical and scholarly interests of those who are committed to shed as much light as possible on the internal dynamics of 3.

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the old regime; for criminal trials afford the unique opportunity to gather data because courts can (a) force strategic actors to testify before a court and to submit to the scrutiny of criminal investigation and (b), in most cases, to testify under oath. 4.

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The Adoption of a "Strong" Frame in Germany after 1989

The two lists of motivations, both of them incomplete, highlight the complexity that is involved in adopting either the weak or the strong frame, or any mixed position "in between". Yet the actual trajectory that can be observed in the case of the GDR and its retrospective treatment within unified Germany is easy to summarize. A dominant coalition emerged in which actors and motives converged on adopting a modified version of the "strong" frame. The German case of retroactive justice resulted in a more activist strategy concerning the pre-1989 regime of the GDR and its actors than is the case in any of the other post-Communist countries. Why was this so? Let us review how the various Pro's and Con's that we have identified above figured in the German formation of a policy concerning transition justice. The presence of a substantial welfare gap, both material and immaterial, that had accumulated throughout the forty years of history of the GDR is taken for granted at the end of the year 1989 not only (trivially) by West German political elites and the former GDR's opposition forces, but also by the political and economic leadership of the GDR itself. There was literally nobody who would claim publicly that the old regime deserved any credit any longer in terms of its economic sustainability or political legitimacy. Similarly pervasive was the consensus that this grim reality of moral and economic bankruptcy must be largely accounted for in terms of internal agency, as no external scapegoats were available. These internal actors were seen to be accountable (in the sense specified above). This accountability was recognized by all sides involved, including the state party SED and most of its leadership. The latter, however, was somewhat selective in its recognition of accountability and guilt, taking exception, for instance, regarding the border regime and the lives lost under this regime, which was attributed to external coercion originating in Warsaw Pact structures. Otherwise, the recognition of failures and mistakes, though not universally of a criminal nature, was unequivocal. The state party's preparedness to engage in self-blame is less curious than it might appear at first sight. For the leadership of SED, soon after the breakdown of its regime renamed into Party of Democratic Socialism (PDS), was bound to appreciate that its political future was contingent upon some credible measure of distancing itself from aspects of its political past and that of selected elements of its former leadership.3 At the same time, the insistence of the leadership upon the logic of "mistakes" having been committed by identifiable individuals rather than the structural patterns of state socialism having caused an inescapable disaster allowed leaders and masses alike to preserve their belief in the viability of some future form of state socialism, one in which such mistakes were to be avoided. There was thus no relevant voice raised in the GDR between November 1989 and the end of its statehood on October 3, 1990 that would have raised principled objections to the prosecution of at least some of the violations of rights that were instigated, sponsored, tolerated, and condoned by and under the old regime. More than that: there was a This is in marked contrast to military authoritarian regimes who can resist - as well as have every reason to resist - even gestures in the direction of criminal proceedings being adopted. After their demise, they are interested in wholesale amnesty. After all, they are not based upon a political party whose electoral fates are at stake in case no such prosecution would be forthcoming.

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broad if highly diverse and diversely motivated advocacy in favor of legal sanctions of these violation. Nor were there, at least during the initial phase of the process in 198990, significant objections to actually embarking upon a course of criminal sanctioning. Virtually all the reasons suggesting the adoption of a "weak" frame, as summarized above, were absent, as well as all the reasons supporting the adoption of a strong frame present. The focus of the criminal prosecutions initiated in 1990 (i.e. before unification) was not on the old regime's acts of repression, but of illegitimate appropriation of economic resources (through corruption) and of political resources through the falsification of local elections that had demonstrably occurred on a large scale in May, 1989. To elaborate, no substantial fears arose (contrary to the actual subsequent experience of a substantial nostalgic backlash spearheaded by the PDS) that juridical activism in dealing with violations of the defunct regime would alienate relevant parts of the East German population and thus exacerbate divisions within the post-Communist society of the GDR. With the exception of the core of the state party and the most loyal parts of its constituency, virtually all political forces, and particularly so both the former opposition within the GDR and the political elites of the Federal Republic, expected a rapid process in which, for both political and economic reasons, the vast majority of the people of the GDR would be persuaded to adopt a loyal attitude to the principles the West German state is based upon, and eventually to unification. At the very least, and with the prospect of unification becoming rapidly more concrete, committed supporters of the old regime were expected to be incapable of playing any significant role anymore in the future of unified Germany. There was no perceived need to extend any leniency to them out of political prudence. To the contrary, it was widely perceived that juridical inaction would have grossly frustrated the internal opposition forces in the GDR and their allies within the emerging party system. Similarly, the concern that the personnel of the state apparatus, including the judiciary, would feel alienated by a strategy of judicial activism and would try to obstruct the process appeared unfounded. To be sure, there were various attempts and initiatives launched by Stasi officers and other agents of the old regime to intimidate, threaten, and "punish" the new authorities, as well as to join forces with West German and other gangs involved in organized crime.5 But no case is documented in which these networks (often referred to as Seilschaften, or mountain climbers connected by a rope) actually succeeded in effectively interfering with the orderly conduct of politics, administration, or justice. For the functionaries of the old regime incentives to adapt to the new conditions were significantly more powerful than incentives, as well as opportunities, to fight the new regime. This can be explained by the fact that it must have been evident to officials of all ranks and branches of the state apparatus (in sharp contrast to both the post1945 situation in Germany and the situation prevailing in all other post-Communist countries) that acts betraying faithfulness to the politics and principles of the old regime would be responded to by the new regime through disciplinary measures and ultimately the removal of opponents from their position. Such removal would involve the consequence for those affected of losing their career prospects, particularly as a virtually unlimited supply of substitute personnel could be mobilized and moved in from West Germany. This configuration of power relations has actually led to highly opportunistic behavioral responses that are proverbially referred to by comparisons to Chameleon, a reptile able to quickly adjust to the color of its environment, or Wendehals, a bird capable of turning its head by 180 degrees without breaking its neck. The term also alludes to the transition (Wende). Scores of those who were involved in Stasi activities were 4 5

K. Marxen and G. Werle, Die strafrechtliche Aufwertung von DDR-Unrecht, 235. M. Richter, Die Staatssicherheit im letzten Jahr der DDR, 254ff.

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dismissed and replaced by either substitutes who could be recruited locally or, particularly in cases where the newly adopted West German institutions required new kinds of expertise and professional knowledge, by temporary substitutes brought in from the West. Finally, there was also no reason to believe that the data bases for criminal prosecution would turn out to be insufficient for criminal prosecution in either quantity or quality. To the contrary, and after the Citizens' Committees had largely succeeded during the winter of 1989-90 in obviating local Stasi officials' attempts to destroy or hide files, a vast official data archive was organized through an act (Stasi-Unterlagengesetz, StUG) passed by the Bundestag in December 1991. No other post-Communist country has at the disposal of its authorities a comparable wealth of data that would be, on top of it, equally well protected from the interference of interested parties. All of these considerations do not yield a single point of view that could serve as an objection to the strategy to juridical activism in dealing with the violations of rights committed under and with the approval of the old regime. The adoption of a "strong" frame was made more likely in the case of the GDR by the circumstances just discussed than was the case in the other post-Communist regimes where these favorable conditions did not apply, certainly not to the same extent. Yet in the early nineties arguments against adopting the "strong" frame, at least in its radical version, do play some role in the case of the GDR, too. These arguments are based upon doubts that a justification for vigorous retroactive transition justice can be found that is consistent with both legal principle and historical precedent. Concerning the latter, the comparison with the transition justice that was practiced in Germany after 1945 works both ways. On the one hand, one can argue that what went wrong then must be corrected now. But on the other hand, the argument cannot be dismissed that after scores of leading politicians, state functionaries and intellectuals who were deeply involved in the Nazi regime went unpunished after 1945, why should it be right to adopt tough strategies of criminal prosecution against those whose crimes were on the whole of a indisputably smaller scale? If anything, these and other doubts have increased in their weight and significance since the beginning of criminal prosecution in late 1989. In a nutshell, or so we wish to argue, the arguments supporting the adoption of a "strong" frame lost much of their force in the process, giving way to doubts, disappointments and even regrets as the process unfolded. The questions which must be coped with in the process are momentous indeed. Who is to be sanctioned for what acts, by what methods and on the basis of what kind of justification? 5. Acts and Actors The welfare-diminishing acts by which the GDR regime has deprived its citizens of rights as well as of material resources are numerous. Beginning with violations of the right to life inflicted upon people killed at the border and as political enemies of the regime, actors within the state apparatus of the GDR have systematically violated, based upon the official instruction, justification, and toleration of the regime's representative elites, virtually every human and civil right recognized in civilized nations.7 Cases in 6 7

See K. Marxen and G. Werle, Die strafrechtliche Aufarbeitung, 3-140, for the most detailed account. Though interestingly, not every violation of civil rights was actually tolerated by the regime's officials. When two Stasi officers decided that it would be a helpful idea to actually kill two opposition activists by making them victims of what was designed to appear a fatal traffic accident, they were accused and sanctioned by the superiors for going much too far and for planning to

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point are the systematic repression of free communication and information, the denial of the right to communicate and to move across borders, coercive internal relocations, abductions and (in some cases) subsequent killings of persons from foreign countries,8 the denial of property rights and the program of forced agricultural collectivization, ideological indoctrination of the entire population, the violation of the physical integrity of athletes through routinely administered doping programs, the far-reaching denial of the right to associational life within civil society, large scale spying on people suspected of oppositional activities, and the unjust sanctioning of such activities through criminal punishment and the practice of Zersetzung. These violations of rights were undisputedly of an "internal" origin. The excuse that political repression, including criminal punishment for acts of political opposition and dissent, were ordered by representatives of the Soviet government (such as the Soviet Military Tribunal) active within the territory of the GDR had entirely lost its foundation by about 1955. All repression after that early date was largely home-made. There were between 250,000 and 300,000 political prisoners sentenced during the entire history of the GDR. As late as during the period 1979 to 1989, the average number of people sentenced for political acts (including alleged economic "crimes" and requests to obtain a permit to leave the country) was 5,000 cases per year. The number of those whom the actors within the repressive state apparatus considered "hostile elements" and prosecuted has been much larger than the number of those who actually adopted a "hostile" position by engaging in organized, religious, network, or movement forms of opposition and resistance. The latter figure is estimated, as late as the mid-eighties as "a few thousand" people. The difference between the two figures - say 250,000 and perhaps 5,000 - is partly explained by the fact that very often people who were sentenced to prison terms were "bought free", at a rate of about DM 100,000 per capita, by West German authorities - an act which implied their "dismissal" from GDR citizenship and transfer to West Germany. This act also provided the GDR government not only with the opportunity to "earn" substantial amounts of revenues, but also with the unique chance to get rid of and to permanently externalize much of the opposition. While authoritarian regimes often run the risk of increasing the ranks of their opponents by employing repressive means against them, the GDR had exempted itself from this dialectics of repression. The apparatus of repression that was designed to deter oppositional activities and to investigate political "crimes" was sizable indeed. Recent estimates of the number of people active in the state security apparatus cite 91,000 full time ^hauptamtliche") and another 174,000 "unofficial" employees and collaborators. But there is no obvious reason to restrict criminal prosecution to those actors who demonstrably were involved in the repression of activities of citizens that were perfectly legal according to the letter of the GDR's laws. In addition to such repressive acts, there were other damages inflicted and losses implemented by the leadership of the GDR. As far as the collectively detrimental destruction (or inefficient allocation) of resources (as opposed to the violation of rights) is concerned, massive environmental poisoning must be mentioned, as well as the decay and rotting of buildings and entire historical cities that was allowed to occur due to lack of repair and maintenance, the waste of items of the so-called Volksvermögen ("peoples wealth") through the deficiencies of the system of management and planning, and the illegal appropriation of economic resources by members of the elite and privileged strata.

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commit criminal acts. Details of the case, as well as of the failure of the German court system to prosecute even this extreme case, are reported in Der Spiegel, 72-76. The number of abductions from West to East, both executed and attempted, is estimated to be 600 to 700 cases. Just one of these cases resulted in a single person being sentenced to prison.

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How can these acts be accounted for in terms of the above conceptual analysis? The answer to this question is far from certain. On the one extreme, few commentators would probably describe the system of state socialism as it was established in the German Democratic Republic after 1949 as anything coming close to a criminal conspiracy of self-serving power holders intentionally and knowingly causing the economic malaise and civilizational decline from which the GDR irremediably came to suffer. Between the extremes of unequivocal criminal guilt and equally unequivocal innocence, there is a huge Gray zone where both the questions of fact ("who did what or ordered it to be done?") as well questions of legal principle ("which norms and procedures should apply and what kinds of excuses of defendant must be recognized?") are often exceedingly hard to settle. That is to say (using the criteria of guilt mentioned above, namely violations of rights and interests, absence of justification, absence of excusable ignorance, and absence of coercion), most actors who where positioned at some point within the vast apparatuses of political, military, economic and cultural control thought of their own action most of the time as either justified by valid norms or desirable outcomes. But even if not, they may have felt caught in a dilemma such that one and the same act appeared mandated in view of one norm or utility while lacking justification in terms of another principle or rule of a roughly equal salience. Perpetrators may also have been unaware (and perhaps inexcusably so) of the consequences of their action. Furthermore, they may have felt "forced" to do what they were doing, with the alternative possibilities implied that the "force" was real, that it was just imagined in order to calm the actors conscience, and that it was real but with relatively mild sanctions being attached to non-compliance so that actual compliance appears more a matter of opportunism rather than coercion. Other possibilities include the fatalistic type of compliance based upon the agent's full awareness that there is no valid justification for doing what he is supposed to do but that non-compliance is, at the same time, perfectly inconsequential, as "if I don't do it, someone else will". But not only are terms such as "justified", "aware" and "forced" highly ambiguous and contested. To be sure, the gray zone does not cover the entire range of objectionable acts committed by officials and servants of the old regime. Large numbers of cases can be cited in which power holders have intentionally, arbitrarily and freely violated the rights, destroyed the life plans and inflicted damage upon fellow citizens in ways and to an extent that must be described as deeply cynical and often positively sadistic. Also, opportunism was widespread and practiced with good conscience under a regime that put a premium upon conformism and obedience rather than the exercise of autonomous moral judgment. At the other extreme, the honest belief, on the part of "perpetrators with good conscience", that compliance was justified by the ideals of social justice and international peace was also part of the picture. Even within the limited segment of the overall malaise of state socialism in which negative outcomes can be traced to personal actors is appears exceedingly difficult to disentangle the varieties and mixes of all of these motives, cognitive states, and interested interpretations, narratives, rationalizations, and excuses by which those under accusation may defend themselves. Even more difficult is the attempt to assign criminal guilt to actors and to do so in conformity to procedures which live up to the requirements of the rule-of-law principles, such as nonretroactivity. The overall malaise of state socialism is much larger than the total of damages and suffering which identifiable actors inflicted upon concrete victims. The ways in which potential well-being and happiness was obstructed by the state socialist regime of the GDR falls roughly in three categories. One is the violation of civil rights, as just specified. A second one is the erection and maintenance of a system of economic management that, while implementing in its distributional effects a pattern of authoritarian and

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paternalistic egalitarianism covering all Werktätige ("working people") and their families, implied a relative waste of economic resources (including the waste inflicted through economic corruption and privileges of the ruling elite) and a lag in productivity which was partly caused by the mode of integration of the GDR economy into the Council of Mutual Economic Aid (CMEA) system. Third, the ruling ideology, together with the monopolistic control it exercised over the school system, the media, the arts, sciences, and virtually all other institutional sectors of society, imposed a regressive cognitive culture. The doctrines of the ruling ideology, as promulgated by the monopolistic party, can be held responsible not just for providing justifications for the practices in the two other realms of civil rights and economic efficiency, but also for blocking and paralyzing much of the intellectual, moral, and perhaps even esthetic potential, sensibility and creativity of the citizenry of GDR (notwithstanding the major artistic accomplishments achieved by the GDR's often oppositional writers, painters, and musicians). Now, the disastrous effects of the two latter categories of deprivation, the economic and the cultural, are not easily accounted for in terms of individual acts and actors as in the case with the first. Conversely, if the past of the state socialist regime is primarily looked at through the prism of criminal law and its logic of processing illicit acts and their consequences through attributing them to individual actors according to legal rules, this practice would seem to involve a somewhat selective attention to damaging acts that are potentially punishable according to standards of criminal law. For this perspective implies the framing of the deprivations caused by the old regime as something that is primarily committed by agents within the repressive state apparatus (the Staatssicherheit, the courts, and the police); conversely, it de-emphasizes those deprivations which largely cannot thus be attributed, namely the "systemic" ills of the apparatuses of ideological control and economic (mis)management. The question can be asked (but cannot possibly be fully discussed in the present context) whether the worst deficiencies of the past regime was actually its systematic violation of human and civil rights and not, to an equal or even greater extent, its equally systematic mismanagement of economic resources or its imposition of a rigidly ideological cognitive culture. Is it right to conclude that if only the GDR had paid greater respect for civil rights, the realities of the GDR society would have become more tolerable as its economic and ideological deficiencies alone would have been less objectionable? At any rate, this is a point of view that implicitly seems to be endorsed if we were to approach the problem primarily in terms of acts of which identifiable actors are legally responsible and punishable for having violated human and civil rights of citizens. This is a question on which the two authors of this paper remain somewhat divided. The more strictly and scrupulously legal procedures are applied, the more legitimate complaints about the damages the old regime has inflicted are likely to remain outside the realm of retrospective sanctioning, as the full range of damages inflicted cannot possibly be processed through the narrow channels of orderly criminal prosecution. Given the constitutional provision that prohibits retroactive punishment according to nulla poena sine lege, not the wrongs of the regime, but only the violations of the regime's own (at least nominally valid) norms can be the object of criminal prosecution. What can be sanctioned is thus not the "normal" operation of the system, but its excesses. The question arises whether this implicit demonstration of the impotency of criminal law will actually contribute to the intended purpose of its administration, namely the cultivation of trust in the rule of law. By implication, many harmful acts that were typical of the practices of the old regime cannot be prosecuted due to the lack of one or more prerequisites of formally correct trials (about which more in a moment). Conversely, some categories of crimes are relatively easy to bring to trial, although they may in no way constitute a

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distinctive characteristic of the state socialist regime. Examples are ordinary white collar crimes (for the commission of which the economics of currency reform and unification provided plentiful opportunities) or the doping of athletes. These complications have led to the formation of a multi-tiered system of state-sponsored "Aufarbeitung der Vergangenheit", or working on the coming to terms with the past (as the somewhat ambiguous term can be translated that was adopted from the retrospective debates of the 50ies). The highest level of this multi-tiered system comprising legal, historical and political strategies consists in regular criminal proceeding, initiated by a special prosecutors office (ZERV plus Sta II). The next level is the complex set of activities which unfolded on the basis of the act of 1991 (Stasi-Unterlagengesetz) and which were conducted by the agency set up by this law, commonly referred to as the Gauck agency after the name of its president. While the initiation of criminal procedures is only part of this agency's mandate, it does focus upon individual actors on either side of the repressive transaction and sanctions the perpetrators of repressive acts through exposure and (indirectly) civic disqualification. A further step away from formal sanctioning and criminal procedure is the Enquete-Kommission (inquiring commission set up by the German Federal Parliament {Bundestag)) on May 20, 1992. This commission was assigned the truly formidable task of "working on the coming to terms with the history and consequences of the SED dictatorship in Germany". This commission focuses in its work not so much on individuals and their responsibilities, but upon institutions and power relations. Finally, there are a number of proposals for state-sponsored activities, such as the setting up of research and documentation centers and educational activities, which are intended to serve the deeper understanding as well as wider awareness of the nature of the state socialist regime. - We now proceed to discuss the activities on these four tiers in turn. 6.

Transitional Justice in the German Democratic Republic and in Unified Germany

Claus Ojfe and Ulrike Poppe

Criminal Trials

Whether or not to employ criminal law was a question that was settled from the beginning in political terms and under the impact of political contingencies. There was nothing "natural" or automatic in the reliance on criminal proceedings initiated against the former state's elites. To wit, there are a series of "ifs" which would have excluded criminal prosecution as a viable option. Had either the old regime in its desperate struggle for survival taken recourse to massive violence (following the Chinese example of June 4, 1989), or had the opposition turned violent during or after the breakdown of the old regime, nothing would have remained in terms of an agenda of criminal prosecution. For in the first case, the system's breakdown might at least have been postponed, thus making the prosecution of its crimes impossible for the time being. In the second case, a kind of revolutionary "justice" would have taken its course which arguably might have made formal criminal prosecution unnecessary at a later point. Furthermore, such prosecution would have been renounced as an option under the conceivable circumstances of a transiciön pactada, where the forces of the old regime (or its sponsors in Moscow) would have remained strong enough to negotiate a general amnesty for themselves as a precondition of conceding their removal from office and power. Thus the question of applying criminal justice has been treated as a political question in the GDR after November 1989 and (beyond the end of the GDR's life span) in unified Germany. The overall preference was, from the beginning of the breakdown of the old regime onwards, in favor of prosecution, with initially at best a marginal support for the alternative of drawing a "thick line" or amnesty. As early as on November 18, 1989, the SED-controlled legislature installed an committee of investigation that was man-

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dated to inquire into cases of abuse of official powers and corruption as well as the falsification of election results. On November 22nd, a police officer was sentenced to a 14 month prison term for having badly beaten up a GDR citizen. In December, several members of the SED Politburo and party officials of regional headquarters were arrested, and subsequently more than half of the members of Politburo were arrested for some period of time. After the parliamentary elections of March 18, 1990, the second plenary session of the Volkskammer debated, on April 12, the need for prosecuting regime crimes; this need was endorsed by members of all parliamentary groups. This determination to prosecute regime crimes was also emphasized by the GDR delegation negotiating the terms of the Unity Treaty with its West German counterpart. As a consequence, the mandate for prosecution was enshrined in the Unity Treaty that became effective on Oct. 3, 1990. This very broad consensus has generated a path dependency of judicial activism, as the new all-German legislature and political elites could not possibly fall back behind this stated policy goal of the Volkskammer, the democratically legitimate parliament of the GDR elected on March 18, 1990, as well as obviously also of the majority of the population. Courts in unified Germany considered themselves in possession of a mandate to embark upon criminal prosecution of "regime criminality" not because of their own authority to do so (which would have smacked of "victors' justice"), but because of Verfolgungskontinuität, or continuity of a prosecution that was originally initiated by the (democratic) GDR and which now became a legacy to be honored by the court system of unified Germany. Why was criminal prosecution considered to be worth the effort, in spite of the difficulties that arguably might have been foreseen even at the beginning? Three lines of argument have been offered to show why criminal punishment must be attempted. One is the familiar argument that perpetrators must be punished in order to deter them or others from committing similar crimes in the future. This argument has been dismissed as a non-starter in the case of GDR Regierungskriminalität as, thanks to unification and the evident moral as well as economic breakdown of the old regime, there will be no conceivable opportunity for incriminated actors or others to commit comparable crimes within a newly erected state socialist regime at any point in the future.9 At best, there can be a preceptorial effect of attaching moral and juridical disapproval to the old regime as a whole and the principles it was based upon. A second argument in support of criminal prosecution takes the point of view not of perpetrators (or potential future perpetrators) who must be deterred, but the victims who must be integrated and (at least) symbolically compensated. Apart from the potential conflict between the objectives of administering justice in strict conformity with standards of procedural fairness, on the one hand, and the provision of emotional comfort and satisfaction to victims, on the other, the argument presupposes that this reconciliation can actually be achieved within the constraints of the rule of law principle and ordinary criminal proceedings. Much of the later evidence that was perhaps not foreseeable at the point of unification suggests that this is not the case and that, to the contrary, victims are often deeply irritated and offended by the fact that very few and relatively mild sanctions that have actually been implemented. This applies all the more as the reverse side of the medal of criminal prosecution is acquittal of those against whom no sufficient case can be established - with the implication being, much to the anger of victims, that perpetrators have often received a virtual stamp of innocence when being acquitted from criminal prosecution due to lack of sufficient evidence against them. Even worse, German courts of appeal have decided that even though a particular crime 9

G. Jakobs, "Vergangenheitsbewältigung durch Strafrecht?"

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was defined by the criminal code of the GDR but only nominally so (because it had never been actually applied to relevant cases, e.g. of homicides committed at the border), it is inadmissible to prosecute a case on the basis of that (pseudo) norm because doing so would violate the principle of non-retroactivity. A third set of considerations in support of criminal prosecution takes the point of view neither of the perpetrators nor their victims, but, as it were, of the corporate interest of the German criminal law system itself. The argument is that after the German court system has failed to prosecute most of the government crimes of the Nazi regime, and after it has been rightly and severely criticized for this failure, this is the opportunity to do things right and to restore the (self) respect of the court system. At any rate, it must be avoided at all cost that the same mistakes are committed again. None of the major political actors making up the post-unification German party system, not even the PDS, could afford to oppose criminal prosecution as an instrument of dealing with the personnel of the old regime. Any such opposition would have been scandalized by political competitors as a proof of inappropriate permissiveness and leniency. The awareness of this potential charge applies with particular force to the (Social Democratic) German Left, as it was the Social Democrats who are now being remembered for initiatives they had launched in the mid-80ies which aimed at a closer cooperation with the SED and resulted in a paper co-authored by representatives of the two parties. Also, the political Right (as well as some media supporting it) were not always able to resist the temptation of the following argument: As the Left has stigmatized the early history of West Germany as being under the shadow of Nazi continuities, conservative forces must now strike back by exposing the left for its continuing intellectual affinities with state socialism. At any rate, during the first half of the nineties, the denunciation of (aspiring) political elite members in East Germany for alleged Stasi collaboration was a tactic applied by either of the two major political parties of the West. As the Christian Democrats (in their infamous "red socks" electoral campaign of 1994) accused the Social Democrats of being irresponsibly open to collaboration with SED/PDS elements, so the Social Democrats exposed their major electoral competitor of harboring in their ranks important elements of the Eastern CDU, an institutional ally (within the GDR National Front) of the SED. These tactical moves, however, were clearly not appreciated and rewarded by either Western or Eastern voters. To be sure, these initiatives were not aimed at bringing state criminals to criminal justice, but at disqualifying individuals from political elite positions. However, and coming back to criminal prosecution proper, a demanding set of conditions must be met in order to conduct criminal justice under rule-of-law principles. Six of these conditions can be distinguished which are needed for the prosecution and eventual sentencing of a defendant. Each of them is associated with some thorny questions. Let us briefly review these conditions and related problems, without, however, going into any detail of the vast technical legal literature that has emerged in recent years on these issues.10 First, a valid and specific norm must be found that identifies some act in question as a crime. The problem here is the question of retroactivity, as the legal norm must have been valid already at the point the act was committed and must have actually been operative as a norm applying to all acts and all actors. That is to say, a rule is actually a rule only if it is not a rule that arbitrary exemptions from the rule are being made and can be expected as a rule. Also, the norm must still be applicable at the point of the 10

See ibid.; K. Lüdersen, Der Staat geht unter, G. Schaal and Woell, Vergangenheitsbewältigung; C. Stark, W. Berg and B. Pieroth, Der Rechtsstaat und die Aufarbeitung der vorrechtsstaatlichen Vergangenheit; K. Marxen and G. Werle, Die strafrechtliche Aufarbeitung von DDR-Unrecht.

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opening of criminal prosecution, as opposed to being inapplicable due to some statute of limitation. The solution found in the case of the GDR is that only those norms that were enshrined in the criminal codes of both of the states concerned, the German Democratic Republic and the Federal Republic of Germany, were relied upon for criminal prosecution. If either of the legal norms provided for a milder punishment than the other, that was the one to be adopted for the trial. The statute of limitation was suspended, as some crimes actually punishable under GDR law were arbitrarily not prosecuted by the authorities. The clock was restarted so that all crimes committed between 1949 and 1990 could be prosecuted for a period of 10 years, ending on the 10th anniversary of unification on October 2, 2000. As an exception, the prosecution of homicides remains open until October 2030. Some acts, such as practices of Zersetzung, were actually, in spite of the often significant damages inflicted upon victims, technically no more than minor misdemeanors. For instance, breaking into the apartment of a citizen was punishable under GDR law only if the act had been committed repeatedly. Second, the act violating a criminal norm must be proven to have actually taken place. The availability of evidence differs according to categories of crimes. Given the vast quantity of violations of rights committed by members and collaborators of the Ministry of State Security (MfS) of the GDR, as well as the opaque organizational context in which these violations have been committed, the problems of producing viable evidence were massive." Furthermore, and in order to avoid the politically divisive appearance of "victors justice", the courts have tended to impose very stringent requirements upon admissible proof.12 Some acts that could be proven to have taken place on the basis of documents, such as the tapping of the telephones of citizens, could not be prosecuted as they were not punishable under GDR law. Third, the author of some particular act, the perpetrator, must be identifiable. Similar difficulties apply as in the previous point. If acts could be identified, they could not be linked to the authors of such acts, or vice versa with potential actors, such as prison guards. Also, the courts tried to avoid another potential objection, namely that of focusing upon the hierarchically inferior actors (e.g., in cases of border homicides) while letting their superiors off the hook. Fourth, in most cases some concrete damage must demonstrably have been caused by the actor's act. Fifth, the actor must have been aware of the illicit nature of his act. And sixth, the actor's excuse of having been coerced must be invalidated. The kinds of criminal activities, however, that were to be investigated and, wherever possibly, subsequently brought to trial were sharply limited. It included six major categories of crimes. 1. homicides committed by border guards, 2. violation of court procedures and defendants' rights, as well as arbitrary sentences according to GDR law, 3. economic crimes, mostly committed in the context of unification, 4. killings and abductions committed by agents of the Ministry of State Security, 5. extortion of property of persons who were allowed to leave the GDR, 6. miscellaneous crimes such as falsification of election results, administering anabolica and other drugs to athletes, etc. What is conspicuously missing from this list are huge numbers of cases where individual citizens became the objects of "disorganizing" measures (^Zersetzungsmassnahmen") initiated by Stasi agents who would not just spy and report on their victims, but also interfere with their (work, family, social, sex, educational etc.) lives with exquisite K. Marxen and G Werle, Die strafrechtliche Aufarbeitung von DDR-Unrecht, 228. Ibid.

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viciousness. An internal book of instructions issued by the Ministry for State Security (MfS) in 1985 recommended to the collaborators as methods of operative intervention practices such as "finding out about personal weaknesses of persons and fabricate compromising materials", "promote distrust and mutual suspicions among members of groups", engage in the "deliberate splintering, paralyzing, disorganization and isolation of hostile-negative forces", or "undermining the self-esteem of persons by organizing failures in their professional and social life". Considerable resources were made available for the formidable task of implementing criminal justice under these constraints and with the foreseeable order of magnitude of cases. These resources included a specialized criminal investigative agency for the inquiry into government crimes of the GDR as well as white collar crimes committed in the process of unification, the Zentrale polizeiliche Ermittlungsstelle fiir Regierungsund Vereinigungskriminalität (ZERV), set up in Berlin in 1994. ZERV was designed to employ a staff of as many as 300 police investigators and to perform its task until the end of 1999. Its director, who retired at the end of 1998, was a senior West Berlin police officer, Manfred Kittlaus, who started his career as a prominent and controversial figure in the political police of West Berlin. The specialized resources for criminal prosecution also included a special prosecutor's office, the Staatsanwaltschaft II (StA II), founded on October 1, 1994, which was to open criminal proceedings based upon the investigative results of ZERV. It was headed by the eloquent and strongly committed state attorney Christoph Schaefgen and designed to employ as many 65 attorneys as special prosecutors. To complicate matters further, it must be mentioned that apart from the two centralized agencies operating out of Berlin, there were also specialized departments of the state attorney's offices of the five new states which pursued the investigation of local and regional government crimes. The vast resources, however, that were to be made available to the two Berlin-based agencies never became fully operational. Given the centralist structure of the GDR, much of the crimes in question were to be investigated in (East) Berlin, the capital of the defunct state. But given the federal structure of the old (and now, subsequent to unification, enlarged) FRG, the costs to be spent on investigation and subsequent trials were to be jointly borne by the (old) federal states. Although the Prime Ministers of the states had agreed, as early as in May 1991, to contribute substantial resources to the national task of criminal prosecution, this agreement was honored, according to the heads of both ZERV and Sta n, with symptomatic reluctance. Both Mr. Schaefgen and Mr. Kittlaus have complained vividly that their hands were partially tied by the unwillingness of the West German states to honor their contractual commitments. There were also complaints voiced by the two that the possibilities the Unity Treaty and German courts allowed for in terms of criminal prosecution of GDR government crime were severely limited. The account that Kittlaus gave in several interviews prior to his retirement at the end of 1998 was this. As resources were limited and rule of law guarantees made prosecution difficult, very few perpetrators were actually sentenced. But also inversely, as the "success in court" that any police agency depends upon as a measure of its performance was so disappointing, the Länder governments, the media and the (West German) public soon lost much of its interest in the entire enterprise of criminal prosecution and failed to provide the necessary support and material resources. Kittlaus complains about a "certain lack of interest in our work".13 The quantitative yield of the efforts of ZERV and StA II has been unimpressive indeed. As of March 31, 1999, 22 765 investigations were opened, leading to the opening of just 565 criminal court cases. Verdicts were reached in 211 cases, of which just 20 13

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Die Welt, November 30, 1998.

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cases resulted in actual prison sentences. As a rule of thumb, less than a tenth of one per cent of all investigations resulted in prison sentences. Border guards who were sentenced in court for having committed intentional homicides were, almost without exception, punished with suspended prison terms. Serious crimes such as more than 20 presumed commissioned murders perpetrated by the GDR Ministry of State Security could not be tried because the actual perpetrators could not be identified. Legal experts14 have offered the highly plausible counter-factual speculation that, had the democratic GDR existed for longer than it actually did, the criminal prosecution its government and court system had initiated during its short span of life would have resulted in considerably more numerous and more severe sentences than was actually accomplished by the unified German system. Not only has the juridical outcome of criminal proceedings remained very limited. Also the interest of the national public (more than three quarters of which are former West German citizens) in the data that became available and in the unmasking of acts and actors in the GDR remained remarkably moderate. But media interest in the juridical (ZERV and StA II) as well as broader historical data bases (Gauck and EnqueteKommission) was at best short lived. The issue of transition justice has played a somewhat marginal role in Germany, at least a much smaller one that it would have played in a separate and permanent democratic successor state of the GDR. A widely shared feeling in the West is that, as it cannot be done right, and as so much effort has led to so little outcome, it shouldn't be done at all, - "it" being the attempt to come to terms with the old regime by the means of criminal justice. This lack of a vigorous interest of Western elites in criminal prosecution is attributed by former activists of the citizen movement to a measure of latent complicity of segments of the old FRG with elites of the old GDR. In case government crimes had been prosecuted more energetically and successfully, these Western elite segments (which extend not just to Social Democrats) would be exposed and embarrassed for having sought collaboration with positively criminal counterparts in the East. Concerning ordinary citizens, the vast majority of Germans has never come close to being threatened by (to say nothing about being co-opted or hired by) Stasi or other criminal institutions of the former GDR. Also, given the highly precarious economic and labor market situation that prevails in most of the new Länder, there are more urgent matters perceived to be worthy of worrying about than the ugly realities of the defunct SED regime and its acts of repression. Here the unique German constellation plays a role that consists in the fact that the transition from state socialism took place in the form of national unification. While the future of the ongoing integration of the former two German states is widely understood to be a problem of the entire German society, economy, and polity, the past of the former GDR is perceived as a matter of mainly regional interest. The somewhat complacent and disinterested attitude of much of the (West)German public may also have to do with the perception that, in contrast to at least the Latin American and South African cases of transition justice, but arguably also those of some other CEE countries, the state crimes in the GDR were of a relatively (!) mild nature. Apart from the killings on the border since August 1961 (estimated at up to 1000 cases), homicide cases were not numerous and mostly a matter of the distant past of the 50ies, often attributed to the Soviet occupation forces rather than internal actors. At any rate, passionate feelings of hatred and painful memories of past suffering and losses are certainly intense with the direct victims, but by far not as widespread in the new Länder as they are in the successor regimes of terrorist military dictatorships such as Chile or Ar14

K. Marxen and G. Werle, Die strafrechtliche Aufarbeitung von DDR-Unrecht, 253.

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gentina. Also, the crimes of the SED dictatorships are clearly less horrendous, by orders of magnitude, than the crimes of the Nazi regime that are and remain the central focus of any reading of German history of the 20th century. It is almost as if so much attention is absorbed by the Nazi regime that little remains to be spent on the East German SED dictatorship. The arguably lopsided distribution of attention and interest is further conditioned by the widely shared perception that it is neo Nazi ideology and mobilization which constitutes a persistent threat to liberal democracies, whereas dictatorial state socialism, particularly after the end of the Soviet Union, enjoys much less of a prospect for renaissance. Three players of very different size and significance are active within this discursive field of German transition justice, First, the forces of the old GDR regime (now being lead by the well organized successor party PDS that contends rather successfully for the position of the second largest party in several of the new Länder as well as the former East Berlin). These forces have understandably very limited interest in having any light thrown on the dark side of the state socialist state; they are rather busy in "renormalizing" that state retrospectively. Second, the forces of the former GDR opposition that have been the main target of state repression and pursue an interest in criminal sanctions as well as in engraving the malaise of the old regime and of the suffering it has caused into the nation's collective memory, mainly for preventive and reconciliatory purposes. This category is by far the least numerous and resourceful of the three. To be sure, it is supported by (relatively small) numbers of West German politicians, academics and intellectuals who, for a variety of motivations, consider the in-depth exploration of state socialist regime's crimes a national priority. But it is also the case that former opposition activists and their insistence upon vigorous practices of transition justice cannot claim representativeness for the GDR population in general, as the vast majority of this population had been "neither for nor against" the old regime or willing to undergo risks by offering opposition or even resistance. This majority of the GDR's population was understandably reluctant to support a process as a result of which it would have been exposed as having engaged in practices of opportunistic adjustment. On the other hand, some limited support for tough measures of criminal justice can be motivated by the wish to unload one's own feelings of guilt upon individuals within the leadership. Thirdly, and by far most important, the forces of the West German political party system that managed to organize a grandiose political takeover in the period between the first (and last) free elections on March 19, 1990 and the final dissolution of the GDR on October 3rd of that year. Within this triangular configuration of forces, the citizen movements of the GDR, which credit themselves with having brought down the regime through their peaceful "revolution" in November 1989, have been deprived of any distinctive and visible political role. Many of the activists have been absorbed into the Eastern wing, itself highly precarious concerning their political fates in the new Länder, of the Green party ("Bündnis 90"). Others turned to the Social Democrats (SPD). In contrast to some other post-authoritarian cases of transition, the opponents and targets of the old regime do not, as a coherent political formation, play any significant role in the new regime, although dozens of former opposition activists are now holding important political and other positions across the entire political spectrum and within a variety of institutional sectors. But there is hardly any charismatic figure (such as Bishop Tutu or Vaclav Havel) nor movement (such as the Madres de la Plaza de Mayo in Buenos Aires) in Germany which would represent a credible and authentic account of the suffering that was caused by the old regime and the moral demand for sanctions and rehabilitation. To summarize the experience from criminal prosecution, the dilemma is this: The more scrupulously the tools of criminal justice are being employed for the sake of le-

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gitimacy, the less effective the sanctioning mechanism becomes. In spite of the extension of the statute of limitation to 1999 adopted by the German legislature, it is now clear that the yield of the efforts of prosecution in terms of criminal sanctions will remain extremely limited. It also became evident that the interest of political and juridical elites, the media, and the public in general in issues of both punishing and rehabilitation has been declining. At the same time, the successor party PDS and its constituency have perversely profited from what could be read as an implicit demonstration that virtually nothing can be shown to be wrong with the old regime in terms of criminal law. Also, the following dilemma is evident: The maximum that can possibly be done within the constraints of rule of law and non-retroactivity is still way below the minimum that would have to be done in order to satisfy the small but vocal groups of those who have suffered most under the old regime. As a result of the sobering experience of criminal justice, two overall developments took place in the course of the 90ies. For one thing, disappointment and frustration spread among those who were interested in criminal prosecution because of the difficulties of conducting "successful" trials. Second, procedures other than criminal prosecution were increasingly relied upon and proposed as a method of sanctioning actors of the old regime and a means to come to terms with its residues. 7. Administering Archives. The "Gauck Agency" While the due process of criminal prosecution often runs into the problem that acts are known to have taken place while the authors of those acts cannot be identified with the degree of accuracy that is called for by rule of law principles, the problem the Gauck agency is mandated to solve is the reverse one. Here, particular actors (as defined by their organizational affiliation, the duration of this affiliation, and hierarchical position within the GDR state apparatus) are to be sanctioned without the need to prove that they have committed particular acts or inflicted a particular damage to specific fellow citizens. Sometimes, and that is doubtless one of the legislative intentions behind the StUG, the information made available by the agency will lead to third party sanctioning of the persons to whom this information pertains. The nature of these indirect sanctions, as well as the procedural principles applied, is quite different from ordinary criminal law. While in criminal law a couit makes a decision (that can be appealed under most circumstances) which, if upheld, causes a state-organized sanctioning (fines, imprisonment), the sanctioning that is merely triggered by the Gauck agency and the law it is based upon (StUG) is implemented through an independent decision of third parties and their autonomous practices of disapproval and disqualification. The agency exercises influence, not authority, over the severity and incidence of sanctions. The output of the agency's activity is, in other words, not a sentence, but a flow of information addressed to (or selectively made available to) particular actors. What happens as a consequence of the dissemination of information is beyond the authority and responsibility of the agency to determine. Arguably, the most significant and most effectively cathartic of these consequences are those that take place in a framework of private encounters between former oppressors and the victims who have found out about them and their activities from the Stasi files. These intense and often painful confrontations cannot be ordered by administrative fiat, nor can they be monitored by state agencies or the public. Hence these types of sanctions are caused, but not controlled by state authorities. Apart from the cases in which the information collected by the agency serves the initiation of criminal prosecution, the impact of the information made available upon the person the information is about remains to be determined by actors outside of the court

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system. Even if public sector agencies execute the sanctions, they are not mandated by (criminal) law to do so. For instance, upon learning that a particular person has been an unofficial collaborator of Stasi, that person's employer may or may not refuse to employ or dismiss the person in question. To be sure, the law of 1991 (StUG) that establishes the Gauck agency provides for the possibility to appeal in labor courts the negative consequences that private or state actors draw from the information obtained. What these courts, however, determine is not whether or not the claimant has committed particular objectionable acts, but whether or not these alleged acts provide sufficient reason to the respective employer for dismissal or discrimination in hiring. All the agency itself does is making accessible information to large but specified categories of actors who are entitled by law to receive such information, parts of which can (and are in fact likely to be) used as reasons for sanctioning by public or private sector recipients. Thus the agency can best be described as a hybrid of a public archive (distributing information) and a investigative agency triggering punishment. It differs from the first in that the information made available is, at least in part, intended to trigger the action of third parties, and it differs from the latter as crimes are not proven according to the strict procedures of criminal law, the presumption of innocence does not apply, and practical repercussions, such as civic disqualification, are not apportioned by state-controlled procedures and institutions (such as fines and prisons). It is for this hybrid nature of the Gauck agency that it has always been controversial between those who appreciate its alleged "lustration"15 effect of coming to terms with a painful past and those who find it violating one of the most fundamental principles the new regime is supposedly based upon, namely the rule of law with its implications of non-retroactivity, the presumption of innocence, and a guaranteed access to the court system.16 The agency enjoys a legal monopoly over the information contained in the vast files the old regime's repressive agencies have left behind.17 The law regulates in much detail how the wealth of information is to be used, i.e. what kind of information is to be made accessible to whom, upon whose initiative, and in what form. Categories of recipients include those of the people subject to observation, third parties, the observers themselves, their actual or potential employers, and the general public which is to be served through extensive research, documentation and educational activities. One of the purposes of the agency's information output is to provide data bases for criminal prosecution. Also, the agency conveys information to public sector agencies on people to be hired for public office. In this case, the agency initiates the flow of information "without being requested to do so" by eventual recipients. In other cases it provides information upon request, particularly in the hundreds of thousands of cases when people turn to the agency in order to find out what has been reported upon them, and by whom. Some people may be relieved to learn that nothing has been reported upon them and that the respective suspicions they may have held against others were unsubstantiated. Some people may learn that other people (including apparent friends, family members, superiors, neighbors, colleagues etc.) have actually reported on them, and what - truthfully or 15

16 17

Transitional Justice in the German Democratic Republic and in Unified Germany

Claus Offe and Ulrike Poppe

It is worth noting that the term "lustration" is in no way etymologically related to the words "lux", "lucere" or "enlightenment", as is sometimes claimed in defense of the practises associated with "lustration". Instead, the term comes from a Latin root that means "ritual cleansing". M. Brandenburger, "Stasi-Unterlagen-Gesetz und Rechtsstaat". In a comparative perspective, it must be noted that the investment in information gathering and research that went into the elucidation of politics and society of the GDR is probably unparalleled by any other case. This is so because a skilled manpower, numbering several thousand people, was quickly made available by the West German government after the breakdown to do the job. Also, the chances of interested parties and actors of the old regime to destroy sources and conceal information were probably slimmer than in all other cases. Given this unique opportunities for throwing light on the matter, it is sobering to see how much remains in the dark.

265

otherwise. Others may learn that employees (or people considered for jobs) have been involved in spying activities. And still others may just benefit by forming an enlightened judgment about the grim realities of the day-to-day operation of the old regime. Finally, some of those being affected by the decisions others draw from information obtained through the agency may feel that the files on which the information is based do grossly misrepresent the realities of their own past. In this case, complaints of incorrect information, unjust exposure, and unfair sanctions third parties initiate in response to the data obtained tend to be particularly bitter. These complaints are difficult to process in court. Even if claimants' dismissals from jobs can be reversed through favorable decisions of labor courts (as has often been the case), the substantive question of whether or not the person in question has actually done what the files seem to document is often impossible to settle in court, as the files do not allow such proof by strict rule-of-law standards. Hence the danger that aliquid semper haeret. The consequences of the agency's activities of gathering and distributing information have been as highly diverse as the evaluation of these consequences remains controversial. Giving victims access to their files, as well as making them aware of the actors who helped to generate these files, is widely agreed to have an often shocking and painful, but generally cathartic function. Such favorable evaluation is also often attached to the research and educational function of the agency, although concerns have been voiced that research on important matters of recent history should be left, in the interest of academic freedom, to academic institutions rather than being performed by state operated agencies. Sanctions initiated against spies and collaborators are more intensely contested, not just from the point of view of those directly affected by these sanctions. Critical observers have taken issue with two kinds of perverse effects of the poorly controlled process of "civic" sanctioning. For one thing, people may be sanctioned (e.g., through dismissals or the demolition of their reputation) who have not, by any standard of fairness or proven evidence, deserved to be punished. For the other and conversely, large numbers of people who have deserved to be sanctioned (at least according to the standards that make up the agency's raison d'etre) actually manage to escape punishment. There is an abundance of examples of either of the two cases. While the first category, the "false positives", is hard to prove, the false negatives (failure to sanction persons who have deserved such sanctions according to the letter of the Unity Treaty) are problematic in terms of the their effects upon the emotions of victims. Not only are people who are dismissed from public sector employment because of uncontested Stasi involvement perfectly free to try (as a rule, successfully) their luck in the private sector. It is also the case that whether or not public sector workers (such as policemen) are actually dismissed or denied employment as a consequence of relevant information supplied by the agency is a matter that is often determined not by the charges raised against them, but ultimately by the contingencies of local and sectoral labor markets and other discretionary considerations entertained by public sector employers. For instance, 7,300 persons, or 12 per cent of the 62,680 policemen employed as civil servants (i.e., in the highly privileged and secure status of German Beamte) by the state governments of Berlin and the five new Länder are known to have been working for the Ministry of State Security as regular or unofficial collaborators and have been re-employed in spite of the fact of this being known.18 The proviso of the act of 1991 that sanctioning must take place on a case-by-case basis has allowed them to successfully appeal to labor courts, claiming excuses such as young age or but reluctant involvement in Stasi activities. But often such appeal was not even necessary for them to initiate, as state governments, to an extent that differed from state to state and from 18

Frankfurter Allgemeine Zeitung, February 14, 2000.

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Claus Offe and Ulrike Poppe

ministry to ministry, chose to ignore the files and extended clemency to police personnel applying for jobs according to the demand and supply situation that prevailed at the time in particular labor markets. Such inconsistency and unevenness of the implementation of sanctions is sometimes taken as proof of the harmlessness of the practices of the Gauck agency, or, more precisely, of the third parties that put to use the information acquired through the agency. But instead of such benign assessment, the opposite conclusion can well be drawn because the rule-of-law principle is severely violated when even in the highly sensitive field of police services - the rule that Stasi involvement must be sanctioned is frequently, arbitrarily, and opportunistically suspended. 8. Exploring the Past. The Commission of Inquiry A third instrument of performing the "work of coming to terms" (Aufarbeitung) with the GDR past is, besides the criminal courts and the Gauck agency, the Commission of Inquiry of the German Bundestag. It was chaired by Rainer Eppelmann, a member of parliament and deputy of CDU who is, like Gauck, a theologian and opposition activist from the former GDR. The commission's statutory mandate was to explore and evaluate major institutional sectors and policy areas of the defunct regime and its history of 40 years. The focus is thus not upon actors and acts, but upon structures, events, strategies and developments which cannot be attached to individual actors. In a little more than two years of intensive work (from Spring of 1992 to Summer of 1994), the Commission held 76 sessions, heard the testimony of politicians, GDR opposition activists, academic experts, and victims. It commissioned dozens of detailed analyses of experts. The major themes of inquiry were the power structure of the old regime, the role of the state socialist ideology, the role of the repressive state apparatuses, the policies towards the West German state and intra-German relations, the role of organized religion within the GDR, forms of oppositional activities, the Ministry for State Security, and policy considerations concerning the question of how to deal with the legacies and memories left behind by the "two dictatorships in Germany" in the 20th century. This major and comprehensive project resulted in the publication of 18 volumes (15,187 pages) of testimony, documentation, analysis, and political evaluation plus two plenary debates of the Bundestag. A follow-up commission has been installed that is charged with inquiring into the problems and prospects of German unification. If the Gauck agency is a hybrid of an archive and a criminal court, the commission headed by Eppelmann can perhaps best be described as a hybrid of a political conference and a huge research project on contemporary history. In the very first paragraph of her introductory note to the 18 volumes, the president of the Bundestag tries to refute the suspicion that what is being published here is an "official", if not a "partisan" and "preceptorial" writing of history. Such suspicion is not supported by the politically diverse composition of testimony and expertise, but, if anything, by the virtually exclusive focus upon the repressive nature of the regime as well as the intention to appreciate the suffering of victims and to draw lessons which are capable of "strengthening democratic consciousness". Unsurprisingly, the arguably less objectionable institutional sectors of the regime (such as its health system) do not figure at all in these volumes. More curiously, the economic and ecological disasters the old regime has left behind are generously bypassed, except to the extent they triggered the activity of oppositional movements. Due to the sheer quantity of the materials printed here and also due to the relatively early stage of scholarly exploration of the GDR regime at which the volumes were compiled, the attention these 18 volumes were able to generate has been neither widespread nor lasting.

Transitional Justice in the German Democratic Republic and in Unified Germany 9.

267

Additional Policy Options

The three policies of transition justice discussed so far - criminal prosecution, Stasi archives, historical inquiry with educational purposes - have accomplished a great deal in making the past transparent, defining a normative perspective as to why its essential features must be rejected, and in affording comfort and satisfaction to victims. However, in unified Germany as a whole, the topic of coming to terms with the state socialist past is of an almost marginal significance. It was the past of a fraction of the nation, and the vast majority has no personal and direct access to the realities of that past. Moreover, the present problems of the new Länder, ranging from record rates of unemployment to high levels of violent xenophobia to manifest signs of poor political integration as indicated by the strong electoral performance of PDS, seem to largely absorb the attention that can be mobilized for the affairs of the new Länder. Frustration with the failure of both the courts and the Gauck agency to sanction those responsible for the old regime to the extent that had been hoped for seems to have contributed to a loss of attention and support for these forms of transition justice. Even at the early stage of 1990-91, before (in December 1991) the law was passed that established the Gauck agency, alternative approaches in addition to criminal prosecution and civic disqualification were widely discussed in the East German public. Among these alternatives the idea of holding "tribunals" stood out. Such tribunals, as opposed to criminal courts, would be made up of national and international experts and prominent figures whose moral qualities were undisputed. Instead of punishment or even revenge, their function was conceived to be moral condemnation without individual verdicts, with the hoped-for consequence of a society-wide catharsis and the sharpening of moral sensitivities in the public-at-large. The attractiveness of this idea was seen in the possibility that East Germans themselves, rather than West German legislators and judges, would be given the chance of initiating autonomous acts of finding out the truth and hence of self-purification. But in the absence of charismatic figures (such as Vaclav Havel or Bishop Tutu) in East Germany who would be able to perform this highly visible and potentially intensely controversial role, it was feared that the practice of tribunals might do more harm than good because of the suspicion of arbitrariness that tribunals in general as practices of informal justice are likely to trigger.19 The concern was that justice cannot be done, at least not widely recognized as such, if it is done, by "self-appointed" and therefore possibly biased judges. Nor was it clear how tribunals could induce significant actors to give truthful and comprehensive testimony, which is a matter that courts can perform through formal investigations, hearings, and oaths and that even the South African Truth and Reconciliation Commission (TRC) could perform through its mandate to grant impunity in return for true testimony. In fact, tribunals have never been tried as a form of coming to terms with past injustices (except in the context of military defeat, as in Nuremberg), whereas tribunals seem to perform best if the injustice under scrutiny is a present one (as in the case of the Russell tribunal investigating the American war in Vietnam in the seventies). As a final possibility, "amnesty" is being proposed, sometimes in a fuzzy sense that shades into amnesia, as neither the clarification of acts and responsibilities nor the consent of the victims or their representatives ("forgiveness") is consistently deemed a prerequisite by proponents of amnesty. In 1998-9, i.e. immediately prior to the conclusion of ZERV and StA II, the former GDR civil rights activist Friedrich Schorlemmer (another Protestant theologian) advocated amnesty in 1999 as the lesser evil, given the inconsistencies, disappointments, and emerging conflicts over criminal and other forms of 19

See the essays in A. Schönherr, Ein Volk am Pranger.

268 Claus Offe and Ulrike Poppe sanctioning practices. But amnesty can also be viewed as a necessary condition to motivate actors of the old regime to enter into forms of communication, confession, and critique of the old regime that they would never consider appropriate under the threat of criminal punishment or civil disqualification. There are various forms of amnesty, some of which are the opposite of amnesia. Amnesty can be used as an alternative to criminal prosecution or as a subsequent step. Furthermore, if amnesty is obtained individually (rather than collectively or categorically), if it must be applied for by individuals (rather than granted unilaterally by the state), if it is limited to less serious categories of crimes (excluding all homicides), and if it is granted as a reward for truthful confessions and the public expression of regret, it might well function as a serious instrument of achieving transition justice and its intended effect, namely the "reconciliation" (meaning just the recognition that all fellow citizens are entitled to the enjoyment of equal rights) of the citizenry of new democracies and thus the stabilization of the new regime Such reconciliation and stabilization is probably the uncontroversial standard underlying the ongoing controversies over the appropriate methods of administering transition justice.

Transitional Justice in the German Democratic Republic and in Unified Germany 269 Bibliography Borneman, J., Settling Accounts. Violence, Justice, and Accountability in Postsocialist Europe, Princeton UP, 1997. Brandenburger, M , "Stasi-Unterlagen-Gesetz und Rechtsstaat", Kritische Justiz 28, 3 (1995). Deutscher Bundestag, Materalien der Enquete-Kommission 'Aufarbeitung von Geschichte und Folgen der SED-Diktatur in Deutschland', Nomos Verlag und Suhrkamp, 1995, 18 volumes. Elster, J., "Coming to terms with the past. A framework for the study of justice in the transition to democracy", Archives Europeennes de Sociologie 39, 1 (1998). Gauck, J., Die Stasi-Akten. Das unheimliche Erbe der DDR, Rowohlt, 1992. Günther, K., "Der strafrechtliche Schuldbegriff als Gegenstand einer Politik der Erinnerung in der Demokratie", Amnestie oder die Politik der Erinnerung in der Demokratie, ed. G. Smith and A. Margalit, Suhrkamp, 1997. Jakobs, G., "Vergangenheitsbewältigung durch Strafrecht? Zur Leistungsfähigkeit des Strafrechts nach einem politischem Umbruch", Vergangenheitsbewältigung durch Recht, ed. J. Isensee, Duncker & Humblot, 1992. Lampe, E.-J., (ed.), Die deutsche Wiedervereinigung. Vol. Ill: Die Verfolgung von Regierungskriminalität der DDR nach der Wiedervereinigung, Carl Heymanns Verlag KG, 1993. Lübbe, H., "Der Nationalsozialismus im deutschen Nachkriegsbewußtsein", Historische Zeitschrift 236, 1 (1998). Lüdersen, K., Der Staat geht unter - das Unrecht bleibt? Regierungskriminalität in der ehemaligen DDR, Suhrkamp, 1992. Marxen, K. and G. Werle, Die strafrechtliche Aufarbeitung von DDR-Unrecht, de Gruyter, 1999. Misztal, B., "How not to Deal With the Past. Lustration in Poland", Archives Europeennes de Sociologie 40, 1 (1999). Offe, C , Varieties of Transition, Polity Press, 1996. Pampel, B., "Was bedeutet 'Aufarbeitung der Vergangenheit'?", Aus Politik und Zeitgeschichte, B 1-2, January 6,1995. Richter, M., Die Staatssicherheit im letzten Jahr der DDR, Boehlau, 1996. Rosenberg, T., The Haunted Land. Facing Europe's Ghosts after Communism, Vintage, 1995. Sa'adah, A., Germany's Second Chance. Trust, Justice, and Democratization, Harvard UP, 1998. Schaal, G. and A. Wöll, Vergangenheitsbewältigung, Nomos, 1997. Schönherr, A., Ein Volk am Pranger? Die Deutschen auf der Suche nach einer neuen politischen Kultur, Aufbau, 1992. Schwartz, H., "Lustration in Eastern Europe", Parker School Journal of East European Law, 1,2(1994). Smith, G. and A. Margalit, Amnestie oder Die Politik der Erinnerung, Suhrkamp, 1997. Stark, C , W. Berg and B. Pieroth, Der Rechtsstaat und die Aufarbeitung der vorrechtsstaatlichen Vergangenheit, Walterde Gruyter, 1992. Tucker, A., "Paranoids May Be Persecuted. Post-totalitarian Retroactive Justice", Archives Europeennes de Sociologie 40, 1 (1999). Unverhau, D., Lustration, Aktenöffnung, demokratischer Umbruch in Polen, Tschechien, der Slowakei und Ungarn, Lit Verlag, 1999. Wassermann, R., "Zur Aufarbeitung des SED-Unrechts", Aus Politik und Zeitgeschichte, B4 January 22, 1993.

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Unfinished Business. Racial Junctures in US History and Their Legacy

Contents Introduction 1.

The Creation of Chattel Slavery

2.

The Legal Entrenchment of Slavery

3.

The First Quasi-Reconstruction

4.

The Second Quasi-Reconstruction

5.

Addressing the Legacy

271 272 279 284 290 294

Introduction This paper concerns the creation of racial hierarchy in the US, its perpetuation, and its persisting consequences. The "racial junctures" are brief periods in US history that saw some crucial developments - one period in each of the four centuries since British colonies were established in North America. I focus here on decisions that affected African Americans directly because their enslavement and subsequent history most profoundly determined racial stratification in the US.2 In the first three of these periods, racial stratification was embraced and alternative paths rejected. When Africans first came to the colonies, they did not enter chattel slavery, for there was no such system; it had to be created. Social mobility was not at first foreclosed to African laborers, but their prospects were violently altered as colonial legislatures constructed the statutory framework for chattel slavery, to which they consigned people of color (Section I). After the War for Independence, the slave system was protected by the new Constitution. The concessions made to slavery exceeded what was required for a constitutional settlement under the most unfavorable assumptions, and it is possible that such concessions could have been avoided entirely (Section II). © 2002 by David Lyons. All rights reserved. For comments and suggestions, I am grateful to Gerald Leonard, Matthew Lyons, Sandra Lyons, David Seipp, and participants in the seminar of Boston University's Institute on Race and Social Division and in the faculty workshop of the BU School of Law, where earlier versions of this paper were presented. For research assistance in connection with this paper or the course that engendered it, I thank Robert Toomey, Marianne Geula Smith, Sheri Lewis, William Andrews, Nir Eisikovits, Matthew Smith, Travis Hubble, Nathan Hammons, and Alyssa Slater. I shall not defend this claim here. A defense might begin with the fact (touched on below) that racial categories largely displaced religious ones in the creation of a system based on slavery. A more complete study of related developments would review the decisions that most directly concerned Native Americans, Mexicans, and various immigrant groups.

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David Lyons

After the Civil War, slavery was formally abolished, but decisions were very soon made that foreclosed a genuine reconstruction, well before the federal government tacitly sanctioned the reestablishment of an oppressive race-based social order (Section III).3 Quick and inspiring histories that are familiar to educated Americans tend to neglect or misrepresent these stages in the development of American race relations. This paper reviews that history more closely, but it offers no new historical revelations. The several junctures have been studied separately by historians, and this paper's descriptions of them do not, I believe, diverge from contemporary understanding. The hope is that, by viewing them together and considering their implications systematically, we may gain a better measure of the history and issues we have inherited. The first point, then, is that the deeply rooted racially stratified character of the US was not inevitable. I do not mean merely that we can now, in retrospect, imagine different directions that might conceivably have been taken. My point is rather that alternatives were understood well enough by those who made the relevant decisions. Morally more desirable alternatives would no doubt have been difficult to achieve, in part because the interests of those who would be adversely affected by the decisions actually made - an Americans most directly - were not represented by those who made them the colonial elite, the founders of the republic, et al. But that sort of practical difficulty is not relevant here. Compare the examples to be discussed below with a more recent case. By the time of the 1942 Wannsee conference in Nazi Germany, it had been decided to exterminate Jews, Roma, and others. But the conference participants understood the alternative well enough, and the road taken was not so unavoidable as to exclude them, and others, from responsibility for genocide. Second, my concern here is not with the blameworthiness of specific individuals but with the responsibility of continuing political entities. The relevant decisions were made on behalf of, and thus by, governments such as the United States. The principal responsibility for rectifying any persisting injustice lies, therefore, with the nation as a whole. I do not mean to prejudge the responsibility of non-governmental entities, be they individuals or corporations; they are simply not the focus here. Third, it is arguable that the pattern persists - that something like a fourth racial juncture occurred in the last quarter of the 20th century. America then faced its most promising opportunity to eliminate the legacy of slavery and Jim Crow, and it has left the racial hierarchy substantially undisturbed (Section IV). In the final section (V) I discuss some principled approaches to addressing the persisting legacy of slavery and Jim Crow. These include the promotion of democracy, compensatory or reparative justice, and the provision of a fair share of life prospects for each of our society's children. Given the legacy of slavery and Jim Crow, it seems clear that any serious attempt to realize such ideals would have radical practical implications. 1.

Racial Junctures in US History and Their Legacy

American colonies. After all, those Africans were not voluntary immigrants but were purchased. This suggests that they were property, could be bought and sold, were destined for perpetual servitude, and their children would suffer the same fate. Furthermore, this importation of Africans, while a new feature of the young Virginia colony, was not a novel development in the Americas. As the British colonists were well aware, the shipment of slaves from Africa to the Americas had begun a century earlier. (African slaves had even earlier been brought to Europe, and some had been brought to Britain.) The exploitation of slaves from Africa was an established aspect of Spanish and Portuguese enterprise in the Americas. In time, African slavery would become the economic engine of the North American economy, providing the single most important basis not only for Southern agriculture but also for shipping, industry, and finance generally. In 1619, however, the Virginia colonists had just begun to learn how they might survive, and that they might even prosper, by cultivating tobacco as a cash crop for export. For that purpose, agricultural laborers were needed. Virginia planters initially relied primarily on European "indentured servants" who contracted to work for a period of years in return for their passage to America. But the conditions of indentured servitude were typically harsh enough and the mortality rate of servants was high enough to give pause to those potential servants who had a choice in the matter. Inducements for potential servants to immigrate had to be enhanced, and the costs of importing servants from Britain increased considerably.7 When, in the last third of the 17th century, Britain became a major participant in the slave trade, the purchase of an African slave began to seem economically more attractive to Virginia planters than the price of a temporary servant. Ex-servants' rights to "freedom dues" and their need for land of their own at the termination of their service, as well as their propensity to rebel violently in pursuit of those interests against the landed colonial establishment, increased the attractiveness to planters of substituting slave for indentured labor. By the end of the 17th century, Virginia's labor force was shifting from European indentured servants to African slaves. The same applies to Maryland, where tobacco could likewise be cultivated profitably. Before long, the Carolinas, where conditions favored rice and indigo plantations, imported substantial numbers of African slaves.8 The development of chattel slavery in the British colonies was more complex than such a capsule history suggests. For one thing, many European immigrants came without indentures and were auctioned at dockside upon arrival. So talk of "buying" Africans from the Dutch ship in 1619 could be misleading. Furthermore, we can find no reference to "slaves" in Virginia records prior to 1659.9 We also know from case reports as late as the 1670s that some servants of African ancestry served only for limited periods under indentures and could use the courts to secure their freedom as well as compensation for service beyond the period for which they had contracted.10 None of that would have been possible if the claimants had been chattel slaves.

The Creation of Chattel Slavery*

In 1619, "20 and odd Negroes" were bought from a Dutch ship in Jamestown.5 It is plausible to suppose that this was the beginning of chattel slavery in the British North

6 7 8

3

4 5

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Although judicial decisions tended to undermine Reconstruction legislation and constitutional amendments, I shall say little about them here because it would be difficult to establish that they were calculated to promote such stratification. I consider only Virginia here. That colony was the first to import Africans for labor and it became the leading colony with a slave-based economy. S.M. Kingsbury, The Records of the Virginia Company of London, 243.

9

10

G.B. Nash, Red, White, and Black, 144-51. R. Blackburn, The Making of New World Slavery, 230, 256-8; P. Kolchin, American Slavery 16191877, 8-10; G.B. Nash, Red, White, and Black, 51. I. Berlin, Many Thousands Gone, 109f, 143f; R. Blackburn, The Making of New World Slavery, 315-22; P. Kolchin, American Slavery 1619-1877, 10-14; G.B. Nash, Red, White, and Black, 154-8. A 1659 Virginia statute (Act XVI) offered incentives for the importation of "Negro slaves", and the provisions of a 1660 Virginia statute (Act XXII) assume that some "Negroes" are servants for life (A.L. Higginbotham, In the Matter of Color, 34). See, e.g., Re Edward Mozingo (1672) and Moore v. Light (1673) in P. Finkelman, The Law of Freedom and Bondage, 13.

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David Lyons Racial Junctures in US History and Their Legacy

Without knowing more, however, we might regard the first two facts as inconclusive and the cases involving African indentured servants merely as evidence that Virginia encompassed some exceptional arrangements. That would not be surprising; after all, the slave colonies and slave states always included free people of color. But we do know more. The records of colonial legislation imply that the legal institution of chattel slavery simply did not exist in 1619 or, for that matter, through most of the 17th century in Virginia, but was deliberately constructed during the later decades of the 17th century by those who ruled the colony. The Virginia legislature began the process with this 1662 enactment: Whereas some doubts have arrisen whether children got by any Englishman upon a negro woman should be slave or free, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shalbe held bond or free only according to the condition of the mother ..." 12 The uncertainty referred to in the statute is not the result of legal ignorance. The enactment represents a deliberate departure from the common law. The Virginia legislature evidently decided that servitude for Africans should become inheritable - an essential feature of chattel slavery in the colonies and the US. Seen in the context of existing English law and subsequent Virginia legislation, the enactment reveals a legislature that is beginning to create a body of slave law. Unlike Spain and Portugal, Britain had no laws regulating slavery, and thus the British colonists, unlike their Spanish and Portuguese counterparts, had no body of slave law, or even any clearly relevant legal traditions, upon which to draw when they began to import Africans to labor in their American colonies.14 The colonists had the legal freedom to create such laws, regardless of prevalent legal doctrine within Britain. Unlike the Spanish and Portuguese colonies, which were projects of their respective home governments, the British colonies began as private ventures which were chartered by the Crown. As royal domains, they were not subject to parliamentary control until the middle of the 18th century. They were free to create their own laws, subject only to a possible Crown veto. 1516 And neither the Crown nor, later, Parliament was motivated to interfere with such legal developments in the colonies, whose slave economies engaged the British in quite profitable activities, including the slave trade itself. Another consideration suggests that the first Africans brought to Virginia could not all have been treated as slaves. As a result of prior contact with Europeans, some Africans had been baptized, and Christian religious doctrine made them ineligible for enslavement.17 There was uncertainty among the protestant churches as to whether the 11 12 13 14

15 16 17

Act XII, W.W. Hening, The [Virginia] Statutes at Large, 170. Legislative excerpts reproduced here follow the spelling and punctuation of the originals. Henry Swinburne's Brief Treatise of Testaments and Willes, 109f (T.D. Morris, Southern Slavery and the Law 1619-1860,43; R. Blackburn, The Making of New World Slavery, 265f). English case law itself vacillated, from the 16th through the 18th century, over whether the common law allowed anyone to hold a slave in Britain - from Cartwright's Case (1569) to Somerset v. Stewart (1772) and King v. Inhabitants of Thames Ditton (1785). J.A. Bush, "The British Constitution and the Creation of American Slavery". In 1624 the King revoked Virginia's charter and it became a Crown colony, but that made no effective difference to the colony's autonomy. This doctrine, traceable to the Crusades, accompanied Europeans in their later colonial adventures in Africa and the Americas. Thus in the 15th century Portugal and Spain were authorized by the Pope to kill or enslave "infidels", to destroy or appropriate their property, and to assume jurisdiction and monopolistic economic control over such lands as had not yet been claimed by other

275

baptism of someone who was already a slave had the same effect.18 That helps to explain a 1667 enactment of the Virginia legislature: Whereas some doubts have risen whether children that are slaves by birth, and by the charity and piety of their owners made pertakers of the blessed sacrament of baptisme, should by vertue of their baptisme be made free; // is enacted and declared by this grand assembly, and the authority thereof, that the conferring of baptisme doth not alter the condition of the person as to his bondage or freedome ..." This measure permitted not only the continued enslavement of someone after baptism but the enslavement of Africans who became Christians before they arrived in

America.20 Conditions for indentured servants in the rigidly hierarchical Virginia colony have been characterized as "nightmarish"21, but there were presumably limits to the disciplinary methods used by masters. One might expect lesser protections for chattel slaves, who, unlike indentured servants, were the full property of masters. Furthermore, the extension of servitude was a punishment available against indentured servants but not against those who served for life. It was therefore natural for the Virginia legislature to accommodate the difference in duration of servitude by permitting more severe corporal punishments for those whose servitude could not be extended. One of its principal measures was the following enactment of 1668: Whereas the only law in-force for the punishment of refractory servants resisting their master, mistris or overseer cannot be inflicted upon negroes, nor the obstinacy of many of them by other than violent meanes supprest, Be it enacted and declared by this grand assembly, if any slave resists his master (or other by his masters order correcting him) and by the extremity of the correction should chance to die, that his death shall not be accompted ffelony, but the master (or that other person appointed by the master to punish him) be acquit from molestation, since it cannot be presumed that prepensed malice (which alone makes murther ffelony) should induce any man to destroy his owne estate.22 23

This statute gave owners maximum physical control over those held in lifetime bondage and thus adds to the law another aspect of what we know as chattel slavery. As the enactment itself suggests, it is unlikely that a master could be proved to have delib-

18 19 20

21 22 23

Christian nations. In somewhat similar terms, Henry VII authorized the Cabots' voyage across the Atlantic. See Bull Romanus Pontifex of Pope Nicholas V, January 8, 1455 (S.Z. Ehler and J.B. Monall, Church and State Through the Centuries, 144-51); Bull Inter Caetera of Alexander VI, May 3, 1493 (F.G. Davenport, European Treaties Bearing on the History of the United States and its Dependencies, 60-3); The First Letters Patent Granted to John Cabot and His Sons, 5 March 1496 (J.A. Williamson, The Cabot Voyages and Bristol Discovery under Henry VII, 204f)R. Blackburn, The Making of New World Slavery, 231f, 240, 250; A.L. Higginbotham, In the Matter of Color, 20f, 36f; P. Kolchin, American Slavery 1619-1877, 15. Act III, W.W. Hening, The [Virginia] Statutes at Large, 260. The statute eliminated a consideration that discouraged masters from permitting their slaves to convert, which was seen by some as desirable since Christian teaching was regarded as aiding in their control (A.L. Higginbotham, In the Matter of Color, 37; P. Kolchin, American Slavery 16191877, 550- Nash reports, however, that many slaves associated baptism with emancipation and that slaveowners were worried that baptism would make slaves less subservient (G.B. Nash, Red, White, and Black, 187). G.B. Nash, Red, White, and Black, 51. Act I, W.W. Hening, The [Virginia] Statutes at Large, 270. Although this enactment identifies "negroes" as those bound to serve for life, other evidence, considered above and below, implies that some of African birth or ancestry did not serve for life and that others sometimes did.

276 David Lyons erately or maliciously killed a slave. As it even more clearly indicates, the owner's property interest in a slave would in any case inhibit a master's use of lethal force as a method of control.24 Thus three familiar features of chattel slavery in North America have been provided by the Virginia legislature. A slave code is beginning to take shape. But the legislation so far fails to address one crucial feature of chattel slavery in America: its racial dimension. With some difficulty, the Virginia legislature addresses the issue. The difficulty stems from an evident change in the colonists' orientation: having begun with the assumption that non-Christians alone are eligible for slavery, they must now employ different social categories in order to construct a color-coded social system. The first legislative attempt is made in 1670: ... It is resolved and enacted that all servants not being Christians imported into this colony by shipping shalbe slaves for their lives; but what shall come by land shall serve, if boyes or girles, untill thirty yeares of age, if men or women twelve years and no longer.25 Thus, non-Christians who come by sea are condemned to lifetime servitude, and that condition is reserved for them alone. The non-Christian servants who come by sea are, presumably, Africans. If this is what the statute's drafter had in mind, its point is to consign Africans alone to lifetime servitude.26 Subsequent legislation indicates that in 1670 the legislature had failed to consider complications, which must soon have led to unintended consequences. Africans might already be Christians when they enter the colony and they might also enter it from an adjacent colony, and thus by land, rather than by sea. These complications are explained by a 1682 enactment that replaced the 1670 statute. The most directly relevant segments of the later enactment reads as follows: ... for as much as many negroes, moors, mollattoes and others borne of and in heathenish, idollatrous, pagan and mahometan parentage and country have heretofore, and hereafter may bef,] purchased, procured, or otherwise obteigned as slaves of, from or out of... their heathenish country by some well disposed Christian, who after ... their obteining and purchaseing such negroe, moor, or mollatto as their slave out of a pious zeale, have wrought the conversion of such slave to the Christian faith, which by the laws of this country doth not manumitt them or make them free, and [after] their conversion, it hath and may often happen that such master or owners of such slave being by some reason inforced to bring or send such slave into this country to sell or dispose of for his necessity or advantage, he the said master or owner of such servantf,] which notwithstanding his conversion is really his slave, or his factor or agentf,] must be constrained to carry back or export againe the said slave to some other place where they may sell him for a slave, or else depart from their just right and tytle to such slave and sell him here for noe longer time then the English or other Christians are to serve, to the great losse and damage of such master or owner, and to the great discouragement of bringing in such slaves for the future, and to noe advantage at all to the planter or buyer... Bee it therefore enacted by the governour councell and burgesses of this grand assembly, and it is enacted by the authority afore-

24

25 26

Although the elaborate colonial slave codes that began to appear early in the 18th century treated slaves as disposable property, laws were occasionally enforced against extreme brutality leading to a slave's death. See, e.g., Thomas B. Chaplin Sits on a Jury of Inquest (W.L. Rose, A Document History of Slavery in North America, 210-2). Act XII, W.W. Hening, The [Virginia] Statutes at Large, 283. What non-Christian servants might come by land? Perhaps Native Americans. It is unclear, however, why they would be treated differently from other non-Christians, especially as the 1682 substitute enactment (discussed below) does not so provide.

Racial Junctures in US History and Their Legacy 111 said, that [the] act of the third of October 167027 be, and is hereby repealed and made utterly voyd to all intents and purposes whatsoever. And be it further enacted by the authority aforesaid that all servants ... which from and after publication of this act shall be brought or imported into this country, either by sea or land, whether Negroes, Moores, Mollattoes or Indians, who and whose parentage and native country are not Christian at the lime of their first purchase of such servant by some Christian ... are hereby adjudged, deemed and taken, and shall be adjudged, deemed and taken to be slaves to all intents and purposes, any law, usage or custome to the contrary notwithstanding.28 While one finds here the vestiges of the faith-based criterion for enslavement, it is clearly subordinated to a determination that lifetime, inheritable slavery shall be confined to people of color.29 The Virginia legislature has created a color-coded, two-tier labor system. What difference did it make? The colonial records indicate that, for much of the 17th century, economic and social stratification was not tightly color-coded and social mobility was accessible, as in Spanish and Portuguese colonies. We know, for example, that some African slaves in Virginia acquired the wherewithal to raise crops and domestic animals, engage in commerce, accumulate capital, and purchase their own freedom. Then they might purchase the freedom of spouses and children, acquire land and servants, have their children baptized, and be recognized as community members. Marriages with European Americans were not uncommon.30 These developments were made possible, in part, by the cooperation of European American masters, who would allow a slave or other servant to use some land in exchange for being released from the responsibility of providing for the servant's subsistence. With very hard work and a good deal of luck, such a servant might eventually gain his freedom and even become an independent farmer. This approach seems to have been attractive to masters during hard economic times, such as the 1630s. Thus, in the 17th century, Virginia included communities of free African Americans and interracial families.31 Sz Another factor promoting social mobility in these first decades is that most of the African immigrants came to the colonies from the west coast of Africa, where for a century and a half there had been considerable contact with Europeans. Many had been in other European colonies prior to arriving in Virginia. They differed from the vast majority of those who came later, during the height of the slave trade to North America. The later immigrants came mainly from the African interior, after being captured or kidnaped, and were unfamiliar with Europeans, their language, or their culture. The

27 28 29

30 31 32

The statute last quoted. Act I, W.W. Hening, The [Virginia] Statutes at Large, 490-493. This division of humanity became a feature of US law as, e.g., Congress in 1790 limited naturalized citizenship to "white" persons. The restriction remained for nearly two centuries (save for the exception made in 1870 for persons of African ancestry, The Naturalization and Enforcement Act of 1870, 16 Stat. 254,256). I. Berlin, Many Thousands Gone, 29-46; R. Blackburn, The Making of New World Slavery, 228, 240, 266. I. Berlin, Many Thousands Gone, 45f. In these respects, the British colonies initially resembled those of Spain, which came to include substantial populations of free people of color. Although that development stems in part from local conditions, it should be noted that the Spanish slave code favored and facilitated the movement of individuals out of slavery and their integration into the larger community (I. Berlin, Many Thousands Gone, 212-14; F. Tannenbaum, Slave and Citizen, 53-61).

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earlier African immigrants came in small numbers and lacked some characteristics that later made African chattel slaves seem alien to European Americans.33 Three properties are understood to have set Africans apart in the eyes of European Americans: their physical appearance, their culture, and their religion.34 It may be assumed that the early immigrants from Africa presented an alien appearance to the British settlers. But many of the early arrivals were neither culturally nor religiously so different as those who came during the height of the slave trade. Many knew the ways of Europeans, and many had already been converted to Christianity.35 36 There has been some dispute among historians concerning cause and effect relations between chattel slavery and White racist attitudes.37 My point here is that, despite notions of White superiority among some portion of the European American population, it was initially neither assumed nor ordained that people of color should become a rigidly subjugated caste. But those who shaped the direction of the colony evidently decided, starting in the 1660s, to color-code the social system. I want now to suggest another factor that may have encouraged that decision. In 17th century Virginia, servants and slaves from Europe and Africa cooperated in many settings. They worked together, shared living conditions and grievances, and ran away from bondage together.38 In 1676, they joined together in Bacon's Rebellion.39 Many landless European Americans participated with the aim of making more land available by dispossessing Native Americans, either by killing them or driving them further inland. Many African Americans participated, presumably because Bacon promised them freedom.40 They opposed the governing landed elite, who had less need for land than for maintaining peaceful relations with the neighboring Native Americans. The rebels forced the governor to flee Jamestown and then burned it to the ground. British troops crossed the Atlantic to put down the rebellion, which faltered when Bacon fell ill and died. Bacon's Rebellion was not the first uprising against the colonial elite, but it was undoubtedly the most threatening and traumatic before the 1770s. I suggest that the experience contributed to the determination of those who shaped the policies of the colony to drive a wedge between Europeans and Africans by creating a color-coded social system. By forcing servants of color to the bottom, they accorded relative privilege, dignity, and opportunity to those on the second tier. In 1682, as we have seen, the Virginia legislature consigned people of color to slavery. This divide-and-conquer strategy enabled the elite to pit one potentially rebellious group against another. 33 34 35 36

37 38 39 40

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I. Berlin, Many Thousands Gone, 102-5; R. Blackburn, The Making of New World Slavery, 255, 258; P. Kolchin, American Slavery 1619-1877, 16f. P. Kolchin, American Slavery 1619-1877, 14f. I. Berlin, Many Thousands Gone, 29, 44f. As P. Kolchin, American Slavery 1619-1877, notes (15), cultural differences decreased when people of African ancestry were raised in the colonies, and physical differences blurred as Whites and Blacks had joint progeny. T.W. Allen, The Invention of the White Race, 3-21. I. Berlin, Many Thousands Gone, 45; A.L. Higginbotham, In the Matter of Color, 26-30. I. Berlin, Many Thousands Gone, 45; W.E. Washburn, The Govenor and the Rebel, 80. Two related interests might have increased African Americans' willingness to participate. Insofar as they could envisage the possibility of gaining their own freedom, they too wanted land to be available. But, given colonial enactments such as those we have reviewed, by the 1670s those prospects were being extinguished by the colonial government. They accordingly had serious grievances against the colonial elite, who became the principal target of the rebellion.

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To cement a color-coded system that would reduce solidarity among laborers and decrease effective combined opposition to the colonial elite, it was necessary to do more. Those who shaped colonial policy decided to sanction fully White supremacist sentiments. In 1691 the Virginia legislature banned interracial marriages and severely punished interracial procreation.41 It is noteworthy that this measure was not universally approved by the European American community, but was opposed by some of its propertied members.42 But official policy was now actively encouraging somewhat inchoate racist notions to intensify and congeal. The same enactment sanctioned the killing of runaway slaves, restricted severely the freeing of slaves, and required that freed slaves be transported out of the colony at the owner's expense. African Americans were to occupy a bottom caste, deprived of the rights claimed and the aspirations indulged by indentured servants and excluded from romantic and other relationships with European Americans. They were to be identified with slavery. And they were fair game. These efforts achieved some measure of success. As European Americans were acculturated in a system that consigned African Americans to the bottom and actively discouraged fraternization, they were encouraged to believe that the social hierarchy had a valid foundation. Racism provided the ideological cement. ^ In sum, the system of chattel slavery that developed in Virginia was not inevitable. It was neither inherited by the colonists nor brought over from Britain. For several decades, social mobility was possible in Virginia society even for African slaves. African Americans were able to acquire economic independence and respected social status. Faced with this prospect - and, I suggest, faced with the prospect of a unified laboring class - the ruling elite imposed a rigid, color-coded caste system. It is impossible to say how clearly that elite imagined the possible alternatives. It would have been clear, however, that any alternative would have involved a wider distribution of political power, economic opportunity, and social mobility. Positive measures were required to avoid those eventualities, and they were effectively taken. 2.

The Legal Entrenchment of Slavery

Until it was abolished in 1865, slavery was not expressly mentioned in the Constitution. But several provisions were understood by the framers and later by state and federal officials to refer to slavery. Here are the clearest examples: The three-fifths clause (Article I, Section 2, paragraph 3) provided that representation in Congress "shall be apportioned among the several States ... according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." Thus indentured servants were expressly included in the category of "free persons" and Native Americans were expressly excluded from the apportionment, so that only those in lifetime, hereditary slavery occupied the category "other persons." While suffrage was denied slaves, their numbers contributed to slave owners' influence within all three branches of government - not only in Congress but

41 42 43

Act XVI, P. Finkelman, The Law of Freedom and Bondage, 18. I. Berlin, Many Thousands Gone, 44. For a discussion of 17th century alternatives, see R. Blackburn, The Making of New World Slavery, 350-63.

280 David Lyons also in the executive branch (as the electoral college reflected congressional representation), and the federal judiciary (selected by the president).44 The slave trade provisions. Article I, Section 9, paragraph 1 prevented Congress for twenty years from banning "the migration or importation of such persons as any of the States now existing shall think proper to admit", and Article V exempted this provision from amendment for the same period. The fugitive slave clause (Article IV, Section 2, paragraph 3) provided for the return of "personfs] held to service or labour" to those "to whom such service or labour may be due." The provision was understood to concern runaway slaves. Implementing legislation was first enacted in 1793 (Fugitive Slave Act of 1793, 1 Stat., 302), and persons accused of running away from slavery or of trying to aid them were prosecuted in the courts.45 The constitutional accommodation of chattel slavery seems to clash with the doctrine of universal human rights that a decade earlier was invoked to justify the colonial rebellion. The contradiction was frequently noted, especially by friends of the rebels when the latter complained of being reduced to "slaves" by Crown or Parliament.46 In his Dred Scott opinion, Chief Justice Roger Taney claimed that there was in fact no contradiction. According to Taney, the founders never dreamed of including people of African descent within the body politic. Thus he wrote: It is difficult at this day [1857] to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion. However much the founders were influenced by notions of White supremacy, Taney would seem to have indulged in some exaggeration. Part of the more familiar story of the constitutional framing is that, in order to achieve a settlement, a North-South compromise on slavery was necessary. The North is understood to have opposed slavery, or at least its extension, and to have made concessions in order to achieve a stronger central government. Concessions to slavery would not have been necessary, however, unless abolition had been perceived as a threat. If it were, it seems likely that some people were disputing the notion that African Americans "had no rights which the white man was bound to respect" and "might justly ... be reduced to slavery for his benefit." 44 45 46 47

P. Finkelman, "Making a Covenant with Death", 199f, n. 23; P. Finkelman, "The Founders and Slavery", 441-3. R.M. Cover, Justice Accused, 159-91. L.F. Litwack, North of Slavery, 7-9. Scott v. Sandford, 60 U.S. 393,407 (1857), emphasis added.

Racial Junctures in US History and Their Legacy 281 Taney was mistaken. By the time chattel slavery had been consolidated, in the late 17lh century, objections to it were being publicly expressed in America. In the 18lh century, anti-slavery sentiment was disseminated in print and from the pulpits of various denominations, South as well as North. By 1787, three Northern states had abolished slavery, three had enacted gradual emancipation statutes, and three others would follow (as would three of the states that would soon be carved out of the Northwest Territory). This helps to explain why some delegates from slave states expressed the fear that slavery might be attacked or undermined by a stronger central government. It helps to explain why they demanded that slavery be protected.48 49 Let's review what was done for slavery at the convention. The general structure of the Constitution provided a partial solution to the perceived problem. As the federal government was to be accorded only a limited set of enumerated powers, slavery could be protected by excluding its regulation from the list of enumerated powers and making sure that no enumerated power implied such an authority. That was done.50 The importation of slaves had been suspended during the revolutionary period. The Lower South (Georgia and the Carolinas) had lost many slaves during the war, and it wanted the slave trade protected. It was worried not only about anti-slavery agitation but also about the economic interests of Virginia and Maryland, which opposed the external slave trade. The demand for tobacco had not kept up with its expanded cultivation, and the Chesapeake region now had a surplus of slaves. Chesapeake planters could profit from the internal slave trade if the Constitution protected slavery but banned (or even permitted the banning of) the traffic in slaves from abroad.51 The Lower South was insistent on this point. Merely omitting regulation of the slave trade from the list of federal powers would not solve the problem. That's because Northern states wanted the federal government to regulate external commerce, which could include the external slave trade. As a compromise, the North accepted the twentyyear slave trade provision of Article I, a ban on the taxation of exports (such as the slave states' cash crops), and Article V's entrenchment of the slave trade clause (perhaps because the three Lower South states could not alone have been able to block a constitutional amendment canceling Article I's slave trade clause).52 But no such bargaining can account for the other accommodations made to slavery. Consider the three-fifths formula for representation in Congress and the electoral college. Once proposed, it was embraced by the slave states, but they did not lay down its acceptance as a condition for union in the way that delegates from South Carolina insisted upon protections for slavery and the slave trade. The idea of counting slaves for purposes of representation lacked any precedents in Confederation practice,53 54 and slaves were not counted towards representation in the legislatures of the slave states. To 48 49

50 51 52 53 54

See G.B. Nash, Red, White, and Black, 7-20. Not that European Americans were committed to equality. By the late 181*1 century, racial stratification was firmly entrenched and racist attitudes were widespread throughout the US. Many European Americans objected to slavery, nonetheless, on self-interested or moral grounds. P. Finkelman, "Making a Covenant with Death", 9; P. Finkelman, 'The Founders and Slavery", 443f. P. Finkelman, "Making a Covenant with Death", 26-8; P. Finkelman, "The Founders and Slavery", 418,421. P. Finkelman, "Making a Covenant with Death", 22-34; P. Finkelman, "The Founders and Slavery", 433-41. P. Finkelman, "Making a Covenant with Death", 429. The formula had been proposed under the Articles of Confederation as a basis for calculating a direct tax, but not as a basis for representation.

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the argument that slaves should be counted because they were part of the population, it was replied that they were excluded from the political process and were treated as property, while no other property was a basis for representation. Moreover, the three-fifths formula was arbitrary, lacking any rationale. The North agreed to it, however, without securing any concessions in return.55 The fugitive slave clause was even more readily accepted. It was not proposed until the very end of the convention, and was subjected to neither bargaining nor debate. And yet it was bound to rankle not only anti-slavery interests but those who feared federal encroachment upon state autonomy and sovereignty. Like the three-fifths formula, it was a gift to the South.56 57 Why was the North so accommodating?58 There is reason to regard the Northern delegates as unrepresentative of northern sentiment. A principal aim of the convention was to design a stronger, more centralized union that shielded property from popular leveling movements, and the delegates largely represented affluent commercial and plantation interests. Although abolition was becoming official policy of the Northern states, their convention delegates proved uninterested in the issue.59 A few delegates, such as Gouverneur Morris of Pennsylvania, were opponents of slavery; but they were very much in the minority. The delegates from New England almost always favored concessions for slavery and voted with South Carolina. Connecticut's Oliver Ellsworth explained the position when he declined to consider the merits of slavery and said, "what enriches a part enriches the whole".60 61 I would not be the first to suggest that the convention went too far in accommodating slavery. Nor to suggest that the convention need not have done so at all. Feasible alternatives were available, and at least some of the alternatives that I shall mention were laid before the convention. A significantly different settlement would no doubt have required a somewhat different set of delegates; but that is not relevant to the present point. The question is, in part, what those in a position to decide could at the time have readily imagined happening and, in part, what it would have been reasonable to demand that they do. It is a question about what they might have done if they had so chosen even if they were in fact determined to prevent by all available means some of the imagined states of affairs. The North might have refused to compromise so much on slavery, and it might have refused to compromise at all. To understand how this might have been possible, and where it might have led, we have to look more closely at the differences between the Upper and the Lower South. 55 56 57

58

59 60 61

P. Finkelman, "Making a Covenant with Death", 10-20, 22-5; P. Finkelman, "The Founders and Slavery", 427-30. P. Finkelman, "Making a Covenant with Death", 30-2; P. Finkelman, 'The Founders and Slavery" 438f. In the ante bellum period, Northern states applied "personal liberty laws" to frustrate enforcement of the Fugitive Slave Act (T.D. Morris, Free Men All). These efforts were finally halted by the Supreme Court in Prigg v. Pennsylvania, 41 U.S. 539 (1842). In addition to the provisions mentioned, several others supported slavery, e.g. Art. I, Sec. 8, para. 15, which conferred on Congress the authority to "suppress Insurrections", such as slave revolts (P. Finkelman, "Making a Covenant with Death", 7f; P. Finkelman, 'The Founders and Slavery", 439-43). G.B. Nash, Race and Revolution, 37-42. P. Finkelman, "Making a Covenant with Death", 26; P. Finkelman, 'The Founders and Slavery" 432,434. New England shippers of course profited from the slave trade as well as from trade in goods produced by slaves (P. Finkelman, "Making a Covenant with Death", 23).

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The Chesapeake region was not only home to many leaders of the new nation but also a center of anti-slavery sentiment. This helps to account for the rapid growth of a free Black population in the Upper South during the late 18th century. Between 1782 and 1790, those states repealed bans on the private manumission of slaves and permitted the freed slaves to remain. Meanwhile, demand for slaves continued to grow in the Lower South, where plantations dedicated to rice and indigo were expanding. Under those circumstances, Upper South slave owners could have secured high prices selling slaves to the Lower South. The fact that many Upper South slave owners chose to free slaves rather than offer them for sale seems evidence of anti-slavery sentiment. And, indeed, manumission documents express those sentiments explicitly.62 This means that an abolitionist North had potential allies in the Upper South. Could those two sections have formed a united front against the constitutional accommodation of slavery? The traditional view is that a viable union required incorporation of all the former colonies and the Lower South absolutely insisted on protections for slavery.63 That view can be challenged. The Lower South was not in a good bargaining position. There is reason to discount their threats to abandon the union if the convention refused to accommodate slavery. Georgia and South Carolina wanted the protection a strong union could afford them against powerful Native American nations, and Georgia also felt vulnerable to Spanish Florida on its southern border, which was an escape route for runaway slaves and a staging area for opponents of the slave state. The Lower South thus might have agreed to much less than they got - perhaps a constitution that tolerated but did not support slavery.64 It is unclear that the Lower South had the strength to succeed on its own as a tiny pro-slavery union, even if they were assured that a larger and much stronger union, comprising the Upper South and the North, would have tolerated their separate existence. Even if the Lower South would have been able to form a slave-based union with the Upper South, one separate from a non-slave Northern union, its prospects would have been dubious. A Northern union would have had a diverse agricultural base, a shipping industry, and a textile industry, which could have used domestic wool and imported cotton. By contrast, a Southern union, dependent on cash crops and little industry, would have faced greater difficulty. In fact, given the weakness of the Lower South and attitudes within the Upper South, it has been suggested that a more representative convention could have endorsed a national program of abolition.66 South Carolina's expressed anxieties about slavery tend to confirm that abolition was a threat. If so, it was imaginable. As Madison made clear, one of the principal conflicts to be addressed by the convention was between those with substantial property and those lacking it - identified aptly as the "minority" and "majority" respectively. Those who sought a stronger union desired that property be made more secure. We might imagine an uncompensated emancipation of slaves, but at the time it might have been unimaginable for many potential delegates, including most of those who were opposed to slavery. It may be reasonable to assume that any imaginable abolition program at the time would have included compen62 63 64 65 66

G.B. Nash, Race and Revolution, 17-9; but see P. Finkelman, 'The Founders and Slavery", 424f. G.B. Nash, Race and Revolution, 3-6. P. Finkelman, 'The Founders and Slavery", 425-45. G.B. Nash, Race and Revolution, 28f; P. Finkelman, "The Founders and Slavery", 415f. In the 1780s and for a few years thereafter - until the cotton gin changed all calculations (G.B. Nash, Race and Revolution, 36f, 42-7; but see J. Ellis, Founding Brothers, 104-8).

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sation for slave owners.67 That was not beyond the imagination even of the actual delegates to the convention, for Gouverneur Morris proposed a federal tax for the very purpose. 6869 If we assume that compensation for slave owners would have been part of any national abolition program, we have to imagine a source of revenue. Here's one suggestion that has been made. The Northwest Territory was just then being opened for settlement, and it contained half a billion fine acres. That land was a national asset which might have generated the revenue in question. A modest addition to the price per acre of one dollar would in a relatively short time have raised a considerable portion, if not all, of the estimated ninety million dollars that would have been required for compensation.7071 In sum, the Constitution that was agreed upon and ratified accommodated slavery. It did so excessively, beyond what was required for an agreement between those who represented slave owners' interests and those who were opposed to slavery. Furthermore, it is possible that no accommodation was necessary. A union comprising states without slavery - which might have included the Upper South - would seem to have been viable, whereas a union of slave states would have had less favorable prospects. Alternatively, despite South Carolina's intransigent rhetoric, we can imagine a union embarked instead on a national anti-slavery project. There was widespread popular support for such a program at the time, and the new nation possessed the assets to effect it successfully. 3.

The First Quasi-Reconstruction

An op-ed piece appeared recently in the New York Times under the headline, "The Enduring Legacy of the South's Civil War Victory."72 One who judged the past by military outcomes or by formal changes in the law might have supposed that a headline writer's slip had turned history upside down. But there was no mistake. The Old South had in fact prevailed. Not only had the planter class largely been restored to control of a system built upon coercively extracted Black labor; by systematically discrediting the period of Reconstruction that followed the Civil War, historians had effectively presented the continued subjugation of African Americans as justified. For most of the century following its demise, Reconstruction was portrayed as disastrous rule by incompetent ex-slaves and corrupt Northern meddlers.73 Although that picture persists, it is no longer conventional wisdom among historians. Reconstruction 67

68 69

70 71

72 73

The idea of not only freeing but also compensating the slaves would presumably have been less imaginable than emancipation without compensation for the owners. But the idea was certainly imaginable a century later. P. Finkelman, "Making a Covenant with Death", 24; J. Ellis, Founding Brothers, 92. The convention did not pursue the idea; neither did Congress when Elbridge Gerry of Connecticut made such a proposal in 1790; as J. Ellis, Founding Brothers, 86f, 90, 105, notes, "several emancipation schemes" were proposed from the 1770s on. G.B. Nash, Race and Revolution, 36f. J. Ellis, Founding Brothers, 104-8, suggests that the cost of compensation could been met by spreading it over a number of years, but that relocation of emancipated slaves presented insuperable difficulties. Note that such revenue-raising schemes concerned land that was being appropriated by force from Native Americans, who had no part in the treaty that transferred Great Britain's land claims to its former colonies. By David Brion Davis, August 26, 2001. See also E. Foner, Reconstruction 1863-1877,608-10. E. Foner, Reconstruction 1863-1877, xixf.

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was deficient, but not in those ways, and for different reasons. Reconstruction secured, temporarily, a number of basic rights for four million African Americans who under slavery had lacked any such rights at all. Freedmen were aided in fending off some of the brutal violence to which they were subjected. Ex-slaves voted and held public office.74 State governments were very substantially reformed, and public services, including public education, were created. When Reconstruction was followed by "Redemption," modest taxes on land were drastically reduced, along with state services, and by the early 20th century Blacks were excluded from political participation. The South was permitted to ignore federal law and to create a new, distinctively brutal form of White supremacy.7 The nation's withdrawal from Reconstruction is generally associated with the HayesTilden agreement of 1877, which settled a disputed presidential election by allocating decisive electoral votes to the Republican candidate in exchange for an end to federal enforcement of African Americans' rights.76 Those developments were significant, but they alone do not account for Reconstruction's failure. Crucial decisions that undermined Reconstruction were made a decade earlier. I'll explain this after sketching some of Reconstruction's principal features. As the Civil War drew to a close, it was clear that the abolition of slavery had become one of the War's principal aims.77 A central issue for those developing national policy was how to deal with the states that had seceded - what to require of them as conditions of their restoration to full status. Another issue was the fate of four million freedmen - ex-slaves. Tentative measures were adopted during the war, especially when Confederate territory came under Union control. Primarily concerned with successfully ending the War and restoring the Union, Lincoln issued a Proclamation of Amnesty and Reconstruction in 1863,78 which offered to restore all rights, except property rights in slaves, to those who swore future loyalty and accepted the abolition of slavery. The Proclamation appeared to offer freedmen nothing but the prospect of laboring for a reestablished planter class. Lincoln privately favored suffrage for some freedmen, but he took no forceful or public steps in that direction.79 After Lincoln's assassination, President Andrew Johnson supported the maintenance of White supremacy in the South. With his blessing, new state governments established "Black Codes," which much resembled the former Slave Codes. Discrimination was in some respects amplified in order to insure that ex-slaves would be forced back to the plantations. Freedmen were coerced into year-long labor "contracts." Widespread violence enforced the new system.80 Dismayed by Johnson's policies, Congress sought to end the most glaring inequities that were inherited from a society built upon chattel slavery and racist ideology. It mandated equality for Blacks under the law, freedom in economic relations, and universal manhood suffrage. In 1866, for example, Congress enacted the first Civil Rights Act, 74 75 76 77 78 79 80

For a brief account, see J.H. Franklin and A.A. Moss, From Slavery to Freedom, 227-31. 237-44. Until this century, of course, women were excluded from the suffrage. E. Foner, Reconstruction 1863-1877, 587-601. Ibid., 575-82. The 131*1 amendment to the US Constitution, prohibiting slavery, was proposed and ratified in 1865, the same year the War ended. M.I. Urofsky and P. Finkelman, Documents of American Constitutional and Legal History, 442f; E. Foner, Reconstruction 1863-1877, 35f. E. Foner, Reconstruction 1863-1877,61f, 73-5. Ibid., 119-23, 198,209.

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over Johnson's veto.81 Besides outlawing race discrimination in the economic and adjudicative spheres, the Act reversed Dred Scott by granting US citizenship to those bom in the US. Congress renewed the Freedmen's Bureau, again over Johnson's veto.83 Established in 1865 to provide emergency relief, which the Bureau afforded Southern Whites as well as Blacks, it now helped to enforce the new legal rights and to establish new public institutions, most notably public schools.84 In response to violence against Blacks and their allies, and to promote reconstructed state governments, in 1867 Congress created military districts in the South and laid down criteria for new state constitutions,85 including universal male suffrage and acceptance of the 14th amendment (which was proposed in 1866 and ratified in 1868). The 15th amendment (proposed in 1869 and ratified the following year) prohibited racial exclusion from voting, and Congress provided for its enforcement by further legislation.86 Other measures included the Civil Rights Act of 1875, 18 Stat. 335, which mandated equal access to public accommodations. An electoral crisis following disputed elections in Louisiana and South Carolina was ended by the 1877 Hayes-Tilden agreement. Federal troops were withdrawn from the capitals of those states, decisive electoral votes were assigned to the Republican candidate, and federal supervision of Southern elections was subsequently ended. Over the next generation, through force, fraud, and various legal devices, Blacks were driven from political participation, and the federal government declined to intervene.87 While some freedmen migrated to cities, most became sharecroppers on land that had been restored to its original owners. The lynching of Blacks was widely practiced,88 reaching a peak in the 1890s, when a lynching occurred every two or three days. Many lynchings were public, and many were publicized in advance. Photographs of victims, participants, and spectators were widely circulated, some on printed postcards sent through the US mail. Anti-lynching legislation, frequently proposed, never made it through both houses of Congress. White supremacy was thus violently re-established. Racial segregation was firmly imposed,89 and was sanctified by Plessy v. Ferguson in 1896 (163 U.S. 537). Long before Plessy, however, many of the legal changes that were entrenched in the Constitution or mandated by Congress had already been undermined by the Supreme Court. The Court would not accept the constitutional expansion of federal power and interpreted new rights narrowly. Changes that would have been effected by the 14th amendment were limited severely in the Slaughterhouse Cases of 1873 (83 U.S. 36); guarantees of voting rights against private parties' violent interference were nullified, starting with US v. Reese in 1875 (92 U.S. 214); and public accommodations were treated as immune to federal regulation by the Civil Rights Cases in 1883 (109 U.S. 3). 81 82 83 84 85 86 87 88 89

14 Stat. 27; E. Foner, Reconstruction 1863-1877,243-7. "Excluding Indians not taxed". The Naturalization and Enforcement Act of 1870, 16 Stat. 254, 256, allowed persons of African "nativity" and "descent" to become US citizens. Supplementary Freedmen's Bureau Act of 1866, 14 Stat. 173; E. Foner, Reconstruction 1863-1877 243-51. Freedmen's Bureau Act of 1865, 13 Stat. 507; E. Foner, Reconstruction 1863-1877 68-70 143-53 157-70. Reconstruction Act of 1867, 14 Stat. 428. Enforcement Acts of 1870, 16 Stat. 140, 16 Stat. 254, 255f; Enforcement Act of 1872, 17 Stat. 347. E. Foner, Reconstruction 1863-1877, 575-601; J.H. Franklin, Reconstruction After the Civil War 168f, 174f. P. Dray, At the Hands of Persons Unknown, R.L. Zangrando, The NAACP Crusade Against Lynching. E. Foner, Reconstruction 1863-1877, 404f, 537.

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Those decisions did much to defeat Reconstruction, but more sympathetic judicial action would not have prevented its demise. Or so I shall argue. What would a genuine Reconstruction have involved for African Americans? I assume it would have insured full political rights, guaranteed equal treatment under equal laws, created an effective regime of uncoerced labor, and banned discrimination in the public sphere. Nothing less was due the ex-slaves - or, for that matter, any members of the society. But none of these things was secured by Reconstruction. The next question is how such changes might have been achieved. Federal legislation might assert, as it did, that Blacks had economic, political, and adjudicative rights equal to those enjoyed by Whites; but such rights could be enforced, if at all, only with a struggle. Active federal intervention, including military force, was required to achieve some measure of democracy and the rule of law; but federal military intervention could not be sustained indefinitely. When federal assistance was withdrawn, it was clear that virtually all gains (save the formal end to chattel slavery) would be reversed. Judicial cooperation would have helped a great deal. But it would not have insured a reconstruction that respected the rights of African Americans. In the absence of more profound political and economic reform there was little prospect for Blacks to effectively exercise any rights that might formally be conferred by law. Concentrated wealth acquires (or retains) political power. In the South, after as well as before the Civil War, wealth and political power were concentrated in the planter class - those who still possessed the largest land holdings, which had previously been worked by their slaves. So long as the large planters retained so much of the land and Blacks were forced to work it for them, in one capacity or another,90 the planters would maintain economic dominance and, even in the best of accompanying circumstances, they would maintain political dominance too. A reconstruction program with a reasonable hope of insuring Blacks (and poor Whites) the opportunity to effectively exercise their nominal rights would have had to end planter control of the South. It would have included a good measure of political democracy, which would have required the redistribution of resources. That meant land reform - the confiscation of large land holdings and some distribution to the freedmen.91 Freedmen wanted control over their own work and the products of their labor. They frequently "insisted that their past labor entitled them to at least a portion of their [former] owners' estates".92 They recognized that their labor had paid for the land, had cleared it, and had earned cash for the crops they raised upon it. Their demands and expectations - forty good acres - appear quite reasonable. They had a just claim to compensation from those to whom they had been enslaved, and the means of compensation were available - the very land they had cleared and had worked as slaves. Given the ground and moderation of their claims, problematic calculations of just reparations would not seem to have been necessary. It is important to emphasize that the idea of land reform is not a recent notion, but was in the air for much of Reconstruction. And it was begun, though much was re90

91 92

During Reconstruction, freedmen worked the land in one of three ways: as wage laborers under White drivers; as tenants, for a set rent; or as sharecroppers, for a portion of the product. Many freedmen initially preferred sharecropping because it seemed to afford the most autonomy; and most Blacks who remained in agricultural labor, as most freedmen did, became sharecroppers. After Reconstruction, when planters controlled the accounts and could use fraud with impunity, sharecroppers became mired in debt (E. Foner, Reconstruction 1863-1877, 103-9, 171-5, 404f, 537). E. Foner, Reconstruction 1863-1877 remarks (109) that effective land reform would also require access to reasonable credit and to markets. Ibid., 105,160-4, 374f.

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versed. From early on, freedmen agitated for a workable share of the land, and they renewed their appeals time and again. They understood freedom to involve farming independently, free of White drivers and planters' rules. Their land reform proposals were supported by some poor whites, who likewise sought land; by some agents of the Freemen's Bureau, who distributed land when possible; and by some prominent political leaders, such as Benjamin F. Butler, George W. Julian, Wendell Phillips, Thaddeus Stevens, and Charles Sumner, who endorsed large-scale land reform.93 Land was available, or could become so, in four ways. A great deal of land in the West and South (e.g., in Florida) was owned by the federal government. In addition, much acreage was abandoned during the War; much was seized for nonpayment of taxes; and a vast amount was potentially subject to confiscation.94 The Second Confiscation Act of 1862 (12 Stat. 589), contemplated forfeiture of Confederates' lands for at least one generation and, before the War ended, Congress came close to making forfeitures permanent.95 But even earlier, plantation land had begun to come under Black control. When the US Navy occupied Port Royal, South Carolina, in 1861, most Whites fled the area. The thousands of slaves who remained rejected the idea of maintaining cotton production and instead raised food crops for their own consumption. For a time it seemed that the land would remain in their possession.96 In 1862, after the ten thousand acre plantation at Davis Bend, Mississippi, was abandoned by its owner, slaves took it over. The following year General Grant authorized their development of an autonomous community, which then became a refuge for displaced freedmen. Initially aided by some government supplies, the freedmen grew cotton profitably for several years.97 In 1865 Genera] Sherman allocated the Sea Islands and coastal land south of Charleston to freedmen, each family to have forty acres and the loan of a mule. Forty thousand Blacks soon settled on the four hundred thousand acres that were available. They were led to believe the land was theirs.98 The Freedmen's Bureau gained control of more than 850,000 acres of abandoned land. Authorized by federal law to rent abandoned and confiscated land in forty acre lots, for eventual sale, with long-term credit, it distributed some land to freedmen. 9 Some Southern Reconstruction governments addressed the issue. "Texas offered free homesteads to settlers on the state's vast public domain, and Mississippi provided that land seized by the state to satisfy tax claims would be sold in tracts of no more than 160 acres." Louisiana adopted a similar measure, setting a limit of fifty acres. The most ambitious program was established by South Carolina, which purchased and resold land on long-term credit, enabling fourteen thousand Black families to acquire homesteads permanently.100 In 1865 Thaddeus Stevens proposed a comprehensive program that would have involved seizing four hundred million acres that were owned by the wealthiest ten percent of Southern landowners. Forty acres would have been allocated to each adult freedman and the remaining ninety percent of the acreage to be seized would have been sold in 93 94 95 96 97 98 99 100

Ibid., 68f, 302, 309f, 329. Ibid., 51. Ibid., 68. Ibid., 51. Ibid., 58f. Ibid., 78f. Ibid., 158f, 69f. Ibid., 329.

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lots of up to 500 acres. The proceeds would have provided pensions for Civil War veterans, compensation to loyal unionists for property losses in the war, and retirement of the national debt. This program would have made possible a genuine reconstruction of the South. It would have broken the planters' oligarchic control and promoted widely diffused wealth and political power.10 But Stevens' proposal was rejected by Congress in 1866, which enacted instead the Southern Homestead Act (14 Stat. 1866; supplementing the Homestead Act of 1862, 12 Stat. 392), offering public land for settlement.1(S The war-time measures adopted by Sherman and Grant and the efforts of sympathetic Freedmen's Bureau agents, allocating lands to ex-slaves, were atypical. Most military officers helped to force freedmen back to work for the planters under labor contracts.103 A very small portion of the land that was initially assigned to freedmen, an even smaller portion of the land that was practically available, and a very tiny percentage of the land that might have been made available was ultimately transferred to freedmen. Most of what seemed to have been transferred to them, during and after the War, was auctioned to investors and speculators or returned to its former owners. In 1863 and 1864, most of the land near Port Royal that slaves had been allowed to take over was auctioned off by government agents, and only a couple of thousand freedmen were able to retain land. "Many plantations ended up in the hands of army officers, government officials, and Northern speculators and cotton companies".104 At Davis Bend, title to the land had never passed to the freedmen who successfully developed an autonomous community and large-scale cotton production, and in 1878 the property was returned to the Davis family. In violation of the Confiscation Act and Freedmen's Bureau legislation, President Johnson ordered that all land that had been distributed be returned to its previous owners.106 107 Blacks appealed, to no avail. When they tried to retain the land, the US Army removed them by force. One should not infer from this record that the federal government was opposed in principle to the reallocation of land. On the contrary. For example, although little of the land that had been made available under the Southern Homestead Act went to freedmen, the land did not go unclaimed. Congress repealed the Act in 1876, so that lumber and mining companies could secure the public land, and most of it went to those interests. That measure was not isolated. From 1862 to 1872, the federal government gave more than a hundred million acres of public land, plus many millions of dollars, to railroad companies. Under the National Minerals Act of 1866 (14 Stat. 251), it gave millions of acres of mineral-rich public lands to mining companies.108 In sum, land reform was an essential element of genuine reconstruction, along with legal and political reform. But a land reform program was never endorsed by most congressional Republicans, many of whom believed that the institution of universal manhood suffrage and wage labor would transform Southern society. Land reform was opposed by Northern investors, and even by some Blacks who had been free under slav101 102 103 104 105 106 107 108

Ibid., 235f, 308f. Ibid., 234f, 246. Ibid., 54f,58f, 153-5. Ibid., 52f, 159-61. Ibid., 162. Ibid., 159-63. Johnson also vetoed a bill that would have facilitated land reform (ibid.). Ibid., 246,465-7, 568.

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ery. Many Whites in a position to affect policy believed that freedmen should resume their previous work, should even serve their previous masters, only now for wages. White policy makers generally wished to restore the money machine of Southern monoculture and the associated profitable enterprises, North and South.109 Planters wanted Blacks available for labor. Southern Whites were generally determined to prevent the freedmen from achieving economic independence. They would refuse credit to freedmen and would sell land to Whites for half the price offered by Blacks, in order to insure that the land would not come under Black ownership.110 It is unclear how many White policy makers considered the possibility that those who had been enslaved had a right to compensation for it. Some positively disapproved of programs to aid the freedmen. They argued that it would hurt the freedmen to be given land and that they must learn to save and work for it. Some Whites argued that federal aid - even emergency relief through the Freedmen's Bureau - would create dependency upon the government. President Johnson even condemned governmental services for ex-slaves as discrimination against Whites (though Whites too were served by the Bureau).111 During the 17th and 18th centuries, respectively, the colonies created and the new nation resolved to protect the system of racial subjugation and exploitation that we know as chattel slavery. The abolition of that system in the 19th century represents a significant shift in US public policy. The First Reconstruction may be seen, in part, as an attempt to carry that reformation further. It was however aborted. The US officially committed itself to civil rights, including political rights, for Blacks, to the point of entrenching those rights in its basic law, but it failed to enforce them. In this respect, the 19th century resembles the 18th: the nation's public policy fell drastically short of its rhetoric, promises, and pretensions. The opportunity to address White supremacy was permitted to pass, the freedmen were betrayed, a brutally oppressive regime was permitted to replace chattel slavery, and the need for a Second Reconstruction soon became evident to people of good will.112 4.

The Second Quasi-Reconstruction

Reconstruction did not end all at once. Despite the pressures, fraud, and violence, many freedmen continued to vote, some were elected to public office, and they persisted in their struggle for economic and political autonomy. For a while it appeared that they would create an effective political coalition with poor Whites in the People's Party; but the arrangement proved to be unstable. Even so, great effort and brutality were required to exclude African Americans from the public sphere and to minimize their economic independence.113 By the turn of the century, White supremacy had acquired a new form, known as Jim Crow. The Southern states adopted new constitutions along with various legal devices to insure the exclusion of Blacks from the ballot box and public office: the White primary, the poll tax, the understanding requirement, etc. These devices supplemented terror, of which lynching was the horrific, frequently public representative. Blacks and 109 110 111 112 113

Ibid., 105,235-7, 308-11, 376f. Ibid., 403f. Ibid.,247f. Franklin, Reconstruction After the Civil War, 211-9; E. Foner, Reconstruction 1863-1877, 582-612. C.V. Woodward, The Strange Career of Jim Crow, 53, 65; M. Marable, Race, Reform, and Rebellion, 9-11.

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their allies campaigned unsuccessfully for federal legislation against lynching. Once Jim Crow was firmly established, however, lynching declined gradually. Political power had been restored to economically powerful Whites. Increasing numbers of freedmen migrated to urban areas, but most became locked as sharecroppers in a modified plantation system. The federal government averted its eyes. Its Reconstruction amendments and civil rights legislation were all but dead letters. 14 Although occasionally inconvenienced by legal challenges, the Jim Crow system survived into the second half of the twentieth century. Following World War Two, however, several developments combined to undermine the explicitly racist regime. Black veterans returned to civilian life determined (once again) to realize the nation's democratic promises. Wartime propaganda against racism had generated more enlightened attitudes among Whites. The newly founded United Nations embraced a Universal Declaration of Human Rights. Colonial liberation movements gave rise to independent nations whose populations of color were appalled at Jim Crow in America, which film and video made more visible than ever. Cold War competition between the US and the USSR led American statesmen to deplore such unfavorable images of our domestic arrangements, especially the brutal suppression by police and other public servants of peaceful civil rights demonstrations. In this confluence of circumstances, heroic challenges to Jim Crow began to achieve success, despite lethal violence (indeed, sometimes because of lethal violence - when it took the lives of White civil rights workers).115 With the Brown decision of 1954 (Brown v. Board of Education of Topeka Kansas, 347 U.S. 483), the federal judiciary began seriously to contemplate vigorous enforcement of Blacks' civil rights. By the mid-1960s, Congress felt obliged to enact significant civil rights legislation, including the Civil Rights Act of 1964 (102 Stat. 31), the Voting Rights Act of 1965 (79 Stat. 437), the Fair Housing Act of 1968 (82 Stat. 81), and the Equal Employment Act of 1972 (86 Stat. 103). During the same period, increasing embarrassment and concern about the scandal of deep and widespread poverty within the exceptionally affluent US116 helped lead to the creation of social programs funded all or partly by the federal government, such as food stamps (78 Stat. 703 [1964]), Medicare (for the elderly and disabled, 79 Stat. 286 [1965]), Medicaid (for children and the poor, 79 Stat. 343 [1965]), Supplemental Security Income (serving needy aged, disabled, and blind, 86 Stat. 1465 [1972J), the Comprehensive Employment and Training Act (subsidizing low wage jobs in non-profit and public settings, 87 Stat. 839 [1973]), and Head Start (95 Stat. 499 [1981]), and the expansion of existing programs, such as Aid to Families with Dependent Children117 (or "welfare", 88 Stat. 2337, 2359 [1975]). Because of African Americans' disproportionate share of economic disadvantages, such programs are of special relevance here. That brings us to a brief assessment, from the perspective of the present essay, of this Second Reconstruction. Like the First Reconstruction, the Second constitutes a significant departure from established public policy. Despite substantial dissent and massive resistance, the nation committed itself (once again) to equal rights; anti-discrimination law was enacted and enforced; and Blacks were enabled to vote and hold public office. 114 C.V. Woodward, The Strange Career of Jim Crow, 82-93; President's Committee on Civil Rights, To Secure These Rights, 35-40. 115 V. Harding et al., "We Changed the World", 452-4, 513f; C.V. Woodward, The Strange Career of Jim Crow, 130-4; M. Marable, Race, Reform and Rebellion, 86f. 116 See, e.g., M. Harrington, The Other America. 117 Formerly Aid to Dependent Children, established under the Social Security Act of 1935, 49 Stat. 620.

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Blacks faced new opportunities not only in education but also in skilled trades and the professions. Political rhetoric was reformed: explicitly racist appeals became unacceptable, at least for mainstream candidates, and explicitly racist comments were no longer found in public policy statements. While neither overt discrimination nor anti-Black violence disappeared, they were reduced.118 The practice as well as the ideology of White supremacy were officially rejected. And, unlike the First Reconstruction, these changes have come to seem irreversible. There are other striking parallels between the First and Second Reconstruction. Criticism of government aid to Blacks resembled that of the 19th century, to the point of regarding such measures as discrimination against Whites."9 By the early 1980s, government policy had reduced interventions on behalf of Blacks and government assistance was reduced.120 At the same time, corporate welfare was expanded.121 For present purposes, the chief similarity between the two Reconstructions is their failure to undo much of the formidable economic and social legacy of slavery and Jim Crow, that is, the disadvantages of African Americans that largely flowed from past public policy. After slavery, freedmen with minimal resources, facing overt discrimination, were driven into peonage or menial urban occupations, while nutritional, educational, and medical programs that had been created mainly to aid them were eliminated.122 Generation after generation, the vast majority of African Americans entered working lives without a decent share of the nation's resources and with significantly lower life prospects than their White peers.123 After Jim Crow, anti-Black discrimination was lessened and opportunities for Blacks were increased. But nutritional, educational, medical, employment, and housing programs that were developed in the 1960s likewise faced cutbacks, which were severe by the 1980s and are continuing today. For example, the real benefits of Medicare and Medicaid have been reduced.124 125 Government continues to resist the development of comprehensive medical insurance, and thus preventive medicine, which is now unavailable for 40-odd millions.126 Federal subsidies for low income families to rent private housing (Section 8) have decreased.127 The Comprehensive Employment and Training Act programs have ended.128 Eligibility for food stamps has been restricted (116 Stat. 312, 315 [2002]). Aid to Families with Dependent Children has been eliminated; its replacement, Temporary Assistance to Needy Families (Personal Responsibility and Work Opportunity Reconciliation Act, 110 Stat. 2105 [1996]), sets lifetime limits on receipt of aid, requires more work from mothers of young children, and denies four-year college study as a means to improved employment.129 Despite such work requirements, the government has made woefully inadequate provision for child day care.13

118 119 120 121 122 123 124 125 126 127 128 129 130

M. Marable, Race, Reform, and Rebellion, 149f. Ibid., 221. Ibid., 152,206-13. Ibid., 207. E. Foner, Reconstruction 1863-1877, 587-601. President's Committee on Civil Rights, To Secure These Rights, 53-79. V. Harding et al., "We Changed the World", 599. But note that Medicaid has been expanded for children. V. Harding et al., "We Changed the World", 130. D.S. Massey and N.A. Denton, American Apartheid, 231. Ibid.; V. Harding et al., "We Changed the World", 599. V. Harding et al., "We Changed the World", 599. V. Harding et al., "We Changed the World", 599.

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Most important, the social programs of the 20th century, including those generated by the War on Poverty and the Second Reconstruction, have failed to address the deep, systemic character of Jim Crow's legacy. After three hundred and fifty years of slavery and Jim Crow, African Americans entered the Second Reconstruction with wealth, income, and life prospects disproportionately lower than that of their White peers. Despite less overt discrimination and more school and job opportunities, that deficit remains substantial.131 This is not to disparage the social programs themselves, which aided many. Bandages are useful when you're bleeding. US public policy, however, has more consistently favored inequality than equality. As the recent Luxembourg Income Study shows, whereas America's rich are the richest in the Western world, its poor are among the poorest. And the children among America's poor, mostly Black or Hispanic, are the very poorest.132 Consider one of the clearest legacies of Jim Crow - residential segregation.1 The Black ghetto has been a feature of those US cities with substantial Black populations for as long as anyone who is alive today might remember. It is therefore startling to learn that the Black ghetto did not exist until the 20th century. It was a product of Jim Crow. More severe in the North than the South, its creation was occasioned by increasing Black migration to the cities and was exacerbated by the lack of housing construction during World War Two.134 The Black urban ghetto resulted most directly from, or was intensified by, actions of home owners, real estate agents and associations, mortgage and insurance providers, local officials, and federal agencies. The means used began with violence (including bombs, directed especially at middle class Blacks moving into White areas adjacent to ghettos), but expanded to include restrictive covenants, boycotts of real estate agents who served Blacks, realtors' systematic diversion of Black clients from White communities, "redlining" (which identifies Black neighborhoods, within which loans are denied), "block-busting" (whereby Blacks are brought into a neighborhood, leading intolerant Whites to leave, more Blacks are brought in, leading less intolerant Whites to leave, and so on, while Blacks gain housing at inflated rents and prices), government support for highways serving White suburbs, public housing policies (regarding their location and clientele), and resistance to integration by local officials when the prospect of it arises.135 By 1940, the isolation of Blacks within segregated urban communities was greater than had ever been experienced by any other ethnic group in America. European newcomers initially lived in communities of immigrants that were ethnically heterogeneous, most lived outside such enclaves, and the condition was temporary. Not so for African Americans. Following World War Two, as White suburbs expanded, Black ghettos increased in size and density, giving rise to "hyper-segregation". And, in further contrast with other groups, income does not significantly ameliorate residential segregation for Blacks.136 Hyper-segregation persists, and it aggravates Jim Crow's legacy. That is because, for example, public policies can adversely affect the Black urban ghetto without hurting a 131 132 133 134 135 136

M. Marable, Race, Reform, and Rebellion, 227-30. See, e.g., the Luxembourg Income Study at www.lisproject.org. 1 am grateful to Mark Tushnet for suggesting this issue to me. D.S. Massey and N.A. Denton, American Apartheid, 42-9. Ibid., 26-42, 5If, 55-7. Ibid., 32f, 74-8, 84-8.

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significant number of Whites. Diverting public services from the ghetto can seem politically prudent to politicians who rely primarily on the votes of Whites, whose communities reap the diverted benefits. Poorly endowed public schools are familiar features of the ghetto, along with less adequate public transportation for those who most need it. As poverty is more concentrated among Blacks, it is most concentrated in the Black urban ghetto, along with unemployment, the withdrawal of commercial institutions, and the reduced maintenance of real property. Social contacts with Whites are minimized, along with job opportunities and business networking.13 Most important here, public policies have intensified the ghettoization of Blacks. Redlining was not invented by federal agencies, but it was institutionalized by the Home Owners Loan Corporation, the Federal Housing Administration, and the Veterans Administration. "Slum clearance" programs destabilized conditions in the ghetto. Many public housing projects, typically high-density, were located within or adjacent to existing ghettos, and as they accommodated fewer ghetto dwellers than slum clearance displaced, more pressure was placed upon housing in the ghetto. The segregation policies of public housing authorities insured that Black isolation would be promoted further. Just when public housing authorities were ordered to stop promoting segregation, funding for public housing was halted.138 Federal legislation has addressed housing discrimination: the Fair Housing Act of 1968 (82 Stat. 84), strengthened in 1988 (102 Stat. 1619); the Housing and Community Development Act of 1974 (91 Stat. 1111); the Home Mortgage Disclosure Act of 1975 (89 Stat. 1125); and the Community Reinvestment Act of 1977 (91 Stat. 1147). But with inadequate resources devoted to their weak enforcement provisions, and with resistance by realtors and local politicians, these measures have had minimal effect.139 Block-busting and White flight can occur only when some communities are maintained as White domains. When housing discrimination was prohibited, real estate agents developed covert measures to divert Black renters and home buyers from White communities. Such discriminatory practices can be identified, but private, non-profit organizations have carried the burden of doing so. Their effective but labor-intensive "audits" were substantially reduced with the end of CETA, which had supported a variety of community-based anti-poverty jobs.140 Now, fifty years after the emergence to the wider public view of the Civil Rights Movement, we find poverty continuing disproportionately among African Americans. We also find a reduction and weakening of those public policies and social programs that might plausibly be regarded as addressing the systematic disadvantages that constitute the legacy of Jim Crow. 5. Addressing the Legacy I conclude with some comments on moral implications of the pattern I have described. These concern responsibility and rectification. The political community comprising the United States of America, including its direct forbears, through official action and morally relevant inaction, created, maintained, modified, and has declined to eliminate a 137 Ibid., 153-60; N. Denton, "The Role of Residential Segregation in Promoting and Maintaining Inequality in Wealth and Property". 138 D.S. Massey and N. A. Denton, American Apartheid, 51-9, 227. 139 Ibid., 230-4. 140 Ibid., American Apartheid, 229f.

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deeply entrenched racial hierarchy. African Americans, in particular, are subject to disadvantages stemming from officially supported systems of chattel slavery and Jim Crow. Within the framework of this paper, responsibility lies with the political community as a whole. It means, first, accountability for having created and sustained a morally indefensible hierarchy and tolerating its continuation; secondly, an obligation to end systemic discrimination and rectify any related wrongs. As a derivative matter, an obligation to promote rectification lies with all persons who have a moral duty to address injustice, and especially with the members of this political community. The problem I shall discuss concerns rectification. Its theoretical aspect is to identify the principled bases for corrective action; its practical aspect is to design and implement truly corrective measures. I shall comment mainly on the former. In reviewing the First Reconstruction, I suggested two grounds for land reform, which are relevant more generally. The distribution of sufficient good land to freedmen in order to facilitate their economic independence and break the political as well as economic power of the planters would have (a) promoted democracy and (b) provided some compensation to freedmen for their enslavement. I shall comment briefly on these complementary rationales and mention a third. (a) The aim of promoting democracy is not predicated on the just deserts of freedmen, nor would its effective pursuit have benefited only African Americans. As many disfranchised poor whites recognized, they too would have benefited from a land reform program that was occasioned by the need to reconstruct Southern society. Contemporary characterizations of political systems as "democratic" suggest that great weight is often placed on the breadth of formal voting rights. Usage varies, and other factors are of course considered. Criticisms of current political systems as undemocratic, insofar as they exclude, say, women from the electoral process, are not uncommon; but systems have also been called democratic even though they disfranchised women and people of color. Thus the political systems of both ancient Athens and the ante-bellum US have conventionally been characterized as democratic, though most competent adults in them were disfranchised. In any case, the US system is conventionally regarded as paradigmatically democratic, even though it is clear that effective political power attaches disproportionately to centers of economic influence. It is arguable that political democracy would be promoted by eliminating racial (as well as economic) hierarchies. But this is not the occasion for such an argument, and I shall not pursue it further here. (b) The principle of requiring wrongdoers to compensate those they have wronged and the correlative notion that those who have been wronged have a right to compensation, while applicable to those who have been slaveholders and slaves, is of course not limited to such cases. It would have conferred rights upon African Americans who had not been slaves but who had been subjected to the disadvantages and indignities suffered by free Blacks during slavery. It would also have supported claims by poor Whites who had suffered under the planters' oligarchy. I shall concentrate on claims made on behalf of African Americans. An alternative term for compensation here is "reparation". Reparations for slavery have recently been claimed, though they may not always assume conventional notions of compensation, and may also involve considerations of unjust enrichment. I shall not survey the range of recent claims but shall comment on complications that arise when generations have intervened between the wrongdoing and the claim for reparations.

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Racial Junctures in US History and Their Legacy

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Justice requires that a wrongdoer compensate a party he has wronged. If I have taken something of yours, I owe you compensation for the loss, plus any disadvantage you suffered as a consequence. This applies not just to ordinary individuals but also to other entities that can do wrong or be wronged, such as governments and nations. If the US long ago took land that belonged to a Native American nation, then the US today owes compensation to that nation, even if the theft occurred generations ago, so long as the two nations continue to exist. The passage of time creates complications when parties are ordinary persons. Consider a claim for reparations made today by a descendant of slaves against a descendant of her ancestors' owners. The latter is not the wrongdoer and is not accountable for her ancestor's wrongdoing.142 The claimant is not the party originally wronged and may be ineligible for compensation. It is frequently assumed that the magnitude of a reparations claim is determined by a counterfactual test - by how much worse off the claimant is than she would have been if the wrong had not been done. Two complications arise. First, when much time has passed and the current state of affairs has to a significant extent been shaped by decisions made by descendants of the party who was wronged, the counterfactual question may have no determinate answer. Second, it is arguable that current descendants of persons who were enslaved would not have existed had there not been slavery, which means that they cannot be worse off than they would have been had their ancestors not been enslaved, for in the latter case the current descendants would not have come into existence. This suggests that the descendants of slaves lack valid reparations claims based on their distant ancestors' enslavement. Within the framework of this paper, those difficulties have limited force. The claims we are considering would be made, not against slaveholders but against the US government, on the grounds that it supported slavery, allowed slavery to be succeeded by Jim Crow, and has largely tolerated the racial hierarchy that constitutes an egregiously unjust legacy of those institutions. Claims by African Americans who currently suffer under that legacy need not be based simply on injustices of the distant past but can validly be grounded upon the uncorrected consequences of those wrongs, as well as any other continuing wrongs. This paper offers no metric for reparations claims.143 It suggests why they should be taken seriously. (c) An implication of the picture I have presented is that many poor children - which includes disproportionately many Black children - grow up with systemically assured disadvantages. They embark on life without a fair share of the nation's resources and with significantly worse life prospects than their more affluent and less stigmatized peers. They are not responsible for the conditions they have inherited. Nor is it plausible to suppose that their parents are responsible for disadvantages that stem from the racial hierarchy or that their parents can generally be expected to overcome the legacy and improve substantially their children's life prospects. The Second Reconstruction never effectively addressed many of the systematic inequalities that derive from slavery and 141 Owing compensation does not automatically determine what a party should do, as it may be subject to competing obligations. 142 If she has benefited from her ancestor's slaveholding, principles of unjust enrichment may be applicable. 143 Just compensation would not of course be determined by material disadvantages alone. The wrongs done by a racial hierarchy are not merely economic. They involve indignities and other failures to treat subjects with adequate consideration and respect.

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Jim Crow. The related War on Poverty was not won but abandoned; it never came close to ending widespread, deep poverty in the US. The responsibility for correcting the resulting injustice thus lies with the society as a whole. The government has a primary obligation to insure that social arrangements provide a fair share of life prospects for each of its children. No morally defensible system of social organization would fail in that responsibility. The idea that a society has a primary obligation to provide a fair share of favorable life prospects for its children would seem innocuous. It would seems reasonable to go further and suggest that a society is morally required to provide genuine equal opportunity for its children. Even so limited an egalitarianism would seem to have radical implications for practice. It may well require, for example, that bequests from wealthy parents to their children be severely restricted, so that resources can be shared. But even the less explicitly egalitarian formula has radical implications. That it directly concerns only the life prospects of children may be misleading.1 How can poor children's life prospects be improved? Part of the answer must refer to public services that aid children directly, such as schools, which today are not only grossly unequal but are frequently deficient for poor children and thus for many children of color. Another part of the answer must refer more broadly to community conditions as well as family circumstances. Children require adequate housing in well-tended neighborhoods, which vast numbers of poor children still lack. Children require adequate day care when their parents work, that their parents have work that affords a decent income (to provide whatever necessities are not given by public services), and that their parents' work leaves adequate time for them (which means, to begin, that adequate income must be provided by no more than one shift of one job per parent), all of which many families still lack. In brief, children's life prospects cannot be improved significantly without aiding their parents and communities. The implications of a minimally decent concern for children, and the public policies they require, are accordingly broad, deep, and radical. Such an approach would address a good deal of the unfinished business that we face, and it flows from premises that seem difficult to deny.

Bibliography Allen, T.W., The Invention of the White Race, Vol. 2, Verso, 1995. Berlin, I., Many TJiousands Gone, Harvard University Press, 1998. Blackburn, R., The Making of New World Slavery, Verso, 1998. Bush, J.A., "The British Constitution and the Creation of American Slavery", Slavery and the Law, ed. P. Finkelman, Madison House, 1997. Cover, R.M., Justice Accused, Yale University Press, 1975. Davenport, F.G., ed., European Treaties Bearing on the History of the United States and its Dependencies, Peter Smith, 1967. Denton, N., 'The Role of Residential Segregation in Promoting and Maintaining Inequality in Wealth and Property", Indiana Law Review, 34 (2001). Dray, P., At the Hands of Persons Unknown, Random House, 2002. 144 A more satisfactory formula might in any case add "with a fair concern for the interests of adults and of future generations". A fully adequate formula would imply that corrective action be international in scope.

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Ehler, S.Z., and J.B. Monall, trans, and eds., Church and State Through the Centuries, Burns & Oates, 1954. Ellis, Joseph, Founding Brothers, Knopf, 2001. Finkelman, P., The Law of Freedom and Bondage, Oceana Publications, 1986. Finkelman, P., "Making a Covenant with Death", in M.E. Sharpe, ed., Slavery and the Founders, 2nd ed., 2001. Finkelman, P., "The Founders and Slavery", Yale Journal of Law and the Humanities 13 (2001). Foner, E., Reconstruction 1863-1877, Harper & Row, 1988. Franklin, J.H., Reconstruction After the Civil War, 2nd ed., University of Chicago Press, 1994. Franklin, J.H. and A.A. Moss, Jr., From Slavery to Freedom, 7th ed., McGraw-Hill, 1994. Harding, V. et al., "We Changed the World", To Make our World Anew, ed. R.D.G. Kelley and E. Lewis, Oxford University Press, 2000. Harrington, M., The Other America, Macmillan, 1962. Higginbotham, A.L., In The Matter of Color, Oxford University Press, 1978. Hening, W.W., ed., The [Virginia] Statutes at Large, Vol. 2, Samuel Pleasants 1809-23. Kingsbury, S.M., ed., The Records of the Virginia Company of London, Vol. 3, US Government Printing Office, 1933. Kolchin, P., American Slavery 1619-1877, Hill & Wang, 1995. Litwack, L.F., North of Slavery, University of Chicago Press, 1961. Marable, M., Race, Reform, and Rebellion, 2d ed., University Press of Mississippi, 1991. Massey, D.S., and N.A. Denton, American Apartheid, Harvard University Press, 1993. Morris, T.D., Free Men All, Johns Hopkins University Press, 1974. Morris, T.D., Southern Slavery and the Law 1619-1860, University of North Carolina Press, 1996. Nash, G.B., Race and Revolution, Madison House, 1990. Nash, G.B., Red, White, and Black, 4th ed., Prentice-Hall, 1999. President's Committee on Civil Rights, To Secure These Rights, US Government Printing Office, 1947. Rose, W.L., ed., A Documentary History of Slavery in North America, University of Georgia Press, 1999. Tannenbaum, F., Slave and Citizen, Beacon Press, 1992. Urofsky, M.I., and P. Finkelman, eds., Documents of American Constitutional and Legal History, Vol. 1, Oxford University Press, 2002. Washburn, W.E., The Governor and the Rebel, Norton, 1972. Williamson, J.A., ed., The Cabot Voyages and Bristol Discovery under Henry VII, Cambridge University Press, 1962. Woodward, C.V., The Strange Career of Jim Crow, 3d ed., Oxford University Press, 1974. Zangrando, R.L., The NAACP Crusade Against Lynching, Temple University Press, 1980.

299

The Moral Dilemmas about Trying Pinochet in Spain1

Jaime Malamud Goti In 1998, in response to an application from Spanish judge Baltasar Garzön, a British court placed former Chilean dictator Augusto Pinochet Ugarte under arrest while he was receiving medical treatment at a London clinic. The probe clearly singled out the general as the key figure in thousands of abuses perpetrated by military and paramilitary personnel in Chile. The Spanish court had also gathered evidence that implicated Pinochet in the commission of an assortment of crimes beyond his countries' borders.2 The judicial proceedings in England were fraught with jurisdictional controversies concerning mostly the scope of national sovereignty. Among the topics were the authority of foreign courts to try crimes committed within Chilean boundaries and the immunity of a head of state from criminal prosecution for acts performed within the sphere of his office. In his mid eighties, Pinochet's tribulations in England ended when, considering the general too frail to withstand trial in Spain, the British government allowed the general to fly back to Chile. Back in Santiago and after a heated political debate, the Chilean supreme court expedited criminal proceedings against the general court by stripping him off the parliamentary immunity he enjoyed as a senator for life. Thus, to the chagrin of millions of sympathizers of Pinochet, he is now liable to be tried for numerous criminal complaints filed against him. Pinochet is not the only Latin American human rights abuser suspect to be indicted by European courts. In the year 2000, two Argentine military officers are under arrest outside Argentina, awaiting extradition to Spain and France. The international underpinnings of the Pinochet extradition case have spawned an array of illuminating essays on impunity and international justice Most of these papers tackle the issue of the limits imposed by national sovereignty to try criminals for offenses perpetrated within foreign territorial boundaries. Some of them also broach the issue of the present and future of the rule of law in the international realm. There is an interesting and uneasy tension between a serious attempt to end the impunity of powerful state criminals and the decision of judges from First World trying state criminals from peripheral countries such as Chile and Argentina. There is a troublesome sense of inequity that stems from the target of current prosecutions of human rights violations. As events are thus far unfolding, it seems feasible for French, Swiss, Spanish and U.S. courts to try and punish Argentine generals, Haitian

1

2

First published in the Inter-American Law Review 32 (2001). Reprinted by permission of the University of Miami Inter-American Law Review. There are many friends whose patience and help merit my recognition. I have benefited with ideas and suggestions from Paul Kahn, Owen Fiss, George P. Fletcher, Robert Burt, Thomas Pogge, Pablo de Greiff, Martin Farrell, Marcelo Alegre, Carlos Rosenkrantz, Lucas Grosman, Martin Böhmer, Roberto Saba, Paola Bergallo, Laura Saldivia and Juan F. Gonzalez Bertomeu. I am also thankful to Maximo Becu for his incomparable intellectual as well as moral support. Among the latter was the assassination of Orlando Letelier in Washington D.C. and of Chilean General Carlos Prats in Buenos Aires. Furthermore, evidence also pointed to Pinochet as masterminding Plan Condor, a combined military terrorist campaign to suppress "subversives" throughout the Southern Cone. The extradition request, however, was confined to those offenses indirectly perpetrated by Pinochet within Chilean territory.

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Ehler, S.Z., and J.B. Monall, trans, and eds., Church and State Through the Centuries, Bums & Oates, 1954. Ellis, Joseph, Founding Brothers, Knopf, 2001. Finkelman, P., The Law of Freedom and Bondage, Oceana Publications, 1986. Finkelman, P., "Making a Covenant with Death", in M.E. Sharpe, ed., Slavery and the Founders, 2nd ed., 2001. Finkelman, P., "The Founders and Slavery", Yale Journal of Law and the Humanities 13 (2001). Foner, E., Reconstruction 1863-1877, Harper & Row, 1988. Franklin, J.H., Reconstruction After the Civil War, 2nd ed., University of Chicago Press, 1994. Franklin, J.H. and A.A. Moss, Jr., From Slavery to Freedom, 7th ed., McGraw-Hill, 1994. Harding, V. et al., "We Changed the World", To Make our World Anew, ed. R.D.G. Kelley and E. Lewis, Oxford University Press, 2000. Harrington, M., The Other America, Macmillan, 1962. Higginbotham, A.L., In The Matter of Color, Oxford University Press, 1978. Hening, W.W., ed., The [Virginia] Statutes at Large, Vol. 2, Samuel Pleasants 1809-23. Kingsbury, S.M., ed., The Records of the Virginia Company of London, Vol. 3, US Government Printing Office, 1933. Kolchin, P., American Slavery 1619-1877, Hill & Wang, 1995. Litwack, L.F., North of Slavery, University of Chicago Press, 1961. Marable, M., Race, Reform, and Rebellion, 2d ed., University Press of Mississippi, 1991. Massey, D.S., and N.A. Denton, American Apartheid, Harvard University Press, 1993. Morris, T.D., Free Men All, Johns Hopkins University Press, 1974. Morris, T.D., Southern Slavery and the Law 1619-1860, University of North Carolina Press, 1996. Nash, G.B., Race and Revolution, Madison House, 1990. Nash, G.B., Red, White, and Black, 4th ed., Prentice-Hall, 1999. President's Committee on Civil Rights, To Secure These Rights, US Government Printing Office, 1947. Rose, W.L., ed., A Documentary History of Slavery in North America, University of Georgia Press, 1999. Tannenbaum, F., Slave and Citizen, Beacon Press, 1992. Urofsky, M.I., and P. Finkelman, eds., Documents of American Constitutional and Legal History, Vol. 1, Oxford University Press, 2002. Washburn, W.E., The Governor and the Rebel, Norton, 1972. Williamson, J.A., ed., The Cabot Voyages and Bristol Discovery under Henry VII, Cambridge University Press, 1962. Woodward, C.V., The Strange Career of Jim Crow, 3d ed., Oxford University Press, 1974. Zangrando, R.L., The NAACP Crusade Against Lynching, Temple University Press, 1980.

The Moral Dilemmas about Trying Pinochet in Spain1

Jaime Malamud Goti In 1998, in response to an application from Spanish judge Baltasar Garzon, a British court placed former Chilean dictator Augusto Pinochet Ugarte under arrest while he was receiving medical treatment at a London clinic. The probe clearly singled out the general as the key figure in thousands of abuses perpetrated by military and paramilitary personnel in Chile. The Spanish court had also gathered evidence that implicated Pinochet in the commission of an assortment of crimes beyond his countries' borders.2 The judicial proceedings in England were fraught with jurisdictional controversies concerning mostly the scope of national sovereignty. Among the topics were the authority of foreign courts to try crimes committed within Chilean boundaries and the immunity of a head of state from criminal prosecution for acts performed within the sphere of his office. In his mid eighties, Pinochet's tribulations in England ended when, considering the general too frail to withstand trial in Spain, the British government allowed the general to fly back to Chile. Back in Santiago and after a heated political debate, the Chilean supreme court expedited criminal proceedings against the general court by stripping him off the parliamentary immunity he enjoyed as a senator for life. Thus, to the chagrin of millions of sympathizers of Pinochet, he is now liable to be tried for numerous criminal complaints filed against him. Pinochet is not the only Latin American human rights abuser suspect to be indicted by European courts. In the year 2000, two Argentine military officers are under arrest outside Argentina, awaiting extradition to Spain and France. The international underpinnings of the Pinochet extradition case have spawned an array of illuminating essays on impunity and international justice Most of these papers tackle the issue of the limits imposed by national sovereignty to try criminals for offenses perpetrated within foreign territorial boundaries. Some of them also broach the issue of the present and future of the rule of law in the international realm. There is an interesting and uneasy tension between a serious attempt to end the impunity of powerful state criminals and the decision of judges from First World trying state criminals from peripheral countries such as Chile and Argentina. There is a troublesome sense of inequity that stems from the target of current prosecutions of human rights violations. As events are thus far unfolding, it seems feasible for French, Swiss, Spanish and U.S. courts to try and punish Argentine generals, Haitian

1

2

First published in the Inter-American Law Review 32 (2001). Reprinted by permission of the University of Miami Inter-American Law Review. There are many friends whose patience and help merit my recognition. I have benefited with ideas and suggestions from Paul Kahn, Owen Fiss, George P. Fletcher, Robert Burt, Thomas Pogge, Pablo de Greiff, Mai tin Farrell, Marcelo Alegre, Carlos Rosenkrantz, Lucas Grosman, Martin Böhmer, Roberto Saba, Paola Bergallo, Laura Saldivia and Juan F. Gonzalez Bertomeu. I am also thankful to Maximo Becu for his incomparable intellectual as well as moral support. Among the latter was the assassination of Orlando Letelier in Washington D C . and of Chilean General Carlos Prats in Buenos Aires. Furthermore, evidence also pointed to Pinochet as masterminding Plan Condor, a combined military terrorist campaign to suppress "subversives" throughout the Southern Cone. The extradition request, however, was confined to those offenses indirectly perpetrated by Pinochet within Chilean territory.

300 Jaime Malamud Goti

attaches and a Chilean dictator.3 By contrast, prospects of trying Henry Kissinger, McGeorge Bundy and Western European and U.S. political actors and decision-makers and war criminals seem more than remote. The apparent disparity between actors from powerful and not so powerful nations causes a perceptible strain between two basic principles of law and justice: the first is that of defeating impunity as a serious form of inequality within terrorized communities.5 The second is the observance of some minimal evenhandedness required by the rule of law. Whereas one could claim that justice is served every time a human rights abuser is convicted, it is no less true that the rule of law is dubiously compatible with extremely sporadic and selective enforcement.6 Indeed, according to standard conceptions the rule of law is contingent upon the regular and impartial law enforcement. It is true that the notion of the rule of law may allow for certain degree of uneven enforcement based on political necessity and natural catastrophes. What negatively hurts the rule of law is the discrete prosecution of just one segment of the world's state criminals however vicious, when disregard for other equally vicious abusers is grounded in reasons as alien to our notion of retributive justice as the disparity of power in international relations.8 Such considerations allow room for plenty of skepticism concerning the place we actually allot justice. The purpose of this paper is to partake in this debate about the merits and demerits of international criminal justice in prosecuting state criminals. I tackle the topic but from a different perspective than the doctrine of national sovereignty or the tension between the rule of law and an uneven system of international human rights justice. Although I cannot completely detach my own perspective from criticism stemming from sovereignty, I will assume that prosecutions do not depend on power - military, economic or strategic - related differences between the nations states of culprits and judges. I lay out the thesis that, in dealing with "domestic" state abuses, the goals and purposes of criminal justice can only be satisfactorily accomplished by what I call courts "from within", that is, by justices that belong in the same community as do victims and perpetrators. I acknowledge this stance leads to a dilemma: on the one hand, that of ending impunity in accordance with our intuitions and, on the other, avoiding a justice system that is unlikely to bring about the effects we expect from punishing state criminals. I deliberately exclude what may be considered in essence international state criminality as was the case of 3

It evokes the arrest of strongman Manuel Noriega in his homeland Panama to have him tried and sentenced in the U.S., where he now serves a life sentence for his involvement in the international drug trade.

4

It seems thus far inconceivable that a Vietnamese, Costa Rican or Brazilian court successfully extradites Captain Medina for his part in the massacre of civilians in My Lai during the Viet Nam war. Noticeably, none of the living right-wing Franco underlings have ever been investigated let alone indicted for the multitudinous war crimes committed during and after the Spanish civil war. This fact is particularly relevant considering that prosecutions for war crimes such as the summary executions of prisoners are not barred by any statute of limitations in force. J. Malamud Goti, "Punishment, Dignity and Trust". Thomas Scanlon stresses the need for a minimal "evenness" between the legal treatment of analogous cases. (See Scanlon, "Punishment and the Rule of Law".) I prefer a more relaxed view of the principle that some basic impartiality should be observed if we consider the trials of human rights as the stepping stone of a new system of international legality. I concede that the rule of law could still survive the lack of regular enforcement insofar as disparities can be justified as owing to impartial reasons. I give some latitude to the notion of "moral relevance", including political necessity and opportunity as different from reasons stemming from the wealth or militia power of the nations where the perpetrators belong.

5 6

7 8

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Nazi war crimes and crimes against humanity, the Turks' genocidal campaign against Armenian population, and so on. I also limit the notion of domestic state crimes not just to those perpetrated by some individuals against other members of their own community. For the purpose of this paper, the notion of domestic state crimes does not encompass abuses committed by state agents against citizens of the same country but who are also members of particular ethnic and religious groups.9 My point is also based on a certain notion about the goals and purposes of punishing state criminals. First, as some scholars such as Herbert Morris,1 George Fletcher have claimed, a retributive justice system benefits society in that punishment re-establishes the equal status of victims and perpetrators. This appeal to the equalizing function of punishment acquires special meaning in the case of state brutality. Victims of state abuse are not only the thousands of people killed, tortured and incarcerated but also the large segment of population living under constant great fear and instability. These numerous victims of state criminality demand that we resort to punishment as the strongest institutional remedy against shame and loss of self-respect and esteem.12 The perception of our rights hinges on these sentiments which are thus essential to building a rights-based democracy. Yet it seems obvious that the victim cannot recover her lost dignity without trust in the impartiality and competency of the court sentencing the culprit. It follows that to attach an equalizing effect to punishment presupposes the courts' decisions are authoritative: that verdicts be perceived as reflecting the truth about the facts and the right principles and rules. The rather short and barren history of trials of state criminal reveals that the courts have varied considerably both in establishing and weighing criminal responsibility. The largest perceptible difference between these criteria has mostly hinged on whether the perpetrators are tried from within or from without: on whether the justices and the perpetrators belong in the same community. The paramount exponents of trial from without are the post-War II trials of German officials held at Nuremberg. Trials from within are illustrated by the 1985 Buenos Aires trials of the members of the military juntas that ruled Argentina from 1976 to 1983. This distinction concerning the national origin of the judges acquires a particularly salient dimension if we take blame to be the starting point in defining the contours of criminal responsibility.13 This tack, which I will call subjective, contrasts with the traditional practice of establishing criminal responsibility in accordance with certain conditions that render the actor morally responsible, in accordance with certain conditions that render the actor morally responsible, thus detaching it from any particular vantage point. 9

10 11 12 13 14

I acknowledge the fact that the very notion of ethnicity is extremely slippery. (See L.C. Malamud, From the Fat of our Souls.) Ethnic communities may be the concoction of certain policies and ideologies, as some Rwandans claim in relation to the distinction between Tutsies and Hutus. In essence, however, there is a patent difference between the circumstances surrounding the abuses committed in the Southern Cone in the 70s (and the persecutions Carried out by Communist regimes in Eastern and Central Europe) on the one hand and, on the other, those perpetrated against the indigenous population in Guatemala, the blacks in South Africa and the Muslims in Bosnia. H. Morris, On Guilt and Innocence. G.P. Fletcher, Basic Concepts of Legal Thought. J. Malamud Goti, "Punishment, Dignity and Trust". I have especially in mind Peter Strawson's groundbreaking article "Freedom and Resentment", 59ff. For further elaboration on this paper see R.J. Wallace, Responsibility and Moral Sentiments. The crux of this tack is the notion of responsibility generating facts: it consists in establishing that an act fulfills certain properties that render the act worthy of condemnation. While this objective approach

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What becomes decisive if we adopt the subjective perspective in connection with trials conducted from within and from without is the fact that judges address different audiences. A consequence of this is that the "justice" and value of the verdicts do not reflect, at least no entirely, the express legal reasons in which these decisions are couched. Parallel to these express reasons operates implicit - and at times concealed - motives and purposes which originate in the relationship between the court and the audience it addresses. By and large, the justices in Argentine court that tried the generals addressed their nationals; by contrast the audience was, for the judges at Nuremberg, the entire world community, although much could be said for the special relevance of the American, British, Soviet and French audiences. Trials and convictions are meant to teach a lesson and the question of whom this lesson is aimed at becomes crucial. As early as 1946, justice Wyzanski noticed that the Nuremberg Trials would not pursue to teach the German people what Nazism was all about. For the Germans, the trials were simply political in a bad sense.15 Rather, Wyzanski emphasized, they were aimed at persuading a different community, the World community.16 Like all audiences, this targeted audience was sought to become that for which the court would be persuasive, its basis of credibility. Similarly, Telford Taylor, the Chief Counsel for War Crimes at Nurem-

focuses on an act and its consequences, the subjective alternative consists in establishing the conditions under which we are entitled to condemn a certain person by crediting him with inflicting some harm on a third party. (See C.S. Nino, Radical Evil on Trial, and my own Game Without End; also "Una manera peculiar de inculpar", 385.) Thus, the subjective approach involves establishing the presence of certain conditions that make it morally right or fair to condemn an agent or its act. There are two properties about the subjective approach that makes it more attractive than its objective alternative. The first is theoretical. By making responsibility hinge on the concept of blame strips it from any metaphysical contours. Based on the external notion of "responsibility generating facts", considered independently from the stance or attitude in which allotting responsibility originates, the external approach evokes the unconvincing idea of "moral facts". The second feature that makes the internal approach more attractive is essentially practical. It lies the fact that this tack ties more naturally the notion of an offense into the wider picture of victims striving to express the truth about their suffering and having the perpetrators exposed and punished. This tack is narrowly tied to the moral sentiments of the community, especially the victims' resentment and indignation. Placing the victim at the center stage provides a particularly adequate depiction of a recurrent political scene in communities emerging from rampant state criminality. Thus, we think of a blamer in two different senses. The first is that of a person having a legitimate concern in connection with the offense: being a direct or indirect victim, having an interest in preventing future abuses, pursuing the removal of the offender from society, and so on. The second sense refers to our thinking of a blamer according to his or her legal standing: having a right to plea following the proper procedures, being entitled to accuse the perpetrator and denounce him from the witness stand. I use the quotation marks to stress the fact that I am not referring to "justice" as the virtue of certain decisions. I use the term to identify with some vagueness the outcome of applying certain (impartial) reasons and evaluations that are characteristic of the act of judging. By justice I also mean the perception, external to the act of making the decision, that it consists of something other than simply imposing coercion by the courts. In this sense, "justice" is linked to the notion of authority: that the courts are envisaged as knowing the facts that lead to acquittals and convictions and apply the appropriate rules to evaluate the action in point. 15 16

17

The Moral Dilemmas about Trying Pinochet in Spain

Jaime Malamud Goti

See C.E. Wyzanski, "Nuremberg - A Fair Trial? Dangerous Precedent". Judith N. Shklar is of a different opinion as to the purposes of the trials. For her, they were aimed at "eliminating the Nazi leaders in such a way that their contemporaries, on whom the immediate future of Germany depended, might learn exactly what had occurred in recent history." See J.N. Shklar, Legalism, 154f. Shklar admits, however, that the trials were not addressed to re-install a democratic system in Germany. Wyzanski distinguishes between persuasive justice and sheer propaganda. It was clear that, for the Germans, it would largely become the latter.

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berg, understood that the purpose of the trials of Nazi criminals was "the benefit of mankind". The particular relevance of these premises lies in that courts enjoy a certain base of authority: a segment or group for which its decisions are credible in two ways. The first relates to the ability of the court to discover, select and support itself on the relevant facts; the second, to its impartiality in grounding its decision in the correct principles, rules and values. Credence in the "justice" of the court's decisions among those affected by its verdicts and by other members of the community enables the court to bring to a closure those conflicts brought to its decision. Thus, I submit that the relationship between the authority of the court exceeds the formal reasons that ground the verdicts. There are unexpressed ways in which the relations between the courts and the specific audiences they address model the content of their verdicts. This principle seems evident yet its consequences are not completely apparent. I set out to demonstrate that, in this connection, only trials held/ram within the community of the perpetrators are likely to fully justify a criminal conviction. To illustrate my point I draw on the 1945 trial of Ernst von Weizsaecker in Nuremberg and the 1985 trial of Orlando Agosti by the Federal Court of Appeals in Buenos Aires. - Ernst von Weizsaecker was secretary of state at the German foreign ministry between 1938 and 1943. He was charged under seven counts in the Ministers Case, one of the trials presided over by one of the three International Military Tribunals set up at Nuremberg. Von Weizsaecker was at first convicted on two counts: crimes against peace (waging war of aggression) and crimes against humanity.20 The first count was reversed upon petitioning the tribunal for review. The accused could demonstrate his opposition to Germany's expansionist policies and that, at the time of the invasion, he had revealed to other officials his personal opinion that such policy would lead Germany into a catastrophe. The assumption remained that, having served as the second official at the foreign ministry, he should have known of the genocidal policies of the Third Reich and more concretely, of the deportation of Jews to Eastern Europe and of their ultimate elimination. The tribunal believed von Weizsaecker's allegations that he had opposed the Reich's policies and that he had actively plotted against Hitler. The court also believed 18 19

20

T. Taylor, Final Report of the Secretary of the Army on the Nuremberg War Crimes Under Council No 10. Elsewhere, I have distinguished different levels of authority depending on whether it encompasses only the parties or the community as a whole. This distinction is relevant, for instance, in the effects of a criminal conviction. Only if the court is authoritative to the victim will benefit the latter in restoring him a sense of dignity the offense annulled. Belief in the correctness of the court's decision by the community at large will restore the victim's self-esteem. See J. Malamud-Goti, "Punishment, Equality and Trust". The extent of this credibility or authority is, however, relative to the nature and magnitude of the conflict. It is somewhat obvious that given their nature and size, certain conflicts enacted in the drama of the court regardless of the prestige of the judiciary or the personal authority of the justices. The Lorena Bobbit, Rodney King, Dan White \ Harvey Milk and O.J. Simpson cases illustrate how, even in a strong institutional system such as the US, certain trials depicting the collision of segments such as those of women an men, blacks and whites, and gays against straight thwart the credibility of the courts. These contends discredit the courts' verdicts for at least one of the competing sector. In the O.J. Simpson case, the white segment refused to accept (and will continue to do so that the culprit should ever have been acquitted. The opposite segment, that of American blacks believed (and still does) that the reasons to sentence Simpson to compensate the Nicole Brown's relatives were anything but an act of "justice". The authority of the courts would be permanently damaged by widespread incredulity if cases such as Simpson's became more frequent. As I later explain, I call these trials "political" in a non-pejorative sense.

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his claim that he had remained in office for the purpose of circulating vital official information to his fellow conspirators. The tribunal found that the accused should have expressed his disagreement with Hitler's racist policies to SS official when they queried on this matter. Thus, in not having completely discharged his moral duties, the tribunal found the culprit guilty and sentenced him to seven years in prison of which he ended up serving only one. - Brigadier General Orlando Ramon Agosti was the commander in chief of the Argentine air force and member of the military junta that overthrew Isabel Peron in March 1976. Together with his two comrades, the commanders of the navy and the army, he was brought to trial and accused of being responsible for the multiple offenses perpetrated by personnel under his orders. Since the terrorist tactics had been planned and decided at the highest echelons of each of the three military branches, Agosti was accused of being the intellectual perpetrator of innumerable abuses. These comprised multiple disappearances and assassinations, a multiplicity of acts of torture and the massacre of over a hundred detainees at a clandestine detention center that operated under the control of the air force. The federal court dismissed most of the charges against Agosti but still found him guilty of five counts of torture and three of robbery. He was sentenced to four years and six months of imprisonment.21 Our emotions play out differently in both cases. It is true that Continental and Latin American judges enjoy sufficient leeway in sentencing to render Agosti's conviction formally consistent with the legal standards in force. It is also true, nevertheless, that the four and a half year sentence does not reflect the harshness we expect from taking seriously three counts of robbery and five of torture. The von Weizsaecker case instead seems overly exacting for any official in Hitler's Germany. Most of us would not be inclined to consider him a genuine hero rather than a criminal. Yet both decisions, however dissimilar in nature and severity, may be considered authentic "acts of justice".22 What makes the severity of both decisions so radically asymmetric is the impossibility of confining the blame to strict considerations about the facts and legal and moral values. This process was strongly influenced by the political circumstances in which the verdicts were handed down and their anticipated impact. I want to stress that both were "political trials", not in a pejorative sense that suggests the utilization of the justice apparatus to favor allies or eliminate the politically undesirable. These trials did not hinge on the principle that Goebbels described as "this man must go".23 They were not political like the Dreyfus case or trials of dissidents under Stalinism. In ways that require distinctions, both were political trials in a morally neutral sense. Briefly, I call political in the morally neutral sense those trials that radically split society on politically sensitive issues. The passions enacted in the court split society in two factions that overflowed the authority of the courts: whatever the outcome, members of at least one of the segments epitomized by the parties would not accept the verdict as an impartial act of justice. As human rights trials from within, those of the Argentine generals were political in the sense that the OJ. Simpson and the Rodney King trials were political. An exponent of justice from without, instead, the Nuremberg trials linked the culprits' actions to the roles they had played and which were contingent upon a political system. Those who thought it was not for foreign judges to condemn the system or its roles rejected the court's verdicts as genuine acts of justice. Nazi 21 22 23

See A. Garro and H. Dahl, "Legal Accountability for Human Rights Violations in Argentina", 427 See fn. 6. See J.N. Shklar, Legalism, 174.

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sympathizers shared this opinion with those who believed that trying political systems is way beyond the mission of the courts. Von Weizsaecker was tried and convicted from without the complexities of the Nazi Germany culture. The German culture itself was on trial.24 It seems reasonable to assume that, through their verdict, the Allies' judges reflected the horror and the indignation aroused by the discovery of the gas chambers and the mass graves. The historic prestige of the Nuremberg trials lies with the determination to expose before the world the genocidal policies and the enslavement of entire civilian populations by Nazi Germany. These policies, the tribunal exhibited, were not the outcome of a fistful of lunatic members of Hitler's party and a limited number of officers of the SS but of an evil political system. It seems thus plausible to assume that by convicting von Weizsaecker the court set out to reveal that serving a delinquent regime as politicians or bureaucrats was itself reprehensible. The trial was on Germany as a whole.25 Thus, only opposing the genocidal procedures and terrorist practices would acquit an officer from the blame even if doing so had meant certain death. It is true that this view resulted from the criterion that responsibility required that the culprit had not only held a certain formal post but also that he violated a substantive moral principle. But, by demanding overt opposition to Hitler's policies the court was imposing on von Weizsaecker a particularly stringent moral duty. Such strict view was the consequence of passing judgment from without the realm where directly or derivatively, through positive acts or omissions, millions of people contributed to the criminal design of the Nazi system. It thus seems obvious that the court's audience was not the German people on whom the impact of the verdicts was not central to the court. It can be inferred that, for the justices at Nuremberg, a new German democracy could have never been built through the process of subtly sorting out those individuals who were morally fit to build the new German democracy from among the throngs of Nazi followers. In the eyes of the judges at Nuremberg that undertaking demanded a fresh start. The Argentine tribunal, instead, tried the facts from within the culture of the "dirty war" in which thousands agents - involved directly and indirectly - caused the disappearance and the death of thousands of persons terrorizing the entire population. Unlike the Nuremberg trials the audience to which the verdict was addressed was the same as that in which the perpetrators belonged. The impact the decisions were expected to effect was also different. Much as the great majority of the politicians and functionaries of Argentina's post-dictatorial community, Argentine justices had been players in the corrupt system. They had served as members of the dictatorship's judicial apparatus and, in spite of not having been the target of concrete accusations for their behavior during that period, their election by the president brought about some adverse reactions by some human rights activists and progressive politicians. By and large, and not without reservations, the population believed in these judges (insofar, at least, as their verdict did not upset their expectations). It also seems clear that a different choice of judges would not have elicited a better outcome. The appointment of new and inexperienced magistrates would have elicited equally pungent accusations from right-wing quarters. It would have convinced them they were being tried by a kangaroo court, that the appointed judges were directly charged with convicting the defendants. Similar to the process of jury selection, electing the judges becomes crucial to the outcome of political trials in which the attainment of a basis of authority becomes essential to a democratic project. 24 25

Ibid., 147. Ibid., 147.

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The starting premises of the trials of von Weizsaecker and Agosti necessarily distance the nature of the resulting verdicts. In Argentina, prospects of setting up a democracy compelled the judges to concoct distinctions to establish and gradate responsibility on the basis of peculiarities that we commonly regard as political. Such distinctions were a necessary step toward building a democracy under the same political leadership that had - in some way or other - largely acquiesced to the 1976-1983 terrorist regime. This peculiar process led judges and prosecutors to overlook some facts and forget others. Nations are built, explains Benedict Anderson, around great remembrances but also trough obliviousness. 6 Some degree of oversight and forgetfulness are intimately connected with the practice of blaming. Blame serves the purpose of simplifying social facts by singling out the morally relevant cause of some harm. We thus blame those who cause our suffering by transgressing our moral principles and values. This descriptive approach, however, provides no insight into the actual appeal of blaming wrongdoers as a social practice: The why and the when we actually blame agents for their legal and moral infringements. To account for the latter requires resorting to a manipulative, forward-looking, version of blame, which I believe, requires two conditions. The first is emotional: we cannot claim to seriously sustain a moral principle if breaches of it do not arouse emotions, largely resentment and indignation. Second, blaming requires that we implicitly or explicitly expect to provide reasons to discourage the wrongdoer and others from doing it again. Prosecutions and trials are forms of making our blaming public, which implies the expectation that others share our emotions and background assumptions about factual and moral beliefs. When some degree of support is hopeless to us, blaming others publicly loses its basic appeal. In the 40s and 50s, by this token, we would not have expected a large enough segment of the community to share our privately held view that many industrialists were blameworthy for polluting our rivers and lakes. In contracting an infectious disease, the community at large turned their blame to the intoxicated water drinker or the reckless swimmer. The same is true with the effects of state terrorism and the process of targeting our blame. In the eyes of many Argentines it was also the victims' recklessness that caused their suffering in the hands of their abductors and torturers.28 Devoid of its moral underpinnings blame frequently befell the victim hoping this would persuade others to adjust to the tyrant's demands. These variations in the practice of blaming are peculiar to political transitional processes. I take the case of the 1973-75 systematic assassinations by ultra-right wing groups in Argentina. At the times of the post-dictatorial human rights trials, the focus of the prosecutions were almost exclusively military officers. Accidentally, unwittingly and even unconsciously prosecutors failed to take action against ultra right-wing Peronista henchmen for the systematic assassination of dissidents. The single most egregious abuse perpetrated by this group was the March 1973 massacre of their rivals of the Peronista Youth near the airport where Peron was expected to land on his return from his long exile in Spain. Hundreds of youths were slaughtered in this gruesome incident, yet it is likely that if these abuses had not been overlooked, prosecutions of 26 27 28 29 30

B. Anderson, Imagined Communities, ch. 11. See B. Williams, "Morality and the Emotions", 207ff. I deal with this topic in Game Without End. See S. Holmes, Passions and Constraint. See E.M. Anderssen, Dossier Secreto.

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members of these groups would have been viewed as a political devise geared to advance the partisan interests of the politicians in office. This belief would have reinforced the political nature of the trials in the non-pejorative sense I have explained. The effect would have been the loss of the courts badly needed basis of authority. What caused the obliviousness was thus emphasis on consensus in the attainment of democratic authority. Prosecution and conviction of military officers was itself an example of selective blame. In the process of seeking for itself an authoritative base among its domestic audience the court convicted five out of nine members of the military juntas that ruled Argentina between 1976 and 1983. Furthermore, only two defendants were awarded life sentences despite the fact that all of them were convicted on charges that, by ordinary standards, warranted the harshest verdicts. To reach this outcome, the court had repelled a move by the prosecution to establish the responsibility of each commander as contingent upon the activities of the juntas under which each one had served. The move by the prosecution was well grounded in that it each of the four juntas that ruled Argentina between 1976 and 1983 had formally held supreme military control over the operations that concluded in the thousands of assassinations and disappearances. Furthermore, there was substantial evidence pointing to the fact that there had been enough deliberation among members of each junta to credit them with full knowledge of what was happening. This created the presumption that all members had been equally cognizant of the repressive scheme as well as the ongoing terrorist campaign. The decision to establish the responsibility of each defendant separately provided the court of extra freedom to gradate the accountability of each commander. In this process of establishing different degrees of responsibility among some defendants and acquitting the rest the court employed a high degree of selectivity including the dismissal of numerous charges. Formally, the court's criterion on responsibility lied with the culprits' actions, positive and omissive; informally, the tribunal also relied on each force's comparative role in the criminal campaign as well as the player's public image. The actual standards - that resulted in Agosti's extremely light sentence - were based on complex and politically sensitive criteria. The outcome would have been inexplicable without this sensitivity that partly accounted for domestic public opinion. I am doubtful, however, that the trial's approach was actually successful in attaining widespread credibility among most segments of society. I contend that failure to prosecute ultra-right wing Peronista vigilante groups and differentiating between the military top officers was the right strategy to avoid fracturing the polity into two unwavering rival segments. This fracture furthermore corresponded with the social split that wound up in state terrorism. In passing judgment, a trial from without would have been impervious to these consequences. I later return to this topic. The difference between courts from within and from without is crucial. In the process of building for itself a basis of authority the former risks surrendering too much moral ground to the political. The latter instead seems too prone to oversimplify the political reality of the community where the perpetrators belong. Because of its stronger proclivity to radically split the population, these trials dramatically limit the formation of judicial authority. Two Rwandan high officials - who refused to convey whether they considered themselves to be Hutu or Tutsi - assured me that, in assuming that the barbaric persecutions had been based on clearly differentiated ethnicities, national and international human rights trials in their country had artificially re-created their tribal identities. Through the process of blaming Hutus, the criminal proceedings had a strong impact in

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shaping the country's subsequent reality. The consequence was the lack of credibility of the courts among the Hutu. In fact, they reproduced one of the achievements of the Belgian colonial policy, namely that of stringently splitting the native population into two clearly - and artificially - confrontational native groups. It is true that the ethnic undertones clearly differentiate this case from those of Chile and Argentina. It provides an example, however, of how formalized blame may contribute to strengthen division and, eventually, deepen antagonism too. Formalized blame is a powerful factor in shaping the political and social reality of a community. This applies of course to post-Pinochet Chile. There is little doubt that Pinochet committed heinous crimes in the most orthodox sense. But some state criminals like him have millions of followers many of whom do not hesitate to take to the streets to express their disavowal of the criminal investigations; especially those conducted by a foreign judge or prosecutor. The effects of a hypothetical trial and conviction of Pinochet by a court from without are unpredictable at best. Trials from within seem far more promising. The direct participation of the justices in the life of the dictatorial community lead to the politically based discriminating decisions I have been mentioning. The consequence of applying to the Argentine military the standards applied to von Weizsaecker would have split society into two camps: the first would have encompassed those who directly or indirectly supported the military regime and its tactics. The second would have consisted of the regime's direct and indirect victims.31 This predicament, similarly artificial to that of the Tutsies and Hutus, would have stripped the sentencing tribunal from minimal authoritativeness. Clearly, authority is not achievable in a society split into two strongly contending factions. If not neutrality, authority can only emerge in a community where a large segment would place itself inside a gray area where they qualify their allegiance to their cause. In this area, citizens must be amenable to acknowledge that there are grounds in which the party they support may have gone wrong. Without gray areas, it is very likely that each faction will attribute the conviction of members of their own side to some association between the court and the contending segment. In selecting the relevant deeds and lay out a different standard for conviction a court from within would have taken an entirely different approach. As the Argentine case suggests, in allotting responsibility, it was the fact of the justices and culprits belonging in the same community that resulted in responsibility limiting criteria. Agosti's sentence may have caused discontent among some human rights activists and a few politicians who aligned with them, but it was never the cause of serious frustration. As it happened, the court avoided a major social split and in this way improved the chances of a successful political transition. In connection with the goal of advancing democracy, the task of a court charged with trying Pinochet from within would be twofold. First, it will have to generate widespread awareness about the past: to establish the way in which state terrorism actually took place, the extent and style massive violations were ordered, encouraged and tolerated from the top echelons of the state apparatus. This is an enlightening endeavor: it stems from the moral purposes of the trial, namely, as I later explain, the attainment of conditions that justify punishment. Second, based on extra-legal and moral grounds the tribunal must craft subtle distinctions among the thousands of actors that directly or obliquely, through 31

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To define indirect victims I pick on Bentham's criterion that crime generates among all members of a community fear from suffering from an infringement analogous to that one that the concrete victim suffered.

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positive acts or omissions participated in the "dirty war". A "dirty war", it seems too obvious to mention, demands the participation of a vast segment of the population. In such environment, some individuals had been at one time perpetrators and victims at another. The Chilean and Argentine experiences reveal that, turned into wrongdoers themselves many victims betrayed their comrades. In a terrorized community breaches of intimate relations were frequent and trust was often betrayed. There were desertions among friends and colleagues; there were those who failed to aid and succor members of their inner circle. Codes of ethics were pervasively overlooked. To take some salient examples, physicians refused to assist those in need of attention and most lawyers rejected to furnish legal counsel to the families of the disappeared and detainees undergoing systematic abuses. The task of allocating and weighing individual moral responsibility within a terrorized community - as were those of Germany and Argentina - is a complicated endeavor. As Sartre expresses it in The Dirty Hands, we are all victims and at the same time accomplices. If we are thoroughgoing in trying the abusers from without, our determination to convict Ernst von Weizsaecker presupposes - legally and morally - that we also indict hundreds of high ranking officials who were knowledgeable of the Nazi atrocities and legally required to report them, thwart their execution and so on.32 When the abusers are tried from within placing blame becomes an entirely different proposition. Even if criminal blame were to zero in exclusively on the inner circle of power and the most conspicuous murderers and torturers, the cases of Agosti and Pinochet suggest that this process is intricate at best. Decisions would require a high degree of selectivity grounded in political considerations and a gradation of responsibility based on predictions on the verdict's anticipated consequences. Teasing out from the responsibility of the members of the inner circle that of the hundreds of subordinate agents who also were, by normal standards, morally and legally responsible of torturing and murdering may prove to be extremely artificial. This differentiated treatment in favor of serious transgressors is likely to be devoid of any justification other than that based on furthering democratic authority.33 It is clear that allocating blame from without should not be quite as taxing save perhaps for logistic limitations and time constraints. Telford Taylor stresses the importance of expediency and thus weighing the available evidence in selecting targets for prosecution became a critical factor.34 Trials from without will very often threaten the democratization process. Those charged with exercising prosecutorial discretion are placed in a position that could easily lead to threaten the democratic process. The outcome would be an extreme polarization such as that of Tutsies and Hutus. In Argentina, Chile and Uruguay, the dramatic split between "crusaders" and the "subversives" would now turn into one between the "guilty" and the "innocent". This new split would rekindle old conflicts and generate an infinity of tensions caused by the intense resentment among members of both factions. But these consequences are only contingent outcomes. What is certainly not contingent in a society thus split is the impossibility of authority. Authority becomes unattainable because, in such a setting, there is no room for impartial allocation of blame. In this scenario, those convicted will per force view the verdict as scapegoating, 32 33

It is clear that the Nuremberg Tribunal became aware of these difficulties. Robert Burt suggests that this approach is a genuine source of compassion. I support his view which may apply to some officers who were legally responsible for serious wrongdoings.

34

See T. Taylor, Final Report of the Secretary of the Army on the Nuremberg War Crimes Under Council No 10.

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vengeance or both, rendering the trials political. Analogously, acquittals will be interpreted as resulting from some form of alliance with the ultra-right. The thesis I espouse may raise two kinds of interrelated objections. The first is, in the case of trials from within, conflict compels judges to attach too much import to the political. They may be viewed as weighing too thoroughly the (political) consequences of their decisions for these to deserve our respect as impartial acts of justice. In favoring this kind of trials, I strip them from their justification as a source of justice in the broadest sense. The critique would claim, in other words, that I reduce the meaning of convictions and acquittals of state criminals to an essentially political question. Furthermore, in providing the wrong incentives, sensitivity to political effects is likely to backfire: it may convince the military that being restive intimidates judges thus reducing the likelihood of convictions.3 The second objection is that the verdicts that result from these trials clash with our notion of "just punishment". What seems to follow from differentiating trials from within and trials from without is that just deserts are central only to the latter. I respond to the first objection here and devote the following section to the second. I have elsewhere espoused the thesis that the justification of punishing state criminals lies in the dignifying - and in some relevant sense equalizing - effect of punishment.36 By establishing the truth and the moral meaning of the facts, criminal convictions, for this thesis, have the primary effect of dignifying the direct and indirect victims of the abuses. State terrorism has a powerful influence on the community at large and the individuals' perception of their own rights. Confusion, uncertainty and constant fear cause people to forsake their ideals and betray their loyalties and principles. This process leads to shame and guilt and, consequently to the loss of our self-respect and esteem and awareness of our rights. In Chile, Argentina, Uruguay, Rwanda and Guatemala, victims of state terrorism were not only the tortured, the murdered and those who were close to them, but were also those who suffered the humiliating experience of securing their survival by adjusting to whimsical impositions. The latter are the innumerable indirect victims of state terrorism. Consistent with this approach punishment ensures the victim an equalizing effect: the attainment of respect and consideration others enjoy.37 This effect does not benefit the direct victims only, but also those who experienced fear of becoming the victims of future abuses; punishment, also quells the resentment and indignation that result from the wrongdoing.38 But to attach an equalizing, self-respect-building effect to punishment presupposes that the courts' decisions are authoritative: that by convicting or acquitting verdicts reflects the truth about past events. It is idle to expect that the victim can give fulfill his retributive desire and recover his dignity without trust in the competency and impartiality of the courts. Some minimal authority is still essential to terminate conflict even for one who disagrees with this forward-looking retributivist approach. And attaining this degree of authority seems far more likely result from trials from within for two reasons that sharply differentiate them from trials from without. The first one lies in that, according to the reasons I have laid out, the former are much less likely to have a 35

36 37 38

I am in debt to Thomas Pogge for pointing out this possibility. I should add that the reason such possibility was not present in the case of trials from without, was the consequence that the latter were frequently backed by a strong protective military presence. See J. Malamud Goti, 'Punishment and Rights Based Democracy"; Game Without End; 'Punishment, Authority and Trust". See for instance, C.K.B. Barton, Getting Even, ch. 2. See, e.g., J. Hampton and J. Murphy, Forgiveness and Mercy; also, P. Strawson, "Freedom and Resentment".

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polarizing effect than the latter. The second is more obvious; it stems from the (physical and cultural) proximity between the court and the society where state terrorism took place. Closeness; more precisely cultural closeness, allows the audience to better witness and understand the debated arguments39, which in turn makes verdicts credible. When I stress the requirement that courts be authoritative I have in mind two different levels at which the courts may muster respect. The first resides in the belief that the court's conviction implies more than sheer violence, that the court is a legitimate source of coercion.40 This notion of authority correlates with that of justice and punishment as opposed to scapegoating and revenge. In this sense, the legitimacy of the verdict lies in that it originates in the correct source and that is thus entitled to enforce its ruling. To claim that the courts have authority at a second level means that, in grounding their decisions in morally acceptable legal rules principles and rules, they are conveying to the victim that he is right in experiencing resentment, that his claims stem from reasons genuinely based on justice.42 This idea of authority points to the ways in which verdicts affect direct and indirect victims. These effects are based, as I pointed out, in some notion of justice and thus cannot be confined to a politically based apportionment of responsibility. A sizable portion of a brutalized citizenry has no perception of their own rights and thus ignores de moral relevance of the facts. It is the role of retributive justice to generate this awareness, enabling the victims to press their claims against the government and the individual transgressors. In the domain of punishing state crimes the political and the legal are very much intertwined, but clearly the latter does not engulf the former. I now turn to the issue of just deserts and retribution. In the Human Condition, Hannah Arendt confronts us with the perplexing paradox that we can forgive only what we can punish and we can only punish what we are in a situation that makes forgiveness possible. This constraint upon punishing the most nefarious crimes in history seems to clash with our sense of justice and deepest emotions. It is evident to us that only by inflicting pain can we allay the outrage and abomination aroused by Hitler, Pol-Pot, Stalin and Pinochet. Rather than punishment proper, however, limited to just retributive reactions, these passions lead us more in the direction of what we characterize as revenge. I have argued that, unlike revenge, we attach to punishment the capacity to bring conflicts to a closure and to restore to the victim the dignity and self-esteem that the abuser denied him. This can only happen if we meet the conditions required for punishment to bring about desirable moral consequences. I have in mind the requirement that the judges enjoy sufficient moral authority to muster enough trust in their impartiality. Furthermore, the reasons that support the verdict should be sufficiently general to convince not only the victim, but also all reasonable members of the community, including a reflective perpetrator.

39 40 41 42

43

Carlos S. Nino has emphasized this point in his Radical Evil on Trial. In The Concept of Law, H.L.A. Hart appeals to this notion which he calls the rule of recognition, the acknowledgment that the court is the source of binding decisions. See R. Flathman, The Practice of Political Authority, 156-158. I can think of a third level at which the court's rulings garner widespread support from the population which thus legitimizes and reasserts the victim's claim. For reasons of succinctness 1 set aside this third conception of authority in spite of its relevance. In the absence of a civil authority (e.g. authoritative courts) to exact the suffering, Kant himself conceives of the pain as revenge rather than punishment. Unlike punishment, revenge is unfit to bring conflict to an end.

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This goes to show that there cannot be a "just retribution" of radical evil if we refrain from exacting particularly painful and debasing forms of chastisement. Appeal to such treatment, as Kant reminds us, would annul our own dignity thus defeating the very purpose of punishment. It seems indeed that no such punishment can fit wrongdoing that we characterize as radical evil. Retributivism conceives of punishment as returning evil where evil originated. How can we then even think of meting out just punishment on the genocide perpetrated by the Nazis and the Kmer-Rouge? There doesn't seem to be a straightforward answer to this question simply because these deeds fail to fall within the realm of moral discourse. The assertion that the Nazis acted wrongly, unjustly or badly seems simply nonsensical. There are in fact no appropriate moral qualifications for the acts performed under Pinochet or the protection of the Argentine juntas. There isn't either an appropriate punishment or the possibility of actual pardon. These facts strip society from the resources required by what we could phrase as "doing precise and complete justice", these boundaries it seems that the best option is to pursue other morally desirable goals such as the furtherance of the most just attainable political arrangement. I hope my explanations warrant my skepticism about the consequence we can reasonably expect from justice imposed from the outside. This skepticism becomes all the more justified when, rather than international tribunals, retributive justice is left in the hands of municipal courts. I relapse on my introductory caveats. First, this principle, does not, of course, encompass the trials of abuses committed in the course international wars nor genuine inter-ethnic conflicts. Any attempt to set up a Yugoslavian domestic court to try Serbs for crimes committed against Muslim populations - and vice versa - seems doomed from its inception. In such cases, the very existence of domestic courts seems impossible. Second, the thesis I have laid out should not be interpreted as a rejection of coercive practices in general. Investigations and reports by foreign countries and human rights organizations deserve full support and so do embargoes and trade sanctions aimed at compelling a regime to end inhumane practices and, eventually to surrender its power to elected authorities. We should even support efforts of foreign administrations to try and punish members of their own ranks. This does not comprehend the endorsement of justice imposed from the outside. My main contention is that when foreign intervention consists in the riddling question of criminally blaming certain actors, courts in foreign countries thwart complicated processes whereby contending segments reach peace agreements and "gag accords" 6 that over time may turn into some kind of "reconciliation". Courts from the outside may also interfere with strategic forgetfulness and with a community determination to pardon what can (if anything at all can) be pardoned. These trials also run the risk of transgressing the Kantian moral reason that demands the intervention of an acknowledged civil authority: absence of an international civil society reduces the notion of punishment to that of the vengeful infliction of suffering.4

44 45 46 Al

See I. Kant, Political Writings, 197. C.S. Nino, Radical Evil on Trial. See S. Holmes, Passions and Contraint. I. Kant, "Concerning Duties to Others", 125.

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Bibliography Anderson, B., Imagined Communities, Verso Press, 1983. Anderssen, E.M., Dossier Secreto, Westview Press, 1992. Barton, C.K.B., Getting Even. Revenge as a Form of Justice, Open Court, 1999. Flathman, R., The Practice of Political Authority. Authority and the Authoritative, University of Chicago Press, 1980. Fletcher, G.P., Basic Concepts of Legal Thought, 1996. Garro, A., and H. Dahl, "Legal Accountability for Human Rights Violations in Argentina. One Step Forward and Two Steps Backward", Human Riglas Law Journal 8 (1987). Hampton J., and J. Murphy, Forgiveness and Mercy, Cambridge University Press, 1988. Hart, H.L.A., The Concept of Law, Oxford University Press,1967. Holmes, S., Passions and Constraint, Chicago University Press, 1995. Kant, I., Political Writings, ed. H. Reiss, transl. by H. B. Nisbet, Cambridge University Press, 1970. Kant, I., "Concerning Duties to Others", Ethical Philosophy, ed. I. Kant, translated by James W. Ellington, introduction by W.A. Wick, Hackett Publishing Company, 1988. Malamud, L.C., From the Fat of our Souls, University of California Press, 1991. Malamud Goti, J., "Punishment and Rights Based Democracy", Criminal Justice Ethics 10(1991). Malamud Goti, J., "Una manera peculiar de inculpar. Lo que quedö de los juicios a los militares". El derecho penal hoy. Homenaje al Profesor David Baigun, Editorial El Puerto, 1995. Malamud Goti, J., Game Without End. State Terror and the Politics of Justice, University of Oklahoma Press, 1996. Malamud Goti, J., "Punishment, Authority and Trust", published as "Castigo, autoridad y confianza", SELA papers, 1999. Malamud Goti, J., "Punishment, Dignity and Trust", SELA papers, 1999. Malamud Goti, J., "Punishment, Equality and Trust", SELA meetings publications, 1999. Malamud Goti, J., Poder y justicia despues del terror, Ediciones de la Flor, 2000. Morris, H., On Guilt and Innocence, University of California Press, 1976. Nino, C.S., Radical Evil on Trial, Yale University Press, 1996. Scanion, T., "Punishment and the Rule of Law", Deliberative Democracy and Human Rights, ed. H.H. Koh and R.C. Slye, Yale University Press, 1999. Shklar, J.N., Legalism. Law, Moral and Political Trials, Harvard University Press, 1986. Strawson, P., "Freedom and Resentment", Free Will, ed. G. Watson, Oxford University Press, 1982. Taylor, T., Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10, Washington DC 1949 (William S. Hein & Co., Inc., 1997). Wallace, Responsibility and Moral Sentiments, 1996. Williams, B., "Morality and the Emotions", Problems of the Self, Cambridge University Press, 1973. Wyzanski, C.E., "Nuremberg - A Fair Trial? Dangerous Precedent", The Atlantic Monthly, April, 1946.

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Comments on: Jaime Malamud Goti, "The Moral Dilemmas About Trying Pinochet in Spain"

Christian Tomuschat Jaime Malamud Goti advances many arguments in an attempt to show that in the case of grave human rights violations trials "from within" should be preferred to trials "from without". Basing himself primarily on the experiences gained in Argentina and Chile, he opines that judges outside the national context are not able fully to understand the context of the crimes that were committed. Following a somewhat abstract and rigid logic of justice lacking the necessary political ingredients, such external judges would run the risk of handing down verdicts deprived of the necessary legitimacy, not acceptable to the audiences concerned. Furthermore, he hints that prosecution of persons charged with human rights abuses would normally be directed against nationals of Third World countries, while persons from the First World would as a rule remain immune from being made accountable through judicial enforcement processes. In principle, Goti's position seems to be commendable. Whenever a nation puts on trial former leaders who have led it into chaos and crime, it demonstrates by embarking on that course that it has definitively distanced itself from its criminal past. What was justified in that past as measures of emergency, or was not justified at all - the plans for the "final solution" of the Jewish question were never disclosed to the German people -, is then evaluated again against the yardstick of legal and moral principles common to all civilized nations. Thus, commencing trials against the former power holders testifies to the degree of maturity and consolidation of the rule of law that has been reached after the demise of dictatorial arbitrariness. One may conclude that a nation which is able to conduct such trials has found again - or for the first time - a considerable degree of internal cohesiveness. In principle, therefore, domestic trials must be deemed to constitute the preferred method of prosecution if and when in fact criminal prosecution is the chosen option. Obviously, in all countries facing similar problems the first and primary alternative consists of adopting or rejecting the principle "Let bygones be bygones". There will always be an important fraction of the population advocating amnesia and oblivion, either out of fear that intervention by judges might disturb a precarious internal peace or simply for personal reasons: those intimately involved with a former criminal regime cannot have any great interest in seeing their participation disclosed, dissected and possibly even prosecuted. It is at this point that Goti's presentation stops short of facing up to realities in all their complexity. Different situations must be distinguished. On the one hand, the political landscape may change dramatically almost over night. Democratic forces, committed to the rule of law, may regain the upper hand in the country concerned and may then be able freely to decide how to deal with the key figures of the former regime. Thus, in particular, the communist regimes in eastern Europe were toppled by a ground swell of political opposition that could not be contained any more after the political power center of communism in Moscow's Kremlin had ceased to uphold it imperialist claims. In the German Democratic Republic, too, the governmental apparatus could not resist the popular movement of dissatisfaction and unrest. A newly elected People's Chamber almost unanimously decided to join the Federal Re-

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public of Germany, the West German State. Given Germany's past, it was unthinkable to ignore the injustices perpetrated by the communist regime. On the other hand, in the united Germany the entire political system, including the judicial branch, was well aware of the dangers inherent in instituting criminal proceedings against those responsible for shaping the policies of the former communist State and thereby bearing responsibility for the crimes to be dealt with. The opponents of the leap into a new world could easily have argued that the trials were nothing else than show trials, genuine victors' justice. For that reason, extreme caution prevailed. It had been agreed upon in the Treaty on German Unification1 that essentially prosecution should take place on the basis of the penal code of the GDR (Tatortrecht), to the extent that the rules contained therein were not to be considered as contrary to generally recognized human rights standards. In one of the few proceedings where the accused were in fact convicted and sentenced, the trial of Streletz, Kessler and Krenz on account of the deaths caused by the use of firearms in order to prevent persons from fleeing the GDR, the judgment was eventually challenged before the European Court of Human Rights. By rejecting the complaints of the applicants, the Strasbourg Court confirmed the legitimacy of those trials.2 On the whole, in any event, the criminal courts of the united Germany showed extreme restraint in prosecuting persons for the wrongs they had committed in the communist past. Interestingly enough, there was not even a true choice available if it had been considered that a fair hearing could not be ensured by judges who had spent their political lives in a State totally opposed to the political philosophy of the GDR. Universal jurisdiction could not be resorted to. The offenses committed in the GDR did not reach the degree of gravity generally required by international instruments providing for that class of jurisdiction. Thus, there was no role that third States could play. On the other hand, no truly international mechanism existed through which the former political leaders of the GDR could have been indicted. By necessity, therefore, it was incumbent on the united Germany to assume responsibility for the purposes of criminal prosecution. The question was moot whether it would have been better to rely on trials from without. Unfortunately, however, such ideal situations where no external factors impede or obstruct the normal course of justice are not frequently encountered in reality. More often than not, political change does not come about abruptly, but rather incrementally, step by step. In a number of countries in Latin America, such as El Salvador and Guatemala, the civil war came to a halt because both parties felt exhausted. Neither one believed any more in the virtues of armed struggle either to restore order or to bring about revolution. This meant in both cases that the military could carry on unaffected in personal continuity, without having suffered a true defeat. In other words, the military remained a powerful and politically influential actor, constantly to be taken into account in reshaping the political landscape under the auspices of the new democratic constitutions. If this is the case, if indeed the ultimate source of political power still lies with the armed forces, it cannot be expected that the judiciary will be able to dispense justice fairly and evenhandedly. Guatemala is a typical case in point. In December 1996, in close connection with the conclusion of the final peace agreement between the government and the guerilla force URNG, a "Law on National Reconciliation" was adopted Of 31 August 1990, Bundesgesetzblatt 1990 II, 885. Judgment of 22 March 2001.

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which on the one hand granted immunity from criminal prosecution for offenses connected with the armed confrontation, but which, on the other hand, explicitly exempted from this clause crimes punishable under international law like, in particular, genocide. Formally, the legal position was in full keeping with the exigencies of international law. In practice, however, that Law has not been able to induce the public prosecutor to institute proceedings in such cases, many of which were identified in the report of the Commission on Historical Clarification (CEH). Apart from an extremely limited number of cases which courageous individuals were able to bring before the tribunals thanks to untiring, continual efforts, the prosecutor's office and the judiciary have carried out an exemplary exercise in passivity. This is without any doubt due to the pressures which the military and security machinery of the State is still able to exert. Living proof of that domination enjoyed by the forces of the past is the fact that under the present Government general Rfos Montt, the de facto President under whose regime in 1982 and 1983 the worst atrocities, including genocide, were committed, could accede to the post of President of the Congress, the legislative body of the country. Again, no real alternative is available. The International Criminal Court under the Rome Statute will not enjoy jurisdiction to deal with offenses committed decades before the entry into force of the Statute on 1 July 2002. On the other hand, criminal prosecution in third countries remains even less than speculation as long as the suspects do not leave the Guatemalan territory. In other words, trials from within are the only possibility, but they simply do not take place as long as the former power structures continue to exist albeit informally. Reference could also be made to (the former) Yugoslavia. Concerning all of the crimes perpetrated during the interminable wars during the nineties of the last century, a genuine alternative exists. Indicted suspects can be tried either at home, in their familiar surroundings, or before the International Criminal Tribunal for the Former Yugoslavia in The Hague. Here again, the findings do not leave open many doubts. In all of the successor States of Yugoslavia, the former power wielders still exert an influence which effectively prevents trials from being instituted against Radovan Karadzic and Ratko Mladic, the two commanders responsible for the genocide perpetrated against the male inhabitants of the town of Srebrenica. Not less than 7,000 persons were murdered by the Serbian forces. And yet, these two, against whom international arrest warrants have been issued, live in relative security somewhere in the territory inhabited by a Serbian population. To be sure, the former head of the Yugoslav State, Slobodan Milosevic, was surrendered to the Tribunal in The Hague, where he has to stand trial. But it is obvious that his trial could not possibly take place in Serbia under the authority of Serbian judges. Even with the best of intentions, judges could not withstand pressures from the street. In such circumstances, prosecution is either entrusted to international tribunals, or it simply does not take place. There is no real alternative between trials from within and trials from without. It may well be that the Serbs do not regard the Tribunal in The Hague as a perfectly legitimate institution, but yielding to such criticisms would mean that all the crimes committed go unpunished. Precisely in view of such utterly negative consequences, one may also doubt whether all the flaws so accurately described by Goti attach to trials from without. Cannot such trials contribute to reviving the awareness of legal and moral principles in the country concerned, in particularly if it is realized that the international judges perform their duties conscientiously, without nurturing any preconceived ideas? Such trials can also be viewed as help and assistance from the international community. It is true that in Germany the Nuremberg trials were not popular. But it seems fair to say that a few years later the Germans in their large majority were grate-

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ful at least to the Western powers for the role they had played in Nuremberg. For a court made up of Germans, it would have been extremely difficult to arrive at a fair judgment concerning a former Nazi leader such as Goring, or the commander of the German Wehrmacht, Keitel. Nuremberg was a necessary step that brought Germany back into the community of civilized nations, and this was very soon discovered by the German people. It is certainly awkward to have courts of third States sit over crimes committed elsewhere outside their territories. Whenever the judiciary of a remote country far away from the place of the commission of the crimes concerned assumes the function of judicial retribution, the question concerning the motives of such activism arises. It is easy to allege that unfair aims are pursued by the State of the relevant judicial body. Indeed, criminal prosecution may appear as a claim for neo-colonial domination. In a thirdworld country, nobody would dare to institute legal proceedings against US President Bush, for instance. It is clear that an international tribunal provides much better procedural guarantees, in particular on account of its multinational composition. The international community does not ignore that an element of contextual familiarity may considerably strengthen the legitimacy of criminal prosecution through international mechanisms. Two different techniques have been resorted to for that purpose. Both of them have their advantages and their shortcomings. On the one hand, the International Criminal Court under the Rome Statute is placed under strict constraints. It has been given only a subsidiary role (principle of complementarity). Primacy of jurisdiction is enjoyed by national tribunals. The Court itself can seize itself validly of a case only if it has determined that the tribunals of the State concerned are unable or unwilling to carry out the requisite investigation or prosecution. Underlying this rule is the assumption that indeed justice is best done at home. One may also point to the efforts to establish hybrid tribunals in Cambodia and Sierra Leone3 for the prosecution of the crimes committed during the civil wars which ravaged those countries. Essentially, these tribunals would be national bodies, but some of the judges would be provided by international agencies, in particular the United Nations. In that fashion, the advantages of the domestic and the international concept can be combined. The national judges are able to ensure the necessary closeness to the facts under review, and the international judges stand for objectivity and fairness of the proceedings. Unfortunately, concerning Cambodia the plans have failed, due to the many obstacles raised by the Government. After many years of haggling, the UN SecretaryGeneral was compelled to renounce the project. Dissent between the different groups of the population still seems to reach so deep that any attempt at widespread criminal prosecution could lead to new violence. In conclusion, it may be said that weighing the alternative between trials from within and trials from without is certainly useful as a philosophical and sociological reflection on the pros and cons of two models that may be viewed as an "Idealtypus" in the sense suggested by Max Weber. In actual practice, on the other hand, this alternative rarely exists. Nonetheless, in establishing new procedures for dealing with a criminal past account has been taken of the advisability of not completely removing prosecution of grave human rights violations from their societal context.

Concerning Sierra Leone see Security Council resolution 1315 (2000), 14 August 2000.

Entitlement to Land and the Right of Return: An Embarrassing Challenge for Liberal Zionism1

Andrei Marmor

Contents 1.

Occupation and Entitlement to Land

2.

The Right of Return

3.

The Individualistic Arguments

3.1 Adverse Possession 3.2 Superseding Property Rights 3.3 Changing Circumstances 4.

The Demographic Argument

Conclusion

320 324 325 326 326 328 330 332

When it comes to controversies and conflicts over nations' holdings of territories and their entitlement to their territorial possessions, it is very difficult to rebut the general perception that "might is right". Sometimes it seems that in the internat.onal domain we are not too far from the Hobbesian state of nature. On the other hand, nations and ethnic groups almost invariably make moral arguments to support their claims to territory, or to national self determination. Perhaps there isn't much sincerity in those claims. Or perhaps it is only made by the weak and vulnerable. Nevertheless, I believe that we should assume that even in the international domain, it just cannot be the case that might is right The actions of nations, like the actions of individuals, should be subject to moral scrutiny, and nations' entitlement to the lands they control should be justified by justice and morality, not only by their actual possession. This is my main assumption m this essay, which purports to evaluate the moral legitimacy of Israel's holding of its territories and the Palestinians' right of return. The Liberal version of Zionism, ostensibly, shares this assumption. Liberal Zionists believe that Israel has a moral right to exist as a Jewish state, implementing the Jews right to national self-determination and acting as an agent of, or at least as a refuge state for the world Jewry. At the same time, however, Liberal Zionism also insists on the Liberal Democratic character of the Jewish state, aspiring for Israel's implementation of general principles of humanism and justice.2 The purpose of this essay, however, is to 1 am grateful to David Enoch, Chaim Gans, Elizabeth Garrett, Alon Harel, and Joseph Raz for very helpful comments on drafts of this essay. This dualism is now enshrined in Israeli constitutional law, endorsed by the Supreme Court, following the enactment of two Basic Laws which define Israel as a 'Jewish democratic' state.

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ful at least to the Western powers for the role they had played in Nuremberg. For a court made up of Germans, it would have been extremely difficult to arrive at a fair judgment concerning a former Nazi leader such as Goring, or the commander of the German Wehrmacht, Keitel. Nuremberg was a necessary step that brought Germany back into the community of civilized nations, and this was very soon discovered by the German people. It is certainly awkward to have courts of third States sit over crimes committed elsewhere outside their territories. Whenever the judiciary of a remote country far away from the place of the commission of the crimes concerned assumes the function of judicial retribution, the question concerning the motives of such activism arises. It is easy to allege that unfair aims are pursued by the State of the relevant judicial body. Indeed, criminal prosecution may appear as a claim for neo-colonial domination. In a thirdworld country, nobody would dare to institute legal proceedings against US President Bush, for instance. It is clear that an international tribunal provides much better procedural guarantees, in particular on account of its multinational composition. The international community does not ignore that an element of contextual familiarity may considerably strengthen the legitimacy of criminal prosecution through international mechanisms. Two different techniques have been resorted to for that purpose. Both of them have their advantages and their shortcomings. On the one hand, the International Criminal Court under the Rome Statute is placed under strict constraints. It has been given only a subsidiary role (principle of complementarity). Primacy of jurisdiction is enjoyed by national tribunals. The Court itself can seize itself validly of a case only if it has determined that the tribunals of the State concerned are unable or unwilling to carry out the requisite investigation or prosecution. Underlying this rule is the assumption that indeed justice is best done at home. One may also point to the efforts to establish hybrid tribunals in Cambodia and Sierra Leone3 for the prosecution of the crimes committed during the civil wars which ravaged those countries. Essentially, these tribunals would be national bodies, but some of the judges would be provided by international agencies, in particular the United Nations. In that fashion, the advantages of the domestic and the international concept can be combined. The national judges are able to ensure the necessary closeness to the facts under review, and the international judges stand for objectivity and fairness of the proceedings. Unfortunately, concerning Cambodia the plans have failed, due to the many obstacles raised by the Government. After many years of haggling, the UN SecretaryGeneral was compelled to renounce the project. Dissent between the different groups of the population still seems to reach so deep that any attempt at widespread criminal prosecution could lead to new violence. In conclusion, it may be said that weighing the alternative between trials from within and trials from without is certainly useful as a philosophical and sociological reflection on the pros and cons of two models that may be viewed as an "Idealtypus" in the sense suggested by Max Weber. In actual practice, on the other hand, this alternative rarely exists. Nonetheless, in establishing new procedures for dealing with a criminal past account has been taken of the advisability of not completely removing prosecution of grave human rights violations from their societal context.

3

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Christian Tomuschat

Concerning Sierra Leone see Security Council resolution 1315 (2000), 14 August 2000.

Entitlement to Land and the Right of Return: An Embarrassing Challenge for Liberal Zionism

Andrei Marmor

Contents 1.

Occupation and Entitlement to Land

2.

The Right of Return

3.

The Individualistic Arguments

3.1 Adverse Possession 3.2 Superseding Property Rights 3.3 Changing Circumstances 4.

The Demographic Argument

Conclusion

320 324 325 326 326 328 330 332

When it comes to controversies and conflicts over nations' holdings of territories and their entitlement to their territorial possessions, it is very difficult to rebut the general perception that "might is right". Sometimes it seems that in the international domain we are not too far from the Hobbesian state of nature. On the other hand, nations and ethnic groups almost invariably make moral arguments to support their claims to territory, or to national self determination. Perhaps there isn't much sincerity in those claims. Or perhaps it is only made by the weak and vulnerable. Nevertheless, I believe that we should assume that even in the international domain, it just cannot be the case that might is right The actions of nations, like the actions of individuals, should be subject to moral scrutiny, and nations' entitlement to the lands they control should be justified by justice and morality, not only by their actual possession. This is my main assumption in this essay, which purports to evaluate the moral legitimacy of Israel's holding of its territories and the Palestinians' right of return. The Liberal version of Zionism, ostensibly, shares this assumption. Liberal Zionists believe that Israel has a moral right to exist as a Jewish state, implementing the Jews right to national self-determination and acting as an agent of, or at least as a refuge state for the world Jewry. At the same time, however, Liberal Zionism also insists on the Liberal Democratic character of the Jewish state, aspiring for Israel's implementation of general principles of humanism and justice.2 The purpose of this essay, however, is to I am grateful to David Enoch, Chaim Gans, Elizabeth Garrett, Alon Harel, and Joseph Raz for very helpful comments on drafts of this essay. This dualism is now enshrined in Israeli constitutional law, endorsed by the Supreme Court, following the enactment of two Basic Laws which define Israel as a 'Jewish democratic state.

320 Andrei Marmor

serve as a reminder that Liberalism and Zionism constitute a difficult, if not impossible, match. There is not much novelty in this claim. Liberal Zionists are quite aware of this challenge, and in recent years many of them have struggled to come up with political theories attempting to reconcile the obvious conflicts between the Romantic ideology of Zionism and contemporary Liberal political morality.31 doubt it that such a reconciliation is possible, but I will not attempt to explain my doubts here at a general level. My concern in this paper is limited to one issue, namely, the legitimacy of territorial holdings, arguing that at least in this limited sphere, Liberal Zionism faces irresolvable conflicts. It is surprisingly easy to list a set of moral-political convictions held by Liberal Zionism with respect to entitlement to land in this disputed territory. The following is a representative set of views: 1. Israel's holding of the territory within the 1967 borders, namely, those territories acquired in the war of independence, is basically legitimate. 2. The Palestinians are entitled to a state of their own, roughly within the West Bank and the Gaza strip. As part of such a compromise, many of the Israeli settlements in these territories ought to be dismantled. 3. Finally and crucially, the Palestinians' demand for a right of return for the Palestinian refugees cannot be acknowledged. This essay argues that from a Liberal perspective, such a view is incoherent. I will begin with the distinction between Israel's alleged entitlement to the territories it occupied during the war of independence and those it occupied in 1967, and then I will discuss the Palestinians' right of return. I believe that these two issues are very closely related. 1.

Occupation and Entitlement to Land

Israelis are deeply divided over the legitimacy of the settlements in the West Bank and the Gaza strip. Roughly, about half of the Israelis believe that those settlements are basically illegitimate while the other half vehemently supports them. But the Israelis are astonishingly united in their belief that the territories Israel has occupied during the war of independence is Israel's to hold on to, and that it has a rightful entitlement to the entire territory of Israeli land within the borders which were established in 1948. Is this a coherent distinction? What is the morally relevant difference between the entitlement to Arab land that Israel has occupied and resettled in 1948, that is, dozens of Arab towns and hundreds of Arab villages , and those lands it has occupied, and resettled5, in 1967? 3

4

See, for example M. Mautner, A. Sagi, and R. Shamir (eds.), Multkulturalism in a Democratic and Jewish State, particularly the essays by Ruth Gavison and Chaim Gans. Liberal Zionists reject the original, Romantic, foundations of Zionism, arguing that the relevant tenets of Zionism can be defended on liberal foundations. Many complicated issues, that I cannot address in this essay, are involved here. In a rare moment of frankness, Moshe Dayan, the legendary defense minister at the time, made this statement in 1969: 'We came to this country which was populated with Arabs, and we are establishing a Hebrew, that is a Jewish state here. In considerable areas of the country we bought the lands from the Arabs. Jewish villages were built in the place of Arab villages and I do not even know the names of those villages and I do not blame you, because these geography books no longer exist; not only do the books not exist, the Arab villages are not there either. Nahallal arose in place of Mahalul, Gevat in place of Jibta, Sarid in place of Haneifs, and Kefar Yehoshua in place of Tel Shaman. There is not one place built in this country that did not have a former Arab population.' Haaretz Newspaper, 4 April, 1969. It is far from clear that all these facts in Dayan's statement are

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321

One standard answer to this question is based on the distinction between the nature of the two wars which have gained Israel these territories. In 1948, we are told, it was a legitimate war of independence where Israel exercised its right to national self determination. On the other hand, in 1967 the occupation of the West Bank and the Gaza strip was only a strategic move, at best forced on Israel by the necessities of war, or worse, illegitimate to begin with. But it is difficult to see how this answers our question. Even if we assume that the war of independence was, indeed, a legitimate necessity of implementing Israel's right to national self determination, the legitimacy of the war cannot, by itself, entail any particular conclusions about the scope of the territory Israel is entitled to hold. By maintaining that the war of 1948 was a legitimate war of independence, we are only forced to the conclusion that Israel's holding of some territory, enough to establish a viable state, is legitimate. Nothing follows about the legitimate borders of such a state, or the entitlement to Arab land occupied, and resettled, during the war. Consider the following analogy: suppose that I lawfully purchase a piece of land from its rightful owner, but before I actually take full possession of it, neighboring squatters invade and threaten my lawful possession. Presumably, I am justified in using force to obtain my rightful possession of this land. But now suppose that as a result of this conflict, I also manage to overtake substantial parts of neighboring land which had previously belonged, lawfully, to the squatters. Have I acquired legitimate possession of the squatters' land? I cannot see any moral argument to support such a conclusion. The fact that I had to use force to take possession of my lawfully purchased land can justify, at most, a claim for compensation from the squatters for the expenses I had to endure; it cannot, by itself, justify the acquisition of new land to which I had no legitimate claim to begin with. There might be a possible rejoinder to this argument that would run as follows: If there is a territorial conflict between two nations and one of them resorts to force in order to impose its solution, it thereby accepts a new procedure for the resolution of the conflict, namely, the war itself. From a moral perspective, such an argument can either rely on some notion of implicit consent or, perhaps more plausibly, on an analogy to the legal concept of estopel. The claim would be that once a nation embarks an a bellicose course of action, it should be regarded as if it had consented to the results of the war, whatever they turn out to be or, at the very least, that it is in no moral position to claim otherwise. But of course, this cannot be quite right. If I loose my temper with your obnoxious behavior and strike you with a blow, maybe you have a right to strike back at me, and perhaps even harder than I did, but you are certainly not entitled to torture me and injure me in a hugely disproportionate manner. A resort to force, whether justified or not, cannot be regarded as an open ended invitation to abide by the bellicose procedure and accept its consequences, whatever they turn out to be. Suppose, for example, that my neighbor objects to the fence I have erected in my back yard and he knocks it down. Can I respond by destroying his entire house? It may be replied, however, that there is a crucial element in the story of 1948 that I have missed here. After all, so the Zionist story goes, the 1948 war was a war of self defense. On the 29lh of November 1947 the UN adopted the famous Palestine partition resolution, which Israel has accepted, but the Arabs have not. Instead, they waged a war 5

true, but the sheer tone of it is telling. The number of Israeli settlements and settlers in the West Bank and the Gaza strip is itself a highly contentious issue, mainly because it much depends on how one counts. The numbers, however, are in the hundreds of thousands.

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on the Yeshuv (as the pre-statehood Jewish settlement in Palestine is called) in order to prevent the establishment of Israel, and everything the Yeshuv had done to resist that aggression was an act of self defense. But for the Arab rejection of the partition resolution and the deliberate aggression that followed, the Yeshuv would not have had to fight and concur those parts of Palestine that it did. Therefore, the argument concludes, the territories Israel has occupied during this war of self defense, are rightly Israel's to keep. Even if we raise no doubts about the truth of this standard Zionist narrative, however, the conclusion simply does not follow. Generally speaking, a right to self defense is a right to ward off aggression, and not a right to punish the aggressor.6 If I lawfully purchase a piece of land, and neighboring squatters try to take possession of it by force, the right to self defense justifies using force on my part to ward off their aggression, retaking possession of my land; the right to self defense clearly does not justify an extension of my possession to the lands of the squatters even if such a possession occurred during the conflict and as an integral part of it. Once again, I may have a right to compensation from the squatters, but not more than that; self defense does not justify punishing the squatters for their initial aggression by taking possession of part of their own lands. It might be argued, however, that in the international context the right to self defense ought to be somewhat more extensive than its counterpart in the context of individual conflicts within a domestic setting. After all, in the international domain there is no third party, like the state in the context of conflicts between individuals, that can ensure proper punishment for wrongful conduct.7 Therefore, so this argument would run, the right to self defense between nations cannot be so sharply distinguished from a right to punish, or at least, to inflict some costs on the initial aggressor. Maybe so; perhaps it is true that nations have a right to inflict certain costs on other nations which unjustly attack them, over and beyond their right to ward off the aggression. But even this extended version of the right to self defense cannot grant Israel a moral entitlement to the Arab towns and villages it occupied and resettled in Palestine during the war. The most we can say, on the basis of the extended version of the right to self defense, is that Israel may have had a right to some territorial expansion as a result of the war; such a right cannot be extended to legitimize the overtaking of vast amounts of private property, lands, houses, and estates, owned by the indigenous Arab population in Palestine. To put it simply, though somewhat bluntly, there is a considerable moral difference between territorial expansion, which a state may sometimes have a right to carry out in a war of self defense, and ethnic cleansing. Israel's current possession of a vast proportion of Israeli land is a direct result of ethnic cleansing; tens of thousands of Arabs living in towns and villages in Palestine were forcefully expelled from their homes during and in the wake of the war, their lands confiscated by the state, and resettled with Jews.8 This is not the kind of cost which may justly be inflicted on an aggressor nation as part of another nation's right to self defense. It is just a clear and blunt violation of basic human rights.

6 7 8

See, for example, J.J. Thomson, "Self Defense", 283-310. Although there are noble efforts to change this and introduce some forms of international punishment, these relatively recent changes are still in a very rudimentary and precarious stage. The total number of Palestinian refugees during the war is estimated at 700,000; how many of those were actually expelled by Israeli forces, as opposed to those who just fled from the misfortunes of war, is the topic of heated debates amongst historians. For comparison's sake, however, it is worth keeping in mind that the total Arab population in Palestine was around 1.3 millions, and the Jewish population in Palestine at the time was around 600,000.

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Thus, the widespread assumption among the Liberal Zionists that Israel's possession of the land within the borders of Israel proper is legitimate, whereas the settlements in the West Bank and Gaza are illegitimate and ought to be dismantled, seems to be quite groundless from a moral point of view. Both are tainted with illegitimacy and both result from violations of basic human rights and principles of justice. Furthermore, in a moral comparison between these two episodes of conquest, the occupation of Arab land in 1948 would fare much worse. As morally wrong and politically stupid as the settlements are, at least they were not established in a process of ethnic cleansing. To the best of my knowledge, relatively few Palestinian residents were evicted from their homes in the course of resettlement , no atrocities accompanied the confiscation of Palestinian (mostly agricultural) land on which those settlements have been erected, and there were no population transfers involved. Unfortunately, none of this can be said of the 1948 conquest. It may be argued, however, that the differences in the era and the historical context are morally significant: in the first half of the 20th century the world witnessed ethnic cleansing and population transfers on much larger scale all over the world, and the prevalent norms of international conduct were much more conducive to this kind of behavior. That may be so. But the moral significance of this historical context is very limited. At best, it would pertain to the judgment of the moral responsibility of the agents involved: we could say that those agents who performed acts of ethnic cleansing in an era in which it was more acceptable than it is today, deserve less moral blame for it. Perhaps they can be partly excused for their wrongful conduct as they may have had less of an opportunity to realize its iniquity. But for our purposes, this is beside the point. A moral wrong does not become less wrong just because the agents who are responsible for it can be excused. Perhaps those who are responsible for the ethnic cleansing during, and in the wake of, the war of independence are less blameworthy than those agents who conducted the settlements in the West Bank and Gaza strip. But none of this has any bearing on the question of what kind of wrong is actually involved in these two episodes of conquest and resettlement. Nevertheless, there is a pragmatic, forward looking argument that can be made here. It is not an argument that pertains to the legitimacy of historic entitlements; it is an argument about the desirable distribution of land given the present situation. The assumption would be that both nations, the Jews and the Palestinians, have a right to national self determination, and that both nations have justified claims, based on history and culture, to exercise this right in the land of Palestine. Therefore, this argument continues, it is incumbent upon the Jews and the Palestinians to divide the land between them. Now the question arises, what would be a fair and just division of the disputed territory? According to the argument under consideration, this is basically a question of distributive justice and pragmatic considerations. Israel has already achieved statehood within viable borders; therefore, it is Israel's duty to share the land with the Palestinians, and allow them to establish a viable independent state within borders that they can identify This is not to say that Palestinians were not expelled during, and in the wake of, the 1967 war. In fact, at least 200,000 of them, many of whom were already refugees from 1948 in the West Bank, moved away, mostly to Jordan. Some of these refugees moved east across the border on their own initiative, mainly around the Jericho area, but tens of thousands were "strongly encouraged" by the Israeli army to move. In addition, most of the Syrian villages on the Golan heights were evicted, partly, at least, by the IDF during the war. The point in text is, however, that such population transfers, voluntary or not, were not involved in the process of establishing the settlements. The settlement movement of the West Bank and Gaza strip began only about a decade after the 67 war. For a general survey of these events, see, B. Morris, Righteous Victims.

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with, and on land that they can regard as their own. According to this view, then, the settlements in the occupied territories are wrong and should be dismantled because they hinder such a compromise and seriously impede the possibility of establishing a viable Palestinian state. The settlements undermine Israel's ability to implement a political solution which would be both viable and fair. From a pragmatic political perspective there is a lot to be said in favor of such a stance and the policy it entails. Nevertheless, it should be clear that such a forward looking argument that appeals to principles of just distribution leaves much more up for grabs than the Liberal Zionists would want to admit. By itself, such an argument cannot explain why would the Palestinians have a better claim to the outskirts of Ramalla or Nablus in the West Bank, than the town of Ramla in the heart of Israel or Talbia in West Jerusalem (both former Arab settlements occupied in 1948 and resettled by Jews). Once the argument is based on considerations of distributive justice, the line between "theirs" and "ours" can no longer be drawn by the 1967 line; the line should be drawn, or rather, entirely redrawn according to whatever is required by justice in the distribution of resources. In principle, everything should be up for grabs. Well, this is not quite so simple. There is an argument to be made about changing circumstances: more than 50 years of development and mass emigration to Israel, have created new circumstances which may make a difference as to the question of entitlement to land. This is a complicated issue, and I will discuss it in some detail with respect to the right of return. For our present purposes, however, it could be argued that the justification for focusing on the 1967 border, more or less, is basically pragmatic. The 1967 line has become some kind of a major focal point that the parties to the dispute, and the international community, are willing to consider as an historic compromise.10 And then there may well be other pragmatic considerations to a similar effect. For the time being, however, let me summarize the conclusion so far: I have argued that from the perspective of justice in territorial acquisition, there is no moral difference between the Israel's acquisition of Arab land in 1948 and the Israeli settlements in the occupied territories. Both are tainted with the same kind of illegitimate acquisition and both constitute a violation of principles of justice. The only difference that Liberal Zionists can point at concerns forward looking arguments, based on principles of distributive justice, pragmatic considerations and, of course, on the moral imperative to end the conflict. A valid argument can be made that the settlements hinder the possibility of a fair compromise with the Palestinians. But it should be kept in mind that this forward looking argument, sound as it is, cannot establish a principled distinction between the legitimacy of entitlement to land in the occupied territories, and the confiscated Arab land within Israel proper. 2.

The Right of Return

Probably the widest consensus in the Israeli society these days is the outright rejection 10

It is arguable that the 1967 line gained international legal recognition by the famous UN Security Council Resolution 242 which demanded, among other things, a compromise based on the formula of 'territories in return of peace'. Although the resolution does not mention the 1967 border, it is widely acknowledged that withdrawing to the 1967 line is the most that Israel is required to accomplish by this resolution. Israelis argue that the deliberate omission of "the" from the "territories" in this formula indicates that Israel is entitled to territorial holdings beyond the 1967 line. Be this legal formalism as it may, I think that it would be fair to say that Israeli entitlement to its land within the 1967 border has gained considerable international recognition.

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of the right of return of the Palestinian refugees to Israel. Most Israelis think that the Palestinian refugee problem is simply not one for Israel to solve in any way whatsoever. Some, perhaps a tiny minority, are willing to recognize Israel's partial responsibility for the problem, and they would be willing to accept a compromise which involves some monetary compensation for the refugees. But the idea that Palestinian refugees should be allowed to return to their homes in Israel strikes almost all Israelis as a nightmarish idea, to be rejected at all costs. Let me strike a few dissonant accords in this Israeli chorus, suggesting that at least some categories of refugees should have the right to return. Despite the enormous political implications of the refugee problem, the exact numbers of refugees, in their various categories, are not readily available. Estimates vary considerably." Nevertheless, we do know some basic facts. To begin with, it is now undeniable that some of the refugees have escaped from Palestine during the war, while many others have been forcefully and deliberately expelled by the Israeli fighting forces.12 Most of the property of both categories of refugees has been confiscated by the Israeli authorities, and resettled with Jews. Many of the villages were demolished, and typically, rebuilt by Israel as part of Israeli cities and agricultural settlements. Some of them are in the middle of Israeli cities and others are in more remote places. We also know that a substantial part of the Palestinian refugees and their offspring still reside in refugee camps in the West Bank, Gaza, Lebanon, Syria, and Jordan. Others have managed to resettle, either in the middle east or in other areas of the world. These differences in status may well have some moral significance. Thus, for the sake of the present argument, I will focus on one main category of refugees: those who have been actually expelled by the Israeli army during the 1948 war, whose property had been confiscated by Israel, and who still live in refugee camps.13 Should they, at least, have a right to return to their homes and have their property recovered? As I have indicated above, the vast majority of Israelis are united in their negative answer to this question. A closer look at the reasons which are given for this outright rejection of the right to return would reveal two main categories of arguments. The first type of argument which strives to refute the right of return regards the issue as one of an individual's right to possess property, and how such a right may be lost or superseded due to changing circumstances. The other argument is a nationalistic-demographic one: it claims that even if, as individuals, the Palestinians may have a right to return, Israel cannot recognize such a right since it will result in mass emigration of Palestinians to Israel, and to such an extent that it will undermine the Jewish identity of the state. Let me consider these two categories of arguments in turn. 3.

The Individualistic Arguments

The individualistic argument raises serious issues, some which are discussed in the lit11

12 13

From various Internet sources the following figures emerge: the total number of Palestinian refugees is probably close to 4 million people, about a quarter of which still live in refugee camps. UKRWA recognizes and runs 59 camps, about half of which are in Jordan, Syria, and Lebanon, and the rest in the West Bank and Gaza. The total number of Palestinians residing in refugee camps is estimated between 900,000 up to 1,5 million people. See B. Morris, The Birth of the Palestinian Refugee Problem, and more recently, his "Revisiting the Palestinian exodus of 1919-48". 1 must admit that there is no principled reason for restricting the argument to those who still reside in refugee camps. My assumption is, however, that needs of these refugees is much more urgent and compelling than the needs of those Palestinians who have managed to resettle.

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erature in similar contexts.14 Basically, the question is this: can we say that during the five decades which have passed since their expulsion and the considerable changes in the circumstances in Israel, the Palestinian refugees have lost their right to return? Note that the assumption would be that they had had such a right shortly after their eviction, and it is the passage of time and the changes of circumstances which warrant the conclusion that the right of return has been superseded. Before I begin to consider such a claim, let me admit that there is an important complication of this issue that I will mostly ignore here, and this is the intergenerational problem: Presumably, many of those who have been expelled are no longer alive, and most of the refugees are their children and grand children who were born in refugee camps and other places. It is not evident that the rights of the original refugees automatically transfer, as it were, to subsequent generations. Nevertheless, given the relatively short time span, only 54 years, I will not deal with this intergenerational issue, and just assume that the rights of the original refugees transfer, at least, to their immediate offspring.15 5.1

Adverse Possession

I think that there are three main considerations which have been suggested to justify the claim that the Palestinian refugees have lost their right to return. The first, and weakest, argument against the right of return relies on the idea of adverse possession, or more precisely, on the moral analogy of the legal concept of adverse possession. Most legal systems acknowledge a startling exception to the general principle that people should not be allowed to profit from their own wrongs, in the case of an unauthorized use of land which takes place continuously for a long time. Under certain conditions, the details of which vary in different legal systems, the unauthorized user gains property rights in her use against the original owner, even without the latter's consent. The justification of the doctrine of adverse possession is far from self evident, since it involves serious problems of moral hazard and encourages wrongful behavior. Nevertheless, the details need not concern us here, since the doctrine of adverse possession contains a crucial caveat that clearly obtains in the current political context: one doesn't gain property rights by adverse possession if the original owner continuously expresses her objection to the unauthorized use and strives to protect her rights. In other words, one cannot gain rights by adverse possession against the continuously expressed protest of the original owner.16 The. reason for this is quite simple: if the original owner expresses her protest and strives to defend her property rights, the disputed possession becomes a straightforward legal contest; surely, neither the law nor morality could possibly regard actual possession as a way of resolving such conflicts. Now, this crucial and justified caveat should make it absolutely clear that Israel cannot claim to have gained any rights against the Palestinian refugees by adverse possession; the Palestinians have made their protest loud and clear, often all too violently, for the entire period of their exile. 14

15 16

See, for example, J. Waldron, "Superseding Historic Justice", 4-28. See also his contribution to this volume: "Redressing Historic Injustice", particularly sects. 4-6. The context is usually the question of Aboriginal claims to repossess lands they have lost during various forms of Western colonization. In contrast to the Palestinian issue, however, in the former cases the problems raised by the intergenerational gap, which goes back hundreds of years, is a very complicated issue which forms one of the pivotal points of the debate. For an interesting debate of the intergenerational issues involved in such cases, See, for example, J. Simmons, "Historical Rights and Fair Shares", 149. Similar considerations apply to the statutes of limitation and for the same reasons.

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Superseding Property Rights

The second argument deserves much closer attention. In a very similar context, Jeremy Waldron17 has argued that entitlements to land and property of an original owner may fade as time goes by and circumstances change. His main argument is worth quoting in full: 'If something was taken from me decades ago, the claim that it now forms the center of my life and that it is still indispensable to the exercise of my autonomy is much less credible. For I must have developed some structure of subsistence. And that will be where my efforts have gone ... I may of course yearn for the lost resource ... [and] even organize my life around the campaign for its restoration. But that is not the same thing as the basis of my original claim.' 8 Now the argument is based, as Waldron makes quite clear, on a certain conception of the right to private property, and particularly, on the moral grounds for a right of original acquisition. Having rejected Locke's famous 'mixing of labor' conception, Waldron suggests an autonomy based argument, claiming that the right of original acquisition is based on the role of property possession in the life of the individual, who 'alters it, and uses it, makes it in effect a part of her life, a pivotal point in her thinking, planning, and action'.19 Before we proceed, however, let me stress two points. First, (and this is not an argument against Waldron) it should not be assumed that the right of return is simply a property right. The right to repossess wrongfully lost property is surely an important part of the right of return, but the right of return is more extensive than that. Basically, it is the right of people who have been expelled, or otherwise forced to flee their homes, to return to their homes, regain possession of their lost property and, in relevant circumstances, regain their citizenship and residence rights. Secondly, I have some doubts about the connection, suggested here by Waldron, between a theory of original acquisition of property, ala Locke (or Nozick), and the moral grounds for the endurance of property rights. The endurance of property rights, and the conditions under which such rights fade or supersede, depend on the moral grounds for acknowledging property rights, and their desirable scope, in the world as we know it, where the question of original acquisition is quite irrelevant. The scope of property rights has very little to do with the original Lockian question of how people can acquire property rights in a State of Nature. In other words, whether I am entitled to regain my stolen watch from the thief after a few decades, hardly depends on the question of my initial acquisition of that watch, as long as it is not disputed that I had a rightful possession of it at the time of its theft. However, for our immediate purposes, we need not decide about this controversy. The reason for this is that the autonomy based argument Waldron relies on is not confined to a theory of original acquisition. As I understand it, the argument quoted above is, that entitlement to property over time depends on the actual role that the property plays in the life of its owner. The more central 17 18 19 20

J. Waldron, "Superseding Historic Justice", 4-28. To be sure, Waldron does not mention the Palestinian example. See also Waldron's contribution to this volume, "Redressing Historic Injustice". J. Waldron, "Superseding Historic Justice", 18f. Ibid., 18. In other words, Locke's theory of original acquisition pertains to the question of whether the right to private property can be regarded as a natural right. Even Locke, however, was quite explicit in admitting that current holdings of property do not coincide with such a natural right and must be justified, he thought, on some consensual basis. See J. Locke, The Second Treatise on Government, ch. 5.

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it is to the owner's autonomy, the more of a claim to possession the person has, and vice versa; once the property loses its actual functions in the life of its owner, even if such a lose is incurred by the violation of her right, the less of a right to repossession the person can rightfully claim. I do not wish to deny that the argument is basically plausible, but there is a crucial question about its limits. The problem is actually easy to illustrate by the Palestinian case. Decades have passed since they have lost their property in Israel, and we may assume, with Waldron, that the lost property can no longer play an actual, physical or economic, role in the lives of the refugees; since they haven't possessed the property for several decades, it cannot play any practical role in their current subsistence and economic activities. Needless to say, they yearn for the homes and property they have been forced to leave behind, and a campaign for its restoration plays a central role in their individual and collective consciousness. But, Waldron claims, the yearning is not enough to ground the endurance of the entitlement. Only the actual role which the property plays in their lives constitutes the relevant considerations. Yet this is somewhat difficult to understand, particularly when Waldron himself admits that if the holding of the lost property is important for the sense of identity of the dispossessed, his conclusion would be different: 'It may not apply so clearly to cases where the dispossessed subject is a tribe or a community, rather than an individual, and where the holding of which it has been dispossessed is particularly important for its sense of identity as a community'.21 True, Waldron confines this comment to communities, as opposed to individuals, but it is difficult to see the reason for this restriction. If the argument for the endurance of private property is based on the importance of property to personal autonomy, and similar individualistic considerations, why should it matter that the 'dispossessed subject is a tribe or community'? What seems to matter is that the property plays an important role in the constitution of one's self and sense of identity, and the question of whether the identity is communal or individual can hardly make any difference. So I think that Waldron is right to maintain that merely yearning for a lost property, by itself, doesn't necessarily warrant the endurance of entitlement to possess it. The conclusion is quite different, however, if the yearning is not just a sentimental matter, but something which is closely related to the person's individual or communal sense of identity. Now consider the Palestinian refugees, living in miserable refugee camps, being reduced to this degrading status by the very loss of their homes in Palestine. Could we think of any clearer case where the yearning for the lost property is important for the sense of identity of the dispossessed? Furthermore, when we think of the endurance of property rights, the question of alternatives and opportunities must also arise. In this respect, Waldron's favorite example of the stolen car is quite misleading. Sure, if my car has been stolen decades ago, I would have had ample opportunities to replace it since, or perhaps to readjust my life to one without a car. The car has long lost its practical role in my life, and therefore, Waldron concludes, I can no longer insist on its return if the car is found decades later. But the conclusion should be quite different if the stolen property is much more vital to my subsistence, and if I have had very limited opportunities to replace it or to find adequate substitute. If I am expelled from my home and reduced to a status of refugee, with very limited opportunities to escape such a predicament, the case for the endurance of my entitlement becomes much stronger.

Changing Circumstances Finally, we should consider the case against the right of return due to changing circumstances. The property lost by the Palestinian refugees has been dramatically transformed by Israeli development in the last five decades. Places where a small Arab village stood in 1948, are now in the midst of high-rises in modern cities. On agricultural land which was barely cultivated in 1948 now stand modern factories, universities, or new towns and neighborhoods. Surely, the argument runs, this transformation must make a difference. But what kind of difference does it really make? Let me suggest three possible interpretations. The argument from development can have an economic aspect. The property claimed by the Palestinian refugees is simply much more valuable than it had been five decades ago, and its added value is mostly due to Jewish development. By itself, however, the added value of the property entails nothing about the entitlement to possess it. Under normal circumstances, if a piece of land was worth, say, $50 in 1948, and it is now worth $100, the original owner may still regain it granted that she compensates the successive developers for the added value. But what if the current value is not $100 but $5,000? Indeed, it is arguable that if the added value substantially surpasses the original value, then it is the original owner which should be compensated, leaving the possession of the property in the hands of the subsequent developer. I think that this is quite right, and it entails that many Palestinians simply cannot exercise their right of return to the actual property from which they had been expelled.23 In such cases, the appropriate remedy would have to be adjusted to the change in the circumstances. Another interpretation of the argument from development would stress a moral point. There is a general principle in law that the courts would not grant specific performance if it is particularly harsh on the defendant. The moral intuition behind this principle is similar to the economic consideration mentioned above. Suppose, for example, that I have owned a small piece of land in the wilderness, which had been stolen from me, so to speak, decades ago. That piece of land now forms a small part of the land on which a house has been built. Now suppose that I go to a court of law and ask to repossess my land, even if it means that the present residents would either have to share their home with me, or demolish it and move somewhere else. Presumably, any reasonable court would refuse to grant me such a request, and will rule for some kind of compensation instead. This is quite understandable, and it simply derives from the moral intuition that there ought to be a limit to the hardship one can impose on a party who needs to rectify a wrong, even if that party is himself to blame for the wrong that ensued. Once again, the practical conclusion must be that the right of return cannot always be implemented in a straightforward way, simply by restituting to the Palestinian refugees the property they had owned in 1948. Note, however, that the conclusion of both of these versions of the argument from development is more limited than might meet the eye, and in two respects. First, even in the face of the huge development of land in Israel in the last few decades, there are still many places where Palestinians could regain their property without undue hardship to the current owners. Not every Palestinian house has been replaced by a high-rise. Second, and more importantly, the conclusion of this argument still leaves it open whether the appropriate compensation for the loss of property that cannot be returned is a 23

21 22

J. Waldron, "Superseding Historic Justice", 19. Ibid., 15.

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The situation here is actually more complicated: some of the land development in Israel was deliberately designed to prevent Palestinian return, thus making Israel's reliance on the argument from development much more difficult to accept.

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monetary one or, perhaps, relocation at some other place within Israel. Clearly, the relocation option would be much fairer to many Palestinian refugees. It would redeem them from the status of refugees, and it would at least enable them to live in proximity to their previous homes, relatives, and cultural community, and in their own homeland. Once again, it should be kept in mind that the right of return is more extensive than a standard right to private property. People can have property rights in places they do not reside, including foreign countries. In contrast, the right of return is basically the right to return home and regain one's life as a normal resident in the country of one's origin. Well, many Liberal Zionists argue that the Palestinians' right of return should be exercised within the borders of the Palestinian State that will be established in the West Bank and Gaza strip. After all, they claim, Israel has its Law of Return for Jews, and Palestine, once established, should have a similar law, entitling the Palestinian Diaspora to return to the Palestinian state. Isn't that a fair compromise? Far from it. In the relationship between Israel as a Jewish state, the world Jews, and those who have persecuted them during the centuries, Palestinians are a by-stander who has never had anything to do with the creation of the Jewish refugee problem or the Jews' predicament in other parts of the world. Jews came to establish their state in Palestine because they were persecuted by Europeans, not by Palestinians. The Palestinian refugee problem, on the other hand, is Israel's doing; Israel is not a by-stander in this relationship, and it cannot claim that the problem is for the Palestinians to solve on their own. Thus, if there is any argument against relocation within Israel, it would have to derive from the "demographic nightmare" argument that I will consider separately, in a moment. The third interpretation of the argument from development can be derived from Waldron's interesting claim that entitlement to property, particularly in land, should always be subject to re-distributive reevaluation due to changes in circumstances.24 Suppose, for example, that I have owned an oasis in the desert which was, at the time, one of many. Waldron claims, and I think that rightly so, that even if the oasis has been wrongfully taken away from me at the time, I may no longer have an entitlement to it if, by now, it has become the only oasis in the desert. The pressing needs of others may outweigh the historic entitlement to the property of the original owner. Surely, that is right. We must concede that re-distributive concerns may outweigh historic entitlements. Redistribution, however, makes little sense if it comes at the expense of the poorer party in the equation. The purpose of re-distribution, at least from the vantage point of a humanistic liberal tradition, is to transfer resources from the rich and fortunate to the poor and less fortunate, not vise versa.25 Given this essential rationale of re-distributive principles, one could hardly claim that re-distributive concerns justify superseding the Palestinians' entitlement to the land they have lost in Palestine. If re-distributive considerations have any bearing on the issue of the right to return, they would point to the opposite conclusion.

4.

The Demographic Argument

Now, at long last, we come to the nationalistic-demographic argument. The vast majority of Israelis are united in their rejection of the right of return because they see it as an end to Zionism. If hundreds of thousands of refugees are allowed to return to Israel and resettle on Israeli land, the Jewish identity of the state will be imperiled. Zionism cannot allow that to happen.26 So here is the problem. Let us assume that the liberal-individualistic arguments against the right to return all fail, as I have argued at some length above: Can you still be a Liberal Zionist? Can one reconcile the liberal principles of justice with the Zionist rejection of the right of return? Perhaps an easy answer might come to Liberal Zionism's rescue: suppose that Israel recognizes its responsibility for the Palestinian refugee problem, but instead of implementing the right of return, it offers monetary compensation to the refugees. Would that be an acceptable solution? I cannot speculate on how feasible, practically speaking, such a solution might be. Nor is it clear how can monetary compensation solve the problem of the Palestinian refugees who live in refugee camps in Lebanon, Syria, and Jordan, since there doesn't seem to be any country which is willing to resettle them.27 But I will not push these practical issues any further. As a matter of principle, however, compensation would hardly suffice, //there is, indeed, a principled conflict between Zionist aspirations for maintaining Israel as a Jewish state, and the rights of Palestinians to return to their homes and regain their residence and property, the ideological conflict remains, notwithstanding monetary compensation. There is something particularly objectionable in the idea that States may buy off, with monetary compensation, their violations of human rights. The atrocities of Serbian Nationalists, for example, cannot be laundered morally, so to speak, by compensating those who suffered from their ethnic cleansing in recent years. Needless to say, individual victims are entitled to compensation when no other rectification of the violation of their rights is feasible. But again, it should not be assumed that compensation can rectify any wrong that has been inflicted on another. There is a deeper issue, here, however. Liberal Zionists tend to argue that the conflict between Liberal principles of justice and Israel's aspiration for maintaining its Jewish identity can be resolved within Liberal political theory. They rely on the recently mounting literature in Liberal political theory which stresses the Liberal values of communal identity, the values of a prospering culture to individuals' flourishing, and even the Liberal values of straightforward Nationalism.281 doubt it, however, that this communal turn in Liberal political theory can solve Zionism's problem. As I have argued above, the refugee problem is a result of gross violations of human rights. More importantly, Israel's refusal to deal with the problem, thus perpetuating the predicament of hundreds of thousands of refugees who live in utter poverty in a degrading refugee 26

24 25

J. Waldron, "Superseding Historic Justice", 22-26 and Waldron's contribution to this volume, sect. 4. For a similar argument see T. Meisels, "Can Corrective Justice Ground Claims to Territory?1'. Waldron's re-distributive argument is nevertheless quite important in a certain context. I think that it does point to an important consideration when we think of the Aboriginal or Indian right to repossess territory that belonged to them centuries ago: I agree with Waldron that at least when it comes to the scope of the territories these communities claim to repossess, the re-distributive considerations have a major role to play: The world has become much more densely populated, land much more scarce, and therefore it doesn't make sense to re-grant Aboriginals or Indians vast amount of land, even if they were the original owners of it centuries ago. In such cases, distributive considerations should outweigh historic entitlements, at least to some extent.

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27

28

I must say that there is a lot of demagogy in such statements on Zionism's part, even on its own ideological grounds. The current Israeli population consists of about 6.5 million people, 82% of which are Jews. Therefore, it would take an influx of millions of Palestinians to put the Jewish majority in Israel at any serious risk, not hundreds of thousands. It is a difficult question, which I cannot address here, whether there is any Arab country which is under a moral duty to resettle the refugees in its borders. It should be noted, however, that Jordan has granted citizenship to all the Palestinian refugees within its borders shortly after the 1967 war. No other Arab country followed suit. W. Kymlicka's Liberalism, Community and Culture engendered a vast amount of literature in the liberal tradition stressing the importance of various communal structures from a liberal perspective. For the influence of this literature on the Israeli political situation see the collection of essays in note 3, above.

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status, is a continuous violation of human rights, day after day. Now, suppose that we generously grant to the Liberal Zionists that Zionism is, in principle, reconcilable with liberal principles pertaining to the values of a unified ethno-cultural community or even nationalism. In other words, suppose that the Jewish character of Israel can be defended on the grounds of a liberal political theory. Still, at best the conclusion could be that the importance of maintaining the Jewish identity of Israel outweighs other liberal values to the extent that it justifies violation of human rights. But then, if we assume, arguendo, that maintaining the Jewish character of Israel justifies the violation of some fundamental individual rights, such as one's right to property and security of residence, why would it not justify the violation of other human rights, if need arises, such as the right to vote in elections, or freedom of speech? Why should Liberal Zionism draw the line at demographic concerns? For example, Israel could maintain its Jewish identity even as a Jewish-minority state, as long as it denies equal rights of citizenship. Is that necessarily worse than denying the right of return? In other words, even if there is a lot to be said in favor of Zionism from a liberal perspective, no liberal political theory can justify the implementation of some sub-set of its values at the expense of gross violations of human rights. We do not think that communal values, and the right to national self-determination, important as they may be, justify ethnic cleansing or population transfers. From a liberal perspective, the implementation of communal values must find its ways within paths which respect fundamental human rights. And what if I am wrong and it is really the case that Israel simply cannot maintain its Zionist aspirations if it implements the Palestinian's right of return? I can only say what my personal reaction would be: so much the worse for Zionism. Conclusion Practical conclusions rarely follow straightforwardly from moral-philosophical analysis. In the tragic and volatile conflict between Israel and the Palestinians practical recommendations would seem to be even more futile. Even from a moral perspective, however, there are numerous complexities that I have not dealt with. In particular, although I have argued that Israel must recognize its responsibility for the Palestinian refugee problem, and allow at least a limited right of return, I did not intend to claim that Israel should bear the sole responsibility for solving this problem. Some of the Arab states should bear part of the responsibility as well. They have encouraged and actively supported the Palestinian revolt in 1948, and then they have failed to take any actions to alleviate the dire situation of the Palestinian refugees within their borders, perpetuating their refugee status for purposes of political manipulation. This, I think, entitles Israel to claim that a substantial part of the cost for solving the refugee problem must be born by the Arab states involved. And then there are other complications. As I have mentioned earlier, not all the Palestinians now living in exile can truthfully claim that they have been expelled by the Israeli forces in 1948; quite a number of them, particularly the elite, had simply escaped even before the actual war begun. Many others were, allegedly, encouraged to leave by the neighboring Arab states. The status of these refugees or Palestinians living in exile, and their right of return, is more problematic, and I couldn't deal with these complexities here. Then there is the problem of the Jewish refugees from Arab states who were forced to leave without their property and whose property had been confiscated, without any compensation, by those states. All these, and many other complexities, make any complete solution to the refugee problem almost intrac-

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table But we should always remember that even a partial solution is often much better ha no u l n at all. More .mportantly, as long as Liberal Zionism continues to ignore the refugees problem and insists on an outright refusal to acknowledge the nghtrfre turn, its moral stance will remain questionable. Moral inconsistencies do not dissipate ,n the smoke of battle.

Bibliography Kvmlicka. W., Liberalism, Community and Culture, 1989. Locke J The Second Treatise on Government, Cambridge Un.versity Press, 1967. Mautner; M A Sag. and R j h a m i r (cds.). Multiculturalism in a Democratic and Ground Claims to Territory?", forthcoming in The Refugee Problem, 1947-1949, Cambridge ;. A History of the Zionist-Arab Conflict 1881-2001, Ran-

or, Ä Ä > —

war

L.R. Rogan and A. Shlaim, Cambridge University Press 2001. Simmons, I , "Historical Rights and Fair Shares", Law ^ Philosophy IA (1995). Thomson, J.J., "Self Defense", Philosophy and Public Affairs 20 (1991). Waldron, J., "Superseding Historic Justice", Ethics (1992). Waldron, J., "Redressing Historic Injustice", this volume.

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335

Comments on: Andrei Marmor, "Entitlement to Land and the Right of Return: An Embarrassing Challenge for Liberal Zionism"

Chaim Gans Marmor argues that the view typical of those who define themselves as "liberal Zionists" is inconsistent on two counts. The first pertains to their rejection of the right of return by resorting to the "Jewish character of the state" argument. Marmor maintains that this opposition is inconsistent with the liberal Zionists' opposition to the imposition of restrictions on the political rights of the Israeli Palestinians. Second, he takes issue with their objection to borders broader than those of 1967. This objection, he argues, is inconsistent with their opposition to returning to the 1947 borders. Let me address the latter accusation first. According to Marmor the 1967 borders are no more morally defensible than borders which include settlements created after 1967; both cases concern borders created by wars, which even if justifiable, do not legitimate territorial acquisition. From this it follows that he should support not only a Palestinian right of return to at least a part of the unpopulated regions of Israel, but also the return of these areas to the future Palestinian state. Marmor's claim is problematic because it takes it for granted that borders determined by the 1947 Partition Plan are the morally justified borders of the Jewish State. The Partition Plan can be regarded as establishing morally legitimate borders for the Jewish State for two alternative reasons. First, it constitutes an international solution to a problem with no clear moral solution. Given its potential to prevent continued violence, there was a moral obligation to adopt this solution. Alternatively, it can be regarded as declaring the morally appropriate solution given the relevant parameters at that time. It was an appropriate solution because it encompassed the areas that included a Jewish majority on the one side and an Arab majority on the other side. However, neither of these justifications is applicable to the realities of "pre" or "post" June 1967. If the viability of the Partition plan in 1947 lay in its ability to provide a reasonable, international solution for a question with no clear solution, then this cannot be said of the 1947 partition plan borders in the reality that had emerged by 1967. In 1967, Israel was a state that identified itself as a Jewish state within the internationally recognized borders of 4 June 1967, which had replaced the international recognition supplied by the Partition Plan of November 1947. If the 1947 decision offered an appropriate solution for the territorial division of Western Eretz Yisrael for substantive reasons, namely a Jewish majority in the area designated for the Jews and an Arab majority in the areas designated for the Arabs, then to that extent, and on that basis, the demographic situation in Eretz Yisrael in 1967 implies a different territorial division between Jews and Arabs. Obviously such a division would not necessarily mirror the borders of 1967; conceivably it might dictate narrower borders. However, it would not mirror the Partition Plan borders of 1947. Furthermore, in 2003, the substantive moral justification of 1947 might actually be compatible with wider borders than those of 67. The situation is therefore one in which there is no clear moral criterion for the determination of borders either narrower or wider than the 1967 borders. In 2003 there is international agreement exclusively with regard to the 1967 borders. Absent any clear criterion for determining borders either broader or narrower than the 1967 borders, given the

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international recognition conferred upon those borders, there is much to recommend the claim that these should be the borders. Marmor does not only ignore or belittle these considerations. He also claims that borders exceeding those of 1967 seem more legitimate than the borders exceeding the Partition Plan of November 1947, since the former would be drawn in accordance with the settlements built on lands not attained by way of ethnic cleansing, whereas the latter were based on borders that are largely the consequence of ethnic cleansing. He therefore claims that if there is a moral difference between the borders that were attained after 47 and those that were attained after 67, it is in favor of the 1967 borders. Accordingly, the reasons for giving up these borders are generally pragmatic, prospective and not principled. In another context he concedes that such reasons also have moral resonance for they have to be acted upon because of the important moral imperative to resolve conflicts. Nonetheless he belittles the significance of this moral obligation, generally describing the problems presented as being pragmatically based. Admittedly, seizing lands by way of ethnic cleansing is perhaps graver than attaining land in a manner that does not involve the crime of ethnic cleansing. On the other hand, there are strong reasons for maintaining that the ethnic cleansing of 1948 was less morally reprehensible than the ongoing settlement activity following 1967. First, the ethnic cleansing of 1948, even if intended by at least some of the political leaders of the Jews in Eretz Yisrael is ascribable to post World War 2 Jewish fears and the natural need that the Jews felt for a state that would provide them with protection, a state whose establishment the Arabs rejected. Though this claim belongs partly to the Zionist narrative, it is not necessarily false. The settlements after 1967 on the other hand, were on behalf of, or at least under the aegis of an existing state; they were established for the purpose of territorial expansion under circumstances, which provided no basis for the fears that may have been justified in 1948. Second, and more importantly, the settlements after 1967 were intended to create almost insurmountable obstacles in the way of the attainment of peace and the resolution of a violent conflict. The moral obligation not to forestall any possibility of terminating the conflict, in my eyes, is no less principled than the obligation not to thwart the Partition Borders of 1947. Determined and calculated steps intended to prevent any possibility of complying with that moral obligation, in the manner and circumstances undertaken in the settlements, prepare the ground for future ethnic cleanings which under the circumstances would be absolutely unpardonable. Marmor's second accusation against the typical position of the Israeli Zionist Left relates to its opposition in the name of the Jewish character of the state to the return of the Palestinians to places that are not their original locations. Marmor maintains that this opposition is inconsistent with a position rejecting the imposition of restrictions on the political rights of the Israeli Palestinians, a position which he rightly assumes, will be held by Israeli leftists. He concludes therefore that just as liberals cannot consent to limitation of the freedom of speech in order to preserve the Jewish character of the state, they cannot agree to perpetuate a situation that is the result of similarly motivated ethnic cleansing. There are numerous answers to Marmor on this count. For example, one could point out the simple fact that the ethnic purging of the Palestinians from certain territories in Palestine does not represent a planned policy for the future, but was rather a one time event that occurred over fifty years ago; the means for preventing the perpetuation of its tragic consequences are not necessarily the repatriation of all those who were ethnically purged. Limitation of political rights in order to preserve the Jewish character of the state, on the other hand, represents a policy that could be effective only if planned in

Comments on

'Entitlement to Land and the Right of Return'

337

advance and as a permanent arrangement, the consequences of which could not be forestalled by any other method save the revocation of the arrangement itself. Furthermore, indemnification for the sufferings that were, and are still being caused by the ethnic cleansing of the Palestinians in 1948, may indeed be imperative. However, the particular method of indemnification must reflect additional, morally based considerations. For example, the Jews in Israel harbor well founded security fears, engendered by the presence of a large acrimonious population, whose resentment against the very establishment of the State is written in blood and injustice. Quite naturally, such seething hostility is not likely to be placated by any Israeli acts intended to atone for that injustice. It could further be pointed out to Marmor that not all ethnic purges are alike. The ethnic purge of the Moslems by the Serbs in Bosnia at the beginning of the nineties, did not resemble the ethnic purge of the Sudeten Germans by the Checks in the aftermath of World War 2. The ethnic purge of the Palestinians by the Jews in 1948 occurred in circumstances that while not admitting of justification may be excused, provided that the Jews acknowledge the injustices committed and compensate for them by means other than a substantial return. However, there is a far more fundamental response to Marmor. One could argue that his claim is sustained exclusively by the vagueness of the term "preserving the Jewish character of the state", and that its use is morally perfidious precisely by reason of its amorphousness. In the context of the right of return the "character of the state" argument could be interpreted as having an entirely clear and lucid meaning, or, alternatively, its conclusion could be reached in complete disregard of this argument. The return of refugees is warranted only in those cases in which their original locations are unpopulated. In such cases there is an individualistic argument supporting their return to places once theirs, and there is no individualistic argument precluding their return (for example, the fact that there are people living innocently in the refugees' original locations and whose lives are by now rooted in those locations). In all other cases however, the injustices can be redressed exclusively by settling members of the dispersion in other locations in Palestine (Western Eretz Yisrael) that are not necessarily their original locations. If the Palestinian-Jewish dispute is to be resolved by constituting separate territorial self-determination for the Jews and the Palestinians, then the inner logic of such a solution entails the conclusion that where individualistic reasons preclude the return of Palestinian refugees to their original homesteads, they ought to be resettled in territories designated as Palestinian. In other words, if Zionism or the implementation of its goals are morally justified in the existing conditions, and assuming an identical nationalistic justification for the establishment of a Palestinian state, it becomes unclear why Marmor supports the repatriation of refugees unable to return to their original locations to other unpopulated Israeli areas, and not to unpopulated Palestinian areas. After all, these refugees can either return to a state in which the Jews enjoy self-determination, or to one in which the Palestinians enjoy self-determination. Either way, they would be returning to the regions of their historical homeland and be in close proximity to their original locations. In these kinds of cases, it becomes difficult to justify the request that they should necessarily return precisely to the Jewish state. The issue concerns opposition to a return of Palestinian refugees to unpopulated areas in the Jewish state, which are not their original locations. This objection to a return of Palestinian refugees to unpopulated areas in the Jewish state, which are not their original locations, does not rely upon the "Jewish character" argument. Alternatively, it can be regarded as providing this argument with a very clear

338 Chaim Gans

339 The Special Claims of Indigenous Minorities to Corrective Justice1

Andreas F0llesdal

Contents 1.

Liberal Contractualism

2.

Valuing Culture and Controlling Expectations through Cultural Change

3.

The Special Grounds of Indigenous Peoples

3.1 The Indigenous Have No Monopoly on Suffering 3.2 The Grounds for Claims - Three Types of Present Damage 3.3 Claims of Remedial Justice Not Too Weak 3.4 Clarification Regarding the Normative Relevance of Modernization 4.

What Justice Requires for Indigenous Peoples

4.1 Claims Based on Sovereignty Lost Do Not Require Present Secession 4.2 Control over Resources 4.3 Some Forms of Self-governance Conclusion

341 343 345 346 348 349 349 349 350 350 350 351

Are indigenous minorities different from other national minority groups? Some hold that the indigenous are normatively justified in requesting both legal claims on material resources, and to political autonomy aimed at maintaining their own ways of life. The indigenous have more extensive claims in these regards than citizens generally, and than do other identifiable groups who have long historic ties with the territory, and a distinctive culture compared to other citizens - often called 'national minorities'.2

The present reflections have benefited from a workshop on sub-sovereign nations at ECPR 1998, and from the Einstein Forum on Historic Injustice, in Potsdam, 2000, especially from comments by my co-director at the workshop and convenor of the Einstein Forum Lukas Meyer. 1 am also grateful for detailed and constructive criticisms from Anne Julie Semb. I explore related issues in A. F0llesdal, "Minority Rights", and A. F0l!esdal, "Indigenous Minorities and the Shadow of Injustice Past". For legal references I draw on several contributions in A. F0llesdal, "Sami Claims to Land and Water", particularly A. Eide, "Legal and Normative Bases for Saami Claims to Land in the Nordic Countries", and H. Minde, "Sami Land Rights in Norway". "National minorities" are not defined in international law, the 1995 Council of Europe Framework Convention for the Protection of National Minorities (ETS No. 157) notwithstanding. Definitions are found in Council of Europe Parliamentary Assembly, Recommendation 1201 on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights; W. Kymlicka et al., The Rights of Minorities.

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meaning within the context of the issue of the right of return, and in doing so it also avoids the moral dangers inherent in its vagueness.

339

The Special Claims of Indigenous Minorities to Corrective Justice

l

Andreas F0llesdal

Contents 1.

Liberal Contractualism

341

2.

Valuing Culture and Controlling Expectations through Cultural Change

343

3.

The Special Grounds of Indigenous Peoples

345

3.1 The Indigenous Have No Monopoly on Suffering

346

3.2 The Grounds for Claims-Three Types of Present Damage

348

3.3 Claims of Remedial Justice Not Too Weak

349

3.4 Clarification Regarding the Normative Relevance of Modernization

349

4.

349

What Justice Requires for Indigenous Peoples

4.1 Claims Based on Sovereignty Lost Do Not Require Present Secession

350

4.2 Control over Resources

350

4.3 Some Forms of Self-governance

350

Conclusion

351

Are indigenous minorities different from other national minority groups? Some hold that the indigenous are normatively justified in requesting both legal claims on material resources, and to political autonomy aimed at maintaining their own ways of life. The indigenous have more extensive claims in these regards than citizens generally, and than do other identifiable groups who have long historic ties with the territory, and a distinctive culture compared to other citizens - often called 'national minorities'.2

The present reflections have benefited from a workshop on sub-sovereign nations at ECPR 1998, and from the Einstein Forum on Historic Injustice, in Potsdam, 2000, especially from comments by my co-director at the workshop and convenor of the Einstein Forum Lukas Meyer. I am also grateful for detailed and constructive criticisms from Anne Julie Semb. I explore related issues in A. F0llesdal, "Minority Rights", and A. F0llesdal, "Indigenous Minorities and the Shadow of Injustice Past". For legal references I draw on several contributions in A. F0llesdal, "Sami Claims to Land and Water", particularly A. Eide, "Legal and Normative Bases for Saami Claims to Land in the Nordic Countries", and H. Minde, "Sami Land Rights in Norway". "National minorities" are not defined in international law, the 1995 Council of Europe Framework Convention for the Protection of National Minorities (ETS No. 157) notwithstanding. Definitions are found in Council of Europe Parliamentary Assembly, Recommendation 1201 on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights; W. Kymlicka et al., The Rights of Minorities.

340 Andreas F0llesdal The following remarks defend these claims, based on the indigenous ancestors' historic control over territories later forcefully incorporated into a state, combined with the impact of their ancestors' culture on present practices and expectations. This is not to deny that national minorities also have claims of justice owing to their long history on the territory and injustice regarding language and property rights, as well as unjust coercive assimilation. Yet their claims are different, stemming from the fact that while national minorities have distinct cultures and long histories on the territory, they did not have historic control over the territory. Such an account, sketched in the following, may serve a double purpose if it is sound: both political and philosophical. It may provide a defence of the legal claims to autonomy and land rights of some indigenous peoples e.g. as laid out in ILO Convention 169, and as presented by James Anaya3, guiding further legal developments, interpretations, and weighing of claims: Therightsof ownership and possession of the peoples concerned over the lands that they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.4 Yet the account pursued here is not without a critical edge: The explication of 'indigenous' is narrower than current legal usage, since this account only consider peoples who have suffered partial or total dispossession of property and control over land and resources once enjoyed exclusively by them.5 In comparison, the ILO Convention on Tribal and Indigenous peoples would allow that indigenous peoples need only have resided on the territory - de facto control over land and resources does not seem to matter: peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.6 The philosophical contribution is twofold. Firstly, such an account might lay to rest certain concerns raised against the special claims of the indigenous by reflective theorists of minority rights, including four objections, that 3 4

5 6

J. Anaya, Indigenous Peoples in International Law. ILO Convention 169, Art. 14. Similar claims may emerge within the United Nations, which acknowledged indigenous peoples in 1982 when it established a Working Group on Indigenous Populations, and the 1994 UN Draft Declaration on the Rights of Indigenous Peoples, Art. 33 (A. Eide, "Legal and Normative Bases for Saami Claims to Land in the Nordic Countries"). E.-I. Daes, Indigenous Peoples and Their Relationship to Land; ref. A. Eide, "Legal and Normative Bases for Saami Claims to Land in the Nordic Countries". ILO Convention 169, Art 1.1.b. Contrast the more extensive definition of Article 1: " 1 . This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. 2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply."

The Special Claims of Indigenous Minorities to Corrective Justice 341 - "The indigenous have no monopoly on suffering": The hardship visited on indigenous peoples is not so special as to warrant special normative claims and legal conventions as compared to national minorities or stateless nations who are covered by a 1995 Council of Europe Framework Convention7 - which deliberately leaves 'national minorities' undefined.8 Thus Kymlicka asks On what basis can we say that indigenous peoples have a stronger claim to self-determination than other national minorities? Why should the sami have a right to self-determination under international law and not the Catalans? Why the Inuit and not the Quebecois? Why the hill tribes in India and not the Kashmiris or Sikhs? Why indeed do we need to single out indigenous peoples at all under international law? Why not simply include indigenous peoples under a broader category of national minorities and assert that all national minorities haverightsof self-determination?9 - "Claims based on lost sovereignty are too strong": Claims based on historical sovereignty that might single out indigenous peoples from national minorities would be too strong. Such arguments would support restoring status quo ante, full sovereignty of independent states - i.e. secession - rather than restrict state sovereignty or "develop new forms of self-determination".1 - "Claims of remedial justice are too weak": Remedial correction of past injustice is insufficient as grounds for permanent rights of self-determination for indigenous minorities, since such considerations only support transitional, temporary rights rather than permanent allocation of self-government.1 - "Avoid mystifying appeals to tradition". Jeremy Waldron insists that liberal accounts of normative legitimacy must avoid being "burdened by a mystifying heritage of tradition".12 Secondly, the arguments for self-determination based on historic control over territory have implications beyond indigenous groups' claims, of particular interest when received conceptions of the world order of sovereign states are challenged by new forms of multi-level political authority. For instance, the normative claims of member state legislative and executive bodies in the European Union may be bolstered by such considerations, in support of a federal rather than a centralised Union. The account below agrees that other groups also suffer, while it denies the next two objections. It does not insist that indigenous groups can claim full sovereignty - partly since it does not address the relative weight of such claims vis-ä-vis claims of other current inhabitants. It holds that remedial justice may require permanent self-determination. Some form of federal or consociational arrangement may be appropriate - as, indeed, would seem consistent with Anaya.13 Whether it avoids charges of mystery remains to be seen. The main point argued here is that there are liberal contractualist reasons why the indigenous minority's history of prior occupation, institutions and culture should affect present constitutional allocation of authority. Past injustice perpetrated against such control affects the claims of present members to arrangement of political decision7 8 9 10 11 12 13

Council of Europe, Framework Convention on National Minorities. Council of Europe, Explanatory Report Regarding Framework Convention for the Protection of National Minorities, Art. 12. W. Kymlicka, Politics in the Vernacular, 125. Ibid. Ibid. J. Waldron, 'Theoretical Foundation of Liberalism", 150. J. Anaya, Indigenous Peoples in International Law, 78.

342 Andreas F0llesdal making over the territory and to substantive benefits. History matters, then, with respect to the question of whether the normative claims hold. Section 1 lays out some relevant features of liberalism; section 2 explores the relevant interests that must be given weight regarding this issue. Sections 3 and 4 argue the case for special claims by present indigenous groups. The argument does not rest on the particularly exceptional and vulnerable culture of this group, but on the de facto regulatory control over territory and people exercised by previous members.14 /.

Liberal Contractualism

The tradition of Liberal Contractualism specifies the vague ideal of equal dignity by holding that every individual's interests must be secured and furthered by the social institutions as a whole. Institutions must satisfy principles that persons can reasonably propose as a basis for mutual, informed agreement.15 Some aspects of this perspective are relevant for avoiding some criticisms against contractualist responses to historic injustice. We must consider the relevance of institutions, the nature of justification, and the significance of consent. Control and influence over social institutions through political decisions are important goods, and central issues of legitimacy. Social institutions have a pervasive impact on us: they exercise a strong influence on us, or our life plans and our expectations. Defined by law and maintained through force, they provide the backdrop for the distribution of important goods, powers, burdens and obligations. Institutions even affect the development and satisfaction of our interests by framing our expectations. This impact explains why individuals are taken to have an interest in political control and influence over the social institutions - especially if the alternative is that others shape those institutions. The principles of justice, and particular institutions assessed by them, are not deduced or generated by the process of checking whether equal respect is secured.16 The procedure ranks alternative suggested proposals, but does not offer a deductive path to any one of them. And the process can leave a range of permissible - i.e. unobjectionable - principles. Furthermore, the same principle of legitimacy may allow a variety of sets of institutional arrangements, for instance different arrangements regulating inheritance, tax and welfare, all of which give sufficient respect to individuals' important interests. The unity provided by such a theory is therefore not one of deduction, but an account of a set of institutions that shows how they can - or cannot - be regarded as an expression of equal respect. Thus different sets of institutions may be legitimate, since they may have acceptable effects on individuals by the lights of the same normative principles of legitimacy.

14

15 16

David Lyons (D. Lyons, "The New Indian Claims and the Original Rights to Land"), George Sher (G. Sher, "Ancient Wrongs and Modern Rights"), Jeremy Waldron (J. Waldron, "Superseding Historic Injustice", J. Waldron, "Redressing Historic Injustice") and Robert Goodin (R.E. Goodin, Waitangi Tales) have presented in-depth systematic reflections on the present normative implications of past injustice, some of which I have addressed in A. F0llesdal, "Minority Rights". I here address some of the issues concerning indigenous populations in particular. J. Rawls, A Theory of Justice; R. Dworkin, "Liberalism"; T.M. Scanlon, Contractualism and Utilitarianism; C.R. Beitz, Political Equality; B. Barry, Justice as Impartiality. Liberal Contractualism is thus not an example of the abstract political philosophy criticized by David Miller (see D. Miller, "Nationality", 71; discussed at A. F0llesdal, 'The Future Soul of Europe").

The Special Claims of Indigenous Minorities to Corrective Justice 343 Liberal contractualism seeks to delineate some limits to the morally binding rules and practices that surround us. Appeals to hypothetical consent are often part of such arguments, in the form of 'what one would not have consented to' when delineating our moral duty to obey the law of the land. Yet consent - hypothetical, tacit or otherwise does not create a moral obligation or duty in the same way as free and adequately informed consent binds those who so consent. To ask if one could have or would have consented to particular principles only guides our thought regarding whether these principles give all individuals their due. Hypothetical consent serves to recognise and delineate legitimate authority, but consent is not held to generate the moral authority of institutions. This sketch allows a response to criticism by Waldron against resorts to hypothetical consent when redressing historic injustice. He worries about hypothetical choice and consent as sometimes employed in a very different - and more problematic - way. Waldron doubts the value of considering hypothetical choice due to difficulties in guessing what would have happened. He considers, only to reject, suggestions following the Vienna Convention on the Law of Treaties Article 69 (2), that we should determine insofar as possible, what would have been the case in the absence of the injustice committed: "some of the events in the sequel ... are exercises of human choice rather than the inexorable working out of natural laws ... hat would the tribal owners of that land have done with it, if wrongful appropriation had not taken place? To ask this question is to ask how people would have exercised their freedom if they had had a real choice."18 Waldron objects that it is difficult - and normatively irrelevant - to second-guess choices: "We make predictions all the time about how people will exercise their freedom. But it is not clear why our best prediction on such a matter should have moral authority in the sort of speculations we are considering."19 "My reasonable guess has no normative authority whatever with regard to the disposition of his estate. Now if this is true of decision-making in the real world, then I think it plays havoc with the idea that, normatively, the appropriate thing to do in the rectification of injustice is to make rational and informed guesses about how people would have exercised their freedom. For if such guesses carry no moral weight in the real world, why should any moral weight be associated with their use in counterfactual speculation?"20 We may agree with Waldron that using hypothetical choice for tracking plausible outcomes regarding property transfer is problematic. However, in contractualist arguments concerning legitimacy, hypothetical choice is not used to second-guess the details of particular transactions. Instead, hypothetical choice is used to indicate the constraints on legitimate orders, namely conditions under which actual choices and agreement, e.g. to treaties, bind participants morally to the contract. Contractualism holds that some such processes and treaties are illegitimate because they fail to ensure all participants' important interests, expressed in terms of what people would not have agreed to. This limited role of hypothetical consent is compatible with Waldron's claim, that it is implausible to rely on hypothetical choice to identify the legitimate outcome of one nego17 18 19 20

M.C. Murphy, "Acceptance of Authority and the Duty to Comply with Just Institutions"; J. Waldron, 'Theoretical Foundation of Liberalism". J. Waldron, "Superseding Historic Injustice", 9. Ibid., 10. J. Waldron, "Redressing Historic Injustice".

The Special Claims of Indigenous Minorities to Corrective Justice

344 Andreas F0llesdal

tiation, for purposes of redressing past deviations from such an outcome. We do grant moral authority to our assumptions of how people would have exercised their freedom, but limited to reasoned claims concerning which choices they would not have made freely. Such claims support the view that the current state of affairs would have been different had those actions not been carried out. Particularly, it is likely that current descendants of the indigenous would have retained more control over territory and resources. Some of the challenges facing this view are addressed below, in particular 'which interest' and 'claims to which goods and legal powers'. 2.

Valuing Culture and Controlling Expectations through Cultural Change

Assessment of institutions and practices require that we consider the impact of alternative sets of rules on the relevant interests of those affected. I suggest that the relevant interests include not only basic needs and shares of goods and powers regarded as allpurpose means for pursuing one's conception of the good life and peace, but also culture, and control over cultural change. The last two merit particular attention for the discussion that follows. Liberal theories are sometimes said by communitarian thinkers to deny the intrinsic value of community, and ignoring the "embedded" nature of human beings.21 However, Liberal Contractualism agrees that the social institutions, 'culture' and practices shape our expectations and aspirations in fundamental and inescapable ways. The relevant interests to consider must include individuals' interests in social activities, involving the co-operation of others. 'Cultural membership' is recognised as a good - though the definitions of 'culture' and the reasons for valuing it differ among liberals. While a full definition of 'culture' is beyond the scope of these reflections, some clarification is in order. For our purposes we may think of culture as shared beliefs and rule-governed patterns of behavior. Allan Buchanan suggests that cultural membership must be acknowledged as a constituent part of the good life for many individuals.22 Will Kymlicka argues that cultural membership is valuable as a precondition for real choices regarding one's conception of the good life. Such membership provides the necessary structure for individuals' meaningful pursuit of their various conceptions of the good life.23 Kymlicka explicitly grounds the constitutive value of culture on a liberal ideal of the autonomous individual, in effect providing 'another sectarian doctrine'.24 Cultural membership can be valued without reliance on quite as contested ideals. Instead, being part of cultures is important due to individuals' interest in forecasting their future correctly, forming legitimate expectations and being assured that others honour our

21

22 23

24

For different sorts of criticisms, and defenses on other grounds: A. Gutmann, "Communitarian Critics of Liberalism"; J. Cohen, "Review of Walzer's Spheres of Justice"; A. Buchanan, Secession; S. Caney, "Liberalism and Communitarianism"; S. Mulhall, "Liberalism, Morality and Rationality"; S. Mulhall and A. Swift, Liberals and Communitarians; A. F0llesdal, "Communitarian Criticisms of Liberal Contractualism"; L.H. Meyer, "Cosmopolitan Communities". A. Buchanan, Secession. W. Kymlicka, Liberalism, Community and Culture, 165; W. Kymlicka, Multicultural Citizenship; A. Margalit and J. Raz, "National Self-determination"; A. Buchanan, Secession, 53-54; W. Kymlicka, Multicultural Citizenship. J. Rawls, "The Idea of an Overlapping Consensus", 6 and 24; cited in W. Kymlicka, Multicultural Citizenship, 164.

345

important and good faith expectations.25 Culture - that is, rule-governed behaviour in general, and especially institutions, where the rules are sanctioned - shape our expectations because they structure likely options, attainments and needs: paths and options. Thus Liberal Contractualism accommodates the 'communitarian' concern for constitutive attachments, even those unchosen by the individual, insofar as they shape expectations - as long as this behavior is normatively permissible. Satisfying legitimate expectations is an important interest, and stable social institutions and culture are crucial for making and pursuing life plans. We thus have good reason to maintain social institutions, as long as they are compatible with principles of legitimacy, since it is only under fairly stable institutions and other practices that individuals can create and meet their expectations. This interest in culture for forecasting the future also supports claims to control cultural change - which is central to the claims of indigenous minorities. Institutional and cultural changes challenge our ability to maintain coherence and continuity in our lives. The value of institutions and culture in fostering expectations disappear if these expectations are not borne out. Changes in values, norms, institutions and language create new options for life choices, but other options disappear. Thus, cultural and institutional changes should not be too abrupt and unexpected, so as to not violate individuals' expectations. When cultures and institutions change in ways that affect important interests, members must be able to revising their plans so as to accommodate shifting options and consequences. I submit that this is more likely to occur if individuals enjoy control over cultural changes that affect them. This allocation of control increase the likelihood that changes are expected, and it may minimise conflicts with existing, valued expectations. This is not to deny that many factors are important, including the kind of control exercised, the sorts of changes in circumstances that may require cultural changes, etc. Note that this interest in controlling cultural change is not based on a voluntaristic conception of the person, holding that the individual values the ability to continually change her plans and values independently of others. The concern is rather to be able to pursue a meaningful life, to form a life plan, and to maintain control over changing expectations. Thus the interest in controlling changes in one's culture does not rest on an assumption of the value of autonomous choice. Rather, the claim is as follows. The expectations formed on the basis of one's culture are of great value to us. Our interest in forming correct expectations supports claims to be able to regulate the speed and direction of cultural change, insofar as alternative allocations of such authority poses avoidable risks. We also have an interest in being informed about other changes and adaptation of one's culture, so as to reduce the risk of false expectations. What matters on this view is control over cultural changes, not to maintain cultures unchanged, as some arguments for indigenous groups' rights might suggest. Note that this interest, while important, may not override other more vital interests, for instance in satisfying basic needs required for survival as expressed in human rights. In cases of conflict, the interest in staying alive clearly overrides interests in being able to forecast how others will behave. Thus autonomy regarding cultural change should be restricted by human rights considerations. This interest in controlling cultural change is common to all, and helps explain why all minorities may claim various forms of protection of their culture. However, indigenous peoples have stronger claims in this regard. This is not to deny that migrant work25

T.M. Scanlon, "Rights, Goals and Fairness", 102; A. F0lIesdal, "Minority Rights".

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346 Andreas F0llesdal

ers and other recent immigrants, to a larger extent must therefore accept the host state and its culture on its terms. They may only to a lesser degree claim protection for their original culture and safeguards regarding the speed and direction of change and integration of their culture. 3.

The Special Grounds of Indigenous Peoples

The exposition in the following draws on parts of the definition of indigenous peoples of FLO Convention 169 Art 1.1.b quoted above. Indigenous minorities had established a community, enjoying de facto control over resources and land, on a territory later included in the current state. The group was at some point maintaining social, economic, cultural or political institutions, only to have them be overturned or subordinated by groups who arrived later. The membership criteria for the indigenous minority has been sufficiently clear so that impact on one generation has consequences on identifiable later generations.26 The indigenous population has thus maintained a culture sufficient to relay expectations of importance from one generation to the next, even when the newcomers and their heirs over generations have maintained control over land formerly controlled by the indigenous. Contractualist considerations lead us to regard such invasion as illegitimate, and moreover lay down significant conditions for when treaties or outcomes of settlement would be morally binding. To delineate such constraints, arguments involving hypothetical acceptance are illuminating. Consider, for instance, Rousseau's rejection of the institution of slavery: To say that a man gives himself gratuitously is to say something absurd and inconceivable. Such an act is illegitimate and null, if only because he who does so is not in his right mind. To say the same thing about an entire people is to suppose a people of madmen. Madness does not make right. Even if everyone could alienate himself, he could not alienate his children. Their freedom belongs to them; no one but themselves has arightto dispose of it.27 If the indigenous were free to walk away from the bargaining table to the status quo, it seems clear that they would not knowingly have agreed to terms that would leave them very much more badly off- unless the other parties to the agreement were in dire need. Dividing land rights and political power sharing with newer arrivals may be required by contractualism in times of need or forced migration. Even then, it seems that the original inhabitants would have sought to ensure that some of their most valued practices could be maintained in forms securing their interests. I take it that arguments of this sort justify the position found in both international human rights covenants: "In no case may a people be deprived of its own means of subsistence." Some of the group's practices may indeed be so central to the values of that historic group that it is hard to believe that they would have parted voluntarily with certain specific objects, such as religious sites, or certain customs.28 Such bargains are thus illegitimate.

26

27 28

- whoever actually populates those generations. I leave aside the intriguing challenges to intergenerational justice stemming from the fact that other persons would have lived if the injustice had not occurred. Those challenges are not unique to indigenous groups. J.-J. Rousseau. On the Social Contract. See J. Waldron, "Redressing Historic Injustice", this volume.

347

These considerations lend support to claims by the present indigenous minority, regardless of their present plight, that they should enjoy control over land, though now shared with other affected parties. Such arguments come in addition to any arguments based on present hardship and the claims to control own culture - arguments that may apply to many national minorities and other groups. For our purposes, what matters is that at one point the ancestors of present indigenous enjoyed control over territory and resources, maintaining political and social structures in the area. Some other groups who also wanted to live there and who arrived after the indigenous group, acted illegitimately in invading and upsetting the indigenous' control and expectations. Assuming that the bargaining positions of the indigenous group(s) and the newcomers were morally legitimate, it seems clear that the indigenous group's established control over the land should affect the terms of any fair agreement. 3.1

The Indigenous Have No Monopoly on Suffering

This sketch suggests, then, that it is not only the fact of past and present suffering that matters from the normative point of view, but also the fact of established control and expectations of former generations. It is the latter that makes the fair claims of indigenous peoples different than those of other groups who arrived after the territory was under de facto control by others, such as immigrant minorities. Since the indigenous group has enjoyed unrestricted self-determination in a territory, their real self-determination is violated more thoroughly than other national groups. This account supports James Anaya's view,29 that while all national groups have claims to substantive self-determination with respect to five dimensions of social and political life,30 what is special with indigenous peoples is the remedial aspect of selfdetermination: Their substantive self-determination has been violated more. The claim is thus not that they have been treated worse than other minorities (thus avoiding the objection by Kymlicka31), but that their ancestors enjoyed so much more self-determination before, and formed their practices and expectations on that basis. A fair agreement from the position of de facto social control over the territory would surely provide the indigenous population with the ability to control changes in their own culture - and more than that. In a negotiation among free equals, there would be no reason for the indigenous minorities to turn over control over resources and political autonomy, receiving nothing in return. Past control over territory by their ancestors support the claim that the present rights of indigenous minorities should include not only control over the integration of their culture into the mainstream, but also powers to ensure the maintenance of their culture and indigenous decision-making institutions.32 Prior control thus affects the legitimate principles of constitutional reform concerning changes in the institutions of governance. Surely the indigenous groups would have reason to object to reforms that would prevent them from safeguarding their prospects for maintaining those parts of their culture that they deem important for their central interests, including some share of rights of use and disposition of property, and influ-

29 30 31 32

J. Anaya, Indigenous Peoples in International Law. Non-discrimination; cultural integrity; control over land and resources; social welfare and development; and self-government (ibid., 97-125). W. Kymlicka, Politics in the Vernacular, 128. The case is more complicated, but hardly weaker, where treaties were entered into but later unilaterally violated by the invading community.

The Special Claims of Indigenous Minorities to Corrective Justice

348 Andreas F0llesdal

ence over common decision making. Such principles of moderate privilege to established peoples would be preferable on contractualist grounds to principles allowing total transfer of property and power, or simple majority vote, since the latter principles would endanger the central interests of the established people, yet not be necessary for securing equally important interests for newcomers - given that newcomers would not yet have formed expectations and practices based on the territory. Two points may be worth noting. These claims depend crucially on historical facts both of prior control by the ancestors of present indigenous groups; and concerning the content of present claims may rely on plausible historical links between present goods and the central expectations and cultural traits of the past. Secondly, this account allows that several indigenous groups may all truthfully hold that they enjoyed control over the territory before they were taken over. Thus several present groups may have similar claims on the basis of prior control over territory, if all groups' ancestors enjoyed control over the territory and established expectations at different times or in different ways. This account's defense of the normative claims of indigenous peoples may require us to regard more peoples as indigenous - possibly including some of those called 'national minorities',33 and allows that conflicts may arise among several indigenous groups who have controlled the same territory at various times in the past. The details of how an alternative actual chain of bargains would have unfolded are unavailable to us. But this does not seem a major or decisive objection, since the contractualist account does not require that the present distribution of goods and control must be corrected so as to mirror, as close as possible, what would have happened under more just conditions. The claim is only that historic injustice did take place, and that this supports some reparation today. I suggest that given the long historical trajectory since newcomers arrived on the territory, the scope of repairable injustices is limited to only some of those aspects of colonialisation that have traceable effects today, without indicating precisely what must be done - hence avoiding Waldron's criticism discussed above. So which are these effects? We can only identify some consequences of agreements or transfers of control. We turn to this issue now. 3.2

is not to deny that other material goods may play a diminishing role in individuals' core expectations (with Waldron34). Secondly, certain institutions such as property rights may be shaped to the disadvantage of indigenous minorities. The particular bundling of Hohfeldian rights may hinder the projects valued by this minority, such as securing seasonal access to maintain nomadic movement patterns or grazing opportunities for their animals. Other modes of institutionalising control over goods would have been better suited to secure the cultural expressions of the indigenous people. Thus the present structures may restrict the options for this minority, as compared to the original real control over territory. The present order is therefore shaped - unfairly - by the injustices of the past. 5 The ill done is thus not only to disappoint the minority's expectations, but also to prevent them from forming expectations under fair background conditions, given their previous complete control over such practices. Thirdly, the present indigenous minority may suffer from a lack of control over such structures - institutions and practices generally - which facilitate some projects and hinder others, and shape the members' expectations. It is not only material goods and institutional rights and immunities that are of value, but also authority - the control over such institutions and practices. 3.3

Claims of Remedial Justice Not Too Weak

This extended list of ills helps explain why special rights may be in order - why repayment might not suffice, and why injustice remains across generations. To be sure, this account depends upon causal link between the past wrong and the present wrong, a link that could be of only temporary significance. Some of the effects of historic injustice cannot be overcome except by providing this minority with certain forms of self-determination. Temporary measures to correct past injustice until the damage is undone may well be insufficient. Yet the link may also support long-term transfers of institutional control. This account thus seems to avoid Kymlicka's concern that historic injustice only supports temporary measures.36

The Grounds for Claims - Three Types of Present Damage

Past wrongs done to indigenous people cause at least three types of present wrongs for members of that minority, concerning material property, institutions, and control over institutions. Firstly, the illegitimate taking of certain property from the indigenous people may still have effects on present generations. Current generations would be better off with some of this property - including, for instance, ownership of certain religious objects mountains and burial grounds, or skulls of forefathers now placed in museums. These objects can convincingly be linked to central beliefs or practices of the indigenous culture. They can hardly once have been legitimately transferred by contract. Insofar as these objects were not private property subject to untraceable exchanges, this is a further reason why such objects avoid Waldron's challenge of 'second-guessing history'. This

33

349

Conference on Security and Cooperation in Europe, Declaration on the Rights of National Minorities; Council of Europe, Framework Convention on National Minorities; W. Kymlicka, Politics in the Vernacular.

3.4

Clarification Regarding the Normative Relevance of Modernization

Indigenous peoples have not always pursued their traditional ways of life uncontaminated. Thus the Saami enjoy mobile phones and snowmobiles, and some reindeer herders use helicopters. It might be thought that these modem elements threaten their claims to special consideration. Kymlicka notes that one central reason for the international norms for indigenous peoples seems to be the cultural differences between them and the larger society. Insofar as this is the reason for claims, self-determination must not be used to modernise - at the pain of losing their special claims.37 However, this contractualist account of indigenous minorities' claims is not based on the need to maintain a pre-modem lifestyle and a special culture at special risk in mod-

34 35

J. Waldron. "Redressing Historic Injustice", sect. 7. C. Offe and U. Poppe, "Transitional Justice in the German Democratic Republic and in Unified

36 37

Germany". W. Kymlicka, Politics in the Vernacular, 128. Ibid., 129.

350 Andreas F0llesdal

ern society. The interest at stake is not to maintain one's culture unchanged, but rather 1) to maintain control over changes to one's culture, and 2) enjoy fair control over the institutions that now shape the lives of the indigenous minority, given that their predecessors once enjoyed control over such institutions and practices unrestricted by the similar interests of others. This account thus also supports Anaya's claim, that the point of indigenous' claims is not to maintain a static, isolated pre-modern lifestyle but to secure fair terms of interaction and self-determination regarding changes to the own culture 38 4.

What Justice Requires for Indigenous Peoples

A brief sketch may indicate the kinds of reparations that are required. 4.1

39 40 41 42 43 44

4.2

351

Control over Resources

The forced redistribution of certain goods may be required, insofar as such objects can be identified and their significance for the present indigenous population established. Yet how can such significance be established? One such link may be based on the religious beliefs of present indigenous of demonstrable long standing, for instance supporting return of ancestors' bodily remains or old religious objects from museums. However, there are several constraints on such claims. The basic needs of those living there now should overrule reparation. This requirement limits, but does not prohibit reparation. Moreover, upsetting the not clearly illegitimate expectations of present owners' is also morally problematic. The burdens should be distributed among the citizenry at large, so as to reduce the impact on the present holders of such property. General taxation and buying out the descendants of intruders may be preferable to expropriating their goods and transferring them without compensation.

Claims Based on Sovereignty Lost Do Not Require Present Secession

Waldron assumes that the "task of reparation is to transform the present so that it matches as closely as possibly the way things would be now if the injustice had not occurred."39 Kymlicka appears to hold that the prior self-determination of indigenous peoples can only support claims to re-establish independent political communities, apparently in the form of secession, rather than to alter the terms of integration.40 Contractualism denies that sovereignty lost gives rise to overriding claims to secession.41 All that may be required is to ensure that the indigenous minority is provided for - within certain limits. The question to be answered is what are fair terms of cooperation among the descendants of original inhabitants and of the invaders, given that they need a common conception of justice and fair distribution of resources. It is not clear that these terms must seek to mirror precisely the counterfactual situation where the injustice had not occurred - e.g. full sovereignty. But the terms must be within the constraints set by contractualist considerations about legitimate agreements when one party had an established society in place, and when the newcomers changed these established practices just for the sake of their own preferences.42 Note that what counts as an established society are such things as cultural patterns, social institutions or legal system43 as Vitoria argued regarding the "Indians lately discovered" (1532) that "there is a certain method in their affairs, for they have polities which are orderly arranged and they have definite marriage and magistrates, overlords, laws, and workshops and a system of exchange, all of which call for the use of reason; they also have a kind of religion".44

38

The Special Claims of Indigenous Minorities to Corrective Justice

J. Anaya, Indigenous Peoples in International Law, 183; W. Kymlicka, Politics in the Vernacular, 126. J. Waldron, "Redressing Historic Injustice", sect. 4. W. Kymlicka, Politics in the Vernacular, 125. See L.H. Meyer, 'Transnational Autonomy" for an extensive discussion. See Scanlon's Principle of established practices, T.M. Scanlon, What We Owe to Each Other. See United Nationals Subcommission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations. F. do Vitoria, De Indis Et De Ivre Belli Relectiones.

4.3

Some Forms of Self-governance

Claims to territory today based on past injustice raise many difficult problems of compensation and damages to third parties 1992).45 Nevertheless, past control over territory suggests that the present rights of indigenous minorities should include not only control over the integration of their culture into the mainstream, but also powers to ensure the maintenance of their culture and indigenous decision-making institutions. This account would thus support the UN Draft Declaration on the Rights of Indigenous Peoples, art. 19.46 The indigenous people thus have strong claims to exercise control over changes to their culture, and to self-determination in general. These claims support institutional responses allowing the splitting of powers in quasi-federal arrangements (Kymlicka's 'self-government rights'), and/or skewed voting weights or veto rights in common decisions (Kymlicka's 'special representation rights'). Conclusion I have sought to explore a contractualist case for the contested view that indigenous peoples have special claims on resources or forms of political autonomy, due to their historical autonomy and de facto control over resources in a territory. Criticisms by Kymlicka and Waldron regarding the contractualist approach, the grounds and implications of such claims have been addressed. If such a case withstands scrutiny, the relative weight of these claims on resources and control still remains to be determined. Creative ways of accommodating these claims while respecting the not illegitimate expectations of other present owners and other inhabitants must be encouraged. These reflections at least indicate why such creativity is important, and what sorts of arguments should be included in the institutional explorations. The implications may be relevant not only for indigenous peoples as traditionally conceived, but also for addressing shifts in the world order of sovereign states wrought by new forms of multi-level political authority, in Europe and elsewhere.

45 46

J. Waldron, "Superseding Historic Injustice". United Nations, Draft Declaration on the Rights of Indigenous Peoples, 1994.

352 Andreas F0esdal Bibliography Anaya, J., Indigenous Peoples in International Law, Oxford University Press, 1996. Barry, B., Justice as Impartiality, Oxford University Press, 1995. Beitz, C.R., Political Equality, Princeton University Press, 1989. Buchanan, A., "Assessing the Communitarian Critique of Liberalism", Ethics 99 (1989). Buchanan, A., Secession. The Morality of Political Divorce From Fort Sumter to Lithuania and Quebec, Westview, 1991. Caney, S., "Liberalism and Communitarianism. A Misconceived Debate", Political Studies 40 (1992). Cohen, J., "Review of Walzer's Spheres of Justice", Journal of Philosophy 83 (1986). Conference on Security and Cooperation in Europe - CSCE, Declaration on the Rights of National Minorities, 1991. Council of Europe, Explanatory Report Regarding Framework Convention for the Protection of National Minorities (ETS No. 157), 1995. Council of Europe, Framework Convention on National Minorities (ETS 157), 1995. Council of Europe Parliamentary Assembly, Recommendation 1201 on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights, 1993. Daes, E.-L, Indigenous Peoples and Their Relationship to Land, Final Working Paper. UN document E/CN.4/Sub.2/2000/25. Dworkin, R., "Liberalism", Public and Private Morality, ed. S. Hampshire, Cambridge University Press, 1978. Eide, A., "Legal and Normative Bases for Saami Claims to Land in the Nordic Countries", Sami Claims to Land and Water - Special Issue, International Journal on Minority and Group Rights 8 (2001). F0llesdal, A., "Minority Rights. A Liberal Contractualist Case", Do We Need Minority Rights? Conceptual Issues, ed. J. Raikka, Kluwer Academic Publisher/Kluwer Law International, 1996. F0llesdal, A., "Communitarian Criticisms of Liberal Contractualism. An Account and a Defense", Memory, History and Critique. European Identity at the Millennium, ed. F. Brinkhuis and S. Talmor, ARENA Reprint 98/11, 10, MIT, 1998. F0llesdal, A., "The Future Soul of Europe. Nationalism or Just Patriotism? On David Miller's Defence of Nationality", Journal of Peace Research 37 (2000). F0llesdal, A., "Indigenous Minorities and the Shadow of Injustice Past", International Journal on Minority and Group Rights 7 (2001). F0llesdal, A., "Sami Claims to Land and Water - Special Issue", International Journal on Minority and Group Rights 8 (2001). Goodin, R.E., Waitangi Tales (Unpublished Conference Paper at Conference on Indigenous Rights), Political Theory and the Reshaping of Institutions, 1997. Gutmann, A., "Communitarian Critics of Liberalism", Philosophy and Public Affairs 14,1985. Kymlicka, W., Liberalism, Community and Culture, Clarendon Press, 1989. Kymlicka, W., Multicultural Citizenship. A Liberal Theory of Minority Rights, Oxford University Press, 1995.

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Kymlicka, W., H. Lax, E. Mendes, G. Raichle, B. Rhodd, Lord Russell-Johnston, E. Sandor, J. Spinner, and A. Viljoen, The Rights of Minorities. A Declaration of Liberal Democratic Principles Concerning Ethnocultural and National Minorities and Indigenous Peoples. Liberales Institut der Friedrich-Naumann-Stiftung, 2000. Kymlicka, W., Politics in the Vernacular, Oxford University Press, 2001. Lyons, D., "The New Indian Claims and the Original Rights to Land", Social Theory and Practice 4 (1977). Margalit, A., and J. Raz, "National Self-determination", Journal of Philosophy 87 (1990). Meyer, L.H., "Cosmopolitan Communities", International Justice, ed. A. Coates, Aldershot and Brookfield, 2000. Meyer, L.H., "Transnational Autonomy. Responding to Historical Injustice in the Case of the Saami and Roma Peoples", Sami Claims to Land and Water - Special Issue, International Journal on Minority and Group Rights 8 (2001). Miller, D., "Nationality. Some Replies", Journal of Applied Philosophy 14, 1 (1997). Minde, H., "Sami Land Rights in Norway. A Test Case for Indigenous Peoples", Sami Claims to Land and Water - Special Issue, International Journal on Minority and Group Rights 8 (2001). Mulhall, S., "Liberalism, Morality and Rationality. Maclntyre, Rawls and Cavell", After Maclntyre. Critical Perspectives on the Work of Alasdair Maclntyre, ed. J. Horton and S. Mendus, Polity, 1994. Mulhall, S., and A. Swift, Liberals and Communitarians, Blackwell, 1996 (revised version). Murphy, M.C., "Acceptance of Authority and the Duty to Comply with Just Institutions. A Comment on Waldron", Philosophy and Public Affairs 23, 1994. Offe, C. and U. Poppe, "Transitional Justice in the German Democratic Republic and in Unified Germany", this volume. Rawls, J., A Theory of Justice, Oxford University Press, 1971. Rawls, J., 'The Idea of an Overlapping Consensus", Oxford Journal of Legal Studies 1 (1987). Rousseau, J.-J., On the Social Contract, book 1-4, 1762. Scanion, T.M., "Rights, Goals and Fairness", Public and Private Morality, ed. S. Hampshire, Cambridge University Press, 1978. Scanion, T.M., Contractualism and Utilitarianism, 1982. Scanion, T.M., What We Owe to Each Other, Harvard University Press, 1998. Sher, G., "Ancient Wrongs and Modern Rights", this volume. United Nations Subcommission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. /CN.4/Sub.2/1986/7&Add. 4, 1986. Vitoria, F. do, De Indis Et De Ivre Belli Relectiones, J. Bate, Transl., Classics of International Law, Carnegie Institution of Washington, 1917 [1557]. Waldron, J., "Theoretical Foundations of Liberalism", Philosophical Quarterly 37 (1987). Waldron, J., "Superseding Historic Injustice", Ethics 103 (1992). Waldron, J., "Redressing Historic Injustice", this volume.

355

Historical Emissions and Free-riding

Axel Gosseries1

Contents Introduction

355

1.

Philosophical Challenges to the Brazilian Proposal

358

1.1

The Ignorance Argument

359

1.2

Non-contemporaneity and Powerlessness

361

2.

Transgenerational Free-riders and their Obligations

363

2.1

What Is Transgenerational Free-riding?

363

2.2

Nozick's Challenge

368

3.

Two Views on Free-riding

372

3.1

A Fresh Look at the "No Net Cost" Requirement

372

3.2

Another Look at the Proportionality Requirement

376

4.

Towards Possible Extensions

377

Conclusion

380

Introduction Global warming is a matter of concern for most of us. There are still plenty of uncertainties involved. Some people will no doubt benefit from it. Many others will certainly suffer heavy losses as a result of it. A problem of this nature raises various important normative questions, and most notably, issues of justice. For example, at which level should the global emission reduction target be set? Answering this question, which does not merely touch upon the issue of efficiency, clearly involves taking into account both intra- and inter-generational justice issues.2 Moreover, how should the reduction effort be shared among the States involved? Should it be done through the allocation of tradable or non-tradable emission quotas? And along which lines should such quotas be I am indebted to P. Bou-Habib, L. de Briey, G. Cullity, G. Demuijnck, C. Fabre, C. Kutz, A. Leseur, L. Meyer, E. Schokkaert, A. Shevtchenko, P. Singer, P. Vallentyne, T. Vandevelde, Ph. Van Parijs, J.-P. Van Ypersele, A. Williams and C. Wolf for insightful comments and suggestions. The ideas defended in this paper were presented at the CORE (University catholique de Louvain, B., Oct. 7, 2002) and at the ENSAR (Rennes, Fr., Feb. 10, 2003) and at the Faculty of Economics (KULeuven, May 28,2003). Many thanks to these audiences. Contra: E. Schokkaert and J. Eyckmans, "Greenhouse Negotiations and the Mirage of Partial Justice", 210f (notion of allocational efficiency).

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356 Axel Gosseries

allocated? The present paper is devoted to one of these questions: how relevant should historical emissions be made in the context of allocating emission reduction obligations between countries? We refer to historical emissions as emissions of pollutants that took place in the past, as a result of the activities of previous generations. Some claim that those who have polluted more in the past should be granted extra entitlements through some form of "grandfathering". Political feasibility arguments, or even the ethically justifiable need to pay minimal respect to people's legitimate expectations, may justify some temporary reliance on grandfathering in domestic systems where emission permits are being allocated between already established firms, or even at the international level. Defending grandfathering further than this seems far less easy. One may e.g. be tempted by the following "exit" strategy: as long as products from historically polluting firms or countries are widely available, what would be wrong with privileging such firms and countries through granting them extra allowances, as long as their hence "privileged" products could be bought by any consumers, anywhere in the world? One problem with this view is that while shifting from one product to another may be costless for a consumer (under some circumstances as well), as workers or citizens, the same people might not have the same exit options. And it is unlikely that differentiated emission quotas will see their associated costs passed merely onto end consumers. Workers (in firms) and citizens (in countries) will also be (unequally) affected by them, without benefitting from equally costless exit options. Conversely, others claim that rather than leading to extra entitlements, historical emissions should in fact give rise to extra obligations on the descendants of those who polluted in the past. It is on this latter claim that we shall focus in the present paper. In the debates related to climate change, voices have been heard claiming that this should indeed be the case. Hence, the 1991 Beijing Ministerial Declaration on Environment and Development states: Ever since the Industrial Revolution, the developed countries have over-exploited the world's natural resources through unsustainable patterns of production and consumption, causing damage to the global environment, to the detriment of the developing countries. Responsibility for the emissions of greenhouse gases should be viewed both in historical and cumulative terms, and in terms of current emissions. On the basis of the concept of equity, those developed countries who have contaminated most must contribute more.3 In fact, it is probably the 1997 so-called "Brazilian proposal" submitted by Brazil in

the context of the Kyoto negotiations that has become the most emblematic illustration of this view.4 The Brazilian delegation proposed a methodology to calculate the induced temperature changes of current and past CO2 emissions. It submitted estimations going back to 1840 of the historical emissions of various countries involved and called for the inclusion of cumulative historical emissions in the definition of the current targets of the Parties. The Brazilian proposal will thus be taken here as a departure point, as it links each country's responsibilities in the anthropogenic part of climate change to their current and earlier emissions. In other words, it enables us in practice to adopt a burden sharing scheme sensitive to historical emissions dating back to 1840. We shall not

question however the accuracy of the method used to estimate the amount of historical emissions and their current impacts.5 For the argument's sake, a few assumptions and simplifications are in order. First, at this point we limit ourselves to two generations of US people and of Bangladeshi people, a current generation and an early 20th century one - we shall later leave aside one of these Bangladeshi generations, and we shall also introduce the EU as an actor further on.6 Both current US and current Bangladeshi people had no means of influencing whatever took place in the early-20th century as they did not exist at that time, either biologically (they were not born) or politically (they did not yet have the right to vote). We are thus dealing with non-overlapping generations. Second, let us take it for granted that no uncertainties are involved and let us limit ourselves to past CO2 emissions. Thus, we exclude other greenhouse gases (such as methane, nitrous oxide, sulphur hexafluoride) and we also don't consider current emissions, assuming for the argument's sake that the current generation found a way of not emitting any CO2 into the atmosphere anymore. Third, we leave aside the past Bangladeshi generation. We do so for two reasons. On the one hand, early 20th century Bangladeshi emissions can be regarded as relatively negligible, and we shall thus do here as if they did not take place. On the other hand, - and more importantly - due to the residence time of greenhouse gases - and singularly of CO2 - in the atmosphere,7 past emissions can be expected to have a direct negative impact on current Bangladeshi people's physical environment, e.g. through flood. In standard historical injustice issues involving two generations and two communities, the current generation of the victim community is typically suffering harm as a result of the harms suffered by her own ancestors (e.g. current consequences of past slavery). In such cases, the connection between the past harmful action and the harm suffered by the current victim generation is thus a merely indirect one. Here, in contrast, the relatively long lifetime of chemical particles allows for a direct causal relationship between an act of the past US generation and a harm suffered by the present Bangladeshi one. This does not necessarily imply that CO2 emissions may not have any immediate effects upon the contemporaries of the polluting generation as well (here: the past Bangladeshi generation).8 It only means that as a significant part of the effects of past emissions will apply directly to members of the current generation, immediate effects on the past generation (here: of bangladeshi people) can be left aside for the sake of our argument. Fourth, we assume that past CO2 from the US community generates net benefits to the current US generation and net costs to the current Bangladeshi one. In other words, we consider that technological developments or the production of durable goods (e.g. buildings, roads, bridges) made possible through such pollution far outweigh the negative impacts on the US population that global warming may have today. Conversely, we take it to be realistic that despite 5

6

3 4

Cited in ibid., 205. Proposed Elements of a Protocol to the United Nations Framework Convention on Climate Change, Presented by Brazil in Response to the Berlin Mandate (submission dated May 1997), FCCC/AGBM/1997/MISC. l/Add.3.

7

8

For a detailed examination of the Brazilian proposal's methodology: M. den Elzen et al., The Brazilian Proposal and Other Options for International Burden Sharing. For figures on historical emissions: P. Hayes and K. Smith, The Global Greenhouse Regime; T. Banuri et al., "Equity and Social Consideration", 94; E. Schokkaert and J. Eyckmans, "Greenhouse Negotiations and the Mirage of Partial Justice", 197. We take the US merely because they currently have the highest level of emissions per capita and because they don't seem to be willing to ratify the Kyoto protocol. One should not see however in such a choice any anti-Americanism. For figures on such atmospheric lifetime: J. Houghton et al., Climate Change 2001, 38/244 (ex: COj: up to 200 years, nitrous oxide: 114 years, sulphur hexafluoride: 3200 years). For further developments on the philosophical relevance of residence time and delayed effect: infra sect 4. It v/ill depend on the stock of greenhouse gases already present in the atmosphere.

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some possible positive spill-over effects (e.g. through technology transfers or through an effect of the US economy on global growth), the impact of past US emissions on Bangladesh will be largely detrimental. Current US (net beneficiaries of past US emissions)

Current Bangladeshi (net victims of past US emissions)

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this could mean that whatever our past CO2 emissions, they may remain morally unobjectionable forever. Third, others still might claim that since it is only recently that we know about the harmful impact of CO2 emissions, people should not be held responsible for the harmful consequences of emissions that took place in such times of ignorance. Fourth, it can also be argued that even if our ancestors had known about the harmful consequences of their emissions, there is no reason why we should compensate the current victims of our ancestors' actions, which brings us back to the moral individualistic assumption. We shall assume that adequate answers can be provided to the first two challenges, i.e. the "collective responsibility" and the "non-identity" challenges.9 Let us thus concentrate on the two latter challenges - the "ignorance" and the "non-contemporaneity" ones - that both affect more specifically the Brazilian proposal. The former is primarily a challenge to the responsibility of earlier generations whereas the latter is a direct challenge to our own generation's responsibility.

Table 1: The simplified model. The bold line refers to the absence of generational overlap. The question we are then asking is: should today's US citizens not pay some compensation to current Bangladeshi people, and if they do, how much and on which grounds? The paper will begin by addressing two serious challenges to the possibility of moral obligations falling upon current US people due to the harms caused by their ancestors' CO2 emissions (section 1). We then defend the view that the notion of transgenerational free-riding can justify conferring on current Americans a moral obligation to compensate current Bangladeshis, even though the former are not morally responsible for their ancestors' actions (section 2). In so doing, we address Nozick's challenge to the suitability of using such a notion within a theory of justice. Moreover, we offer an account of two very different interpretations underlying a reference to such a notion of free-riding and analyse their implications for the obligations of current Americans towards current Bangladeshi people (section 3). The last section of the paper is then devoted to other possible applications of the notion of moral free-riding, beyond the case of historical CO2 emissions (section 4). 1. Philosophical Challenges to the Brazilian Proposal Significant challenges can be raised against the view implied in the Brazilian proposal regarding a State's responsibility for historical emissions. First, some might be tempted to doubt whether the idea of collective responsibility is compatible with moral individualism, that is, with the view that individuals, as opposed to e.g. communities, are the focus of moral concern. For example, how could I be held morally responsible for the decisions of my generation, if I have been unsuccessfully opposing them since the beginning? Second, others might want to deploy the non-identity argument according to which, whenever alternative courses of action entail the existence of different people, the consequences of such actions would fall outside the scope of a standard concept of harm. The latter presupposes the possibility of comparing an actual and a counterfactual state of the same person, resulting respectively from the given action or its absence. Such comparison is made impossible in a non-identity context. It could be shown that the actions giving rise to CO2 emissions generally fall within the scope of the non-identity problem. As a result, we may be unable to assess such activities and their alternatives on the basis of a standard concept of harm. For those willing to stick to the latter,

1.I The Ignorance Argument The ignorance challenge is frequently being raised in the climate change debate.1 To address it, let us imagine our world composed of only two States (the US and Bangladesh), each State being only populated with a single person whose life extends over the whole existence of her State. Let us assume that the US person has been emitting CO2 for ages, which negatively affects her own, as well as the Bangladeshi environment, although much more significantly for the latter. The ignorance challenge asks us to address the following question: As the US person, do I have to compensate my Bangladeshi neighbour for any harms flowing from GHGs emissions that took place while I was unaware of their adverse consequences? A first possible answer would imply the following principle: The Ignorance Exemption (IEX)\ A person should not be held morally responsible for the harmful consequences of her own act if they were unknown to her and could not reasonably have been known at the time the action took place. 9

10

On collective responsibility: C. Kutz, Complicity. On the non-identity argument: D. Parfit, Reasons and Persons; A. Gosseries, "Intergenerational Justice" (discussing various avenues, including the notion of "complete life obligations"). For a specific discussion on the non-identity argument's relevance to the current issue, see below sect. 3. M. Grubb, "Seeking Fair Weather", 491 ("Historical responsibility as an equity principle has strong support in the literature and politically in developing countries, but there are also valid counter-arguments. These include (1) ignorance of past generations about the consequences of their actions [...]"); P. Ghosh, Structuring the Equity Issue in Climate Change, 272 (countering Grubb's view); E. Schokkaert and J. Eyckmans, "Greenhouse Negotiations and the Mirage of Partial Justice", 206 ("A few decades ago, nobody was aware of the negative environmental consequences for the environment of emitting CO2, and it seems difficult to blame economic agents in the developed countries for the decisions they have taken in this situation of ignorance"); A. Torvanger and O. Godal, A Survey of Differentiation Methods for National Greenhouse Gas Reduction Targets, 8 ("Responsibility of the present generation for past emissions when global warming was unknown, is a disputable principle"); P. Singer, One World, 34 ("Although, even here, one could argue that ignorance is no excuse and a stricter standard of liability should prevail, especially since the developed nations reaped the benefits of their early industrializations"). Notice, regarding the latter quote, that we do not advocate the adoption of a stricter standard of responsibility (such as no-fault liability). Instead, we call for a shift towards a free-riding approach clearly distinct from the former, or at least from a notion of causal responsibility/liability - this being true despite the fact that some causation aspect is involved.

360 Axel Gosseries Historical Emissions and Free-riding

Notice the way ignorance operates in this IEX proviso. If I knew by chance about the harmful consequences of my action, even if I should not have known, then IEX does not exempt me from being held responsible for my act's consequence. Conversely, it is not enough just to claim that I did not know about such harmful consequences for the rule to apply. What also matters morally is whether or not I should have known. Of course, a lay person should not be expected to spend all her time assessing even the most remote consequences of all her actions. On the other hand, high standards are being imposed on those involved in producing e.g. drugs or pesticides. Such high testing standards are generally not regarded as ethically indefensible, all to the contrary, and no matter what epistemological difficulties they may raise. Similarly, States may be expected to assess the impact of their decisions to a larger extent than individual citizens. It is therefore plausible to claim that a gap may exist between what we actually know and what we should have known and that such a gap may vary, depending on the type of actor and sector of activity. This means that simply answering "we did not know" is not enough. Let us then assume that f* stands for the moment from which either one came to know or one should have found out about the harmful consequences of CO2 emissions. Which date should we then put on /* in the case of the greenhouse gases, and singularly of CO2. The Brazilian proposal takes 1840 as a starting point. Others may assume instead that, while 1840 is a too early date, Svante Arrhenius' 1896 article "On the Influence of Carbonic Acid in the Air Upon the Temperature of the Ground" should have attracted more attention than it did among the public.11 Still others may object that we should wait for the first serious modelling exercises on the matter, as they appear in a 1967 article by Manabe and Wetherald who use a one-dimensional (vertical) model.12 The publication of the Intergovernmental Panel on Climate Change (IPCC)'s first report has also been proposed by at least one author as a starting date.13 Or perhaps, we should not even expect people to be held liable for the harmful consequences of CO2 emissions before 1995 when the scientists meeting in the IPCC context published their second report.14 It is only then that they unanimously considered that anthropic CO2 emissions do impact on the world's climate, which still did not cancel all remaining uncertainties as to the extent of such an impact. There are thus several candidates: 1840, 1896, 1967, 1990 or 1995.15 It is beyond the scope of this paper to mobilise the necessary elements from the history of Earth sciences, the history of computer sciences, epistemology and the ethics of knowledge to propose a plausible time location for /*. This does not mean however that no meaningful position can be defended on this issue. Complexity does not necessarily entail impossibility. At the very least, it seems implausible to consider 1840 as the h point, as in the Brazilian proposal. On the other hand, adopting a date such as 1995 while endorsing the 11

See S. Arrhenius, "On the Influence of Carbonic Acid in the Air Upon the Temperature of the Ground"; E. Crawford, Arrhenius.

12

See S. Manabe and R. Wetherald, 'Thermal Equilibrium of the Atmosphere With a Given Distribution of Relative Humidity". See as well S. Manabe and R. Wetherald, 'The Effects of Doubling CO2 Concentration on the Climate of a General Circulation Model". Houghton et al.. Scientific Assessment of Climate Change. See P. Singer, One World, 34. Houghton et al., Climate Change 2001. In the case of ozone depletion, a possible date is 1985 with the publication of Joseph Farman and its colleagues from the British Antarctic Survey (J. Farman et al., "Large Losses of Total Ozone in Antarctica Reveals Seasonally CIOx/NOx Interaction"), although the earlier date of 1974 when the phenomenon had been predicted by Molina and Rowland (M. Molina and F. Rowland, "Stratospheric Sink for Chlorofluoromethanes" could also be used. See as well: www.nas.nasa.gov/About/ Education/Ozone/history.html.

13 14 15

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ignorance exemption as defined above would reduce to nearly nothing the practical importance of the historical emissions argument - which is not of course a sufficient argument against taking 1995 as an appropriate date. Depending on the value assigned to tk, the ignorance exemption may thus have more or less significant implications for the problem at stake. Instead of discussing this point in detail, we may adopt two alternative strategies to address the ignorance challenge. Both rely on the view that ignorance should not have the final word. The radical strategy denies that ignorance be at all relevant to our duty to compensate for our actions' consequences. If I damage your property, no matter whether I knew or should reasonably have known about such harm, no matter whether I derived benefits or not from such harms, the mere fact that this harmful action would be physically mine makes me liable for full compensation of its harmful consequences. This is perhaps justifiable for those engaging in very risky activities. It is hard however to see how such no-fault liability can be defended as a general view. If it is on mere distributive grounds, then at least it cannot justify fall compensation in all cases. For, in many circumstances, the benefits derived from it by the risk-taker will not be as great as the harms caused to third parties. In contrast, I shall adopt a moderate strategy here. It accepts the intuition underlying the ignorance challenge while relying on the existence of benefits on the harmdoer or third parties' side to justify on such a basis an obligation to compensate. From this perspective, the proviso can be modified in a way that makes it relatively immune to the ignorance objection. Here is such a modified version: The Modified Ignorance Exemption (MIEX): A person should not be held morally responsible for the harmful consequences of her own act if they were unknown to her and could not reasonably have been known at the time the action took place. However, she may still be held liable for compensation for such harmful consequences on others if and only if, once the latter were or should have been brought to light (tk), she still enjoyed correlative benefits.

Let us illustrate this with an example. Roberto bought a new house. A few months later, he discovers under a carpet a set of notes of 100 Euro and decides to use them to acquire something that he would not have bought otherwise. He goes to Alexandra's wine shop and buys 50 bottles of very good Portuguese Alentejano wine. Over the following year, he drinks 10 bottles with his family and friends. He decides to keep the other 40 bottles for later. Alexandra only brings her cash once a year to the Bank as most of her clients pay with credit cards. It is only then that she discovers that Roberto's notes were fake. Neither Roberto, nor Alexandra were morally (and legally) expected to use fake notes detectors, and none of them actually knew that the notes were fake. Neither of them was thus at fault at the moment Roberto bought the 50 bottles. While Roberto thus turned out not to have actually paid Alexandra, this is not to be regarded as a wrong. For he did not have to know that the notes were fake. Nor does the fact that we now found out about it make his past behaviour retroactively wrong. How should a theory of justice deal with such a case then? Consider the following twofold approach. On the one hand, regarding the 10 bottles that have already been consumed, we could argue that this is brute bad luck for Alexandra and that there is no reason why she should bear the costs alone. Roberto should probably pay Alexandra the value of five bottles, at least if this corresponds with an equal apportionment of harms and benefits between them two. Asking Roberto to pay the value of 10 bottles would however be too much as this would shift the burden of brute bad luck fully on him, considering the fact that if he had not found this money, he would not have bought such bottles. On the other hand, we have the 40 other bottles left and, there does not seem to

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be any good reason - assuming that the distributive background is fair - why Roberto should not either give them back to Alexandra, or pay their full price with real notes. Even for those who do not agree with the brute bad luck view regarding the 10 consumed bottles, such a treatment of the 40 other bottles might still be acceptable. And this is what the Modified Ignorance Exemption (MIEX) is about. Of course, there is something peculiar here. Roberto's initial action will remain morally unobjectionable forever, even after we discover that the money he used was fake. Still, we would consider it wrong for Roberto to leave things as they are once this was discovered. His present obligation to restitute the 40 bottles (or their equivalent) is thus not to be derived from the fact that he did wrong Alexandra. For he did not. 1.2 Non-contemporaneity and Powerlessness "Australians of this generation should not be required to accept guilt and blame for past actions and policies over which they had no control."16 Let us now address a second challenge to the Brazilian proposal, a challenge that could still stand, even if the ignorance challenge were not to hold anymore. We have assumed so far in our hypothetical example that there were only two States, each being populated with only one inhabitant, each inhabitant having a life as long as her State's existence. Let us now relax the latter assumption and imagine that across each State's history, there have been two inhabitants, the current one and his ancestor. They were never contemporaries, the ancestor having died on the current inhabitant's very birthday. We thus assume the absence of generational overlap, which is realistic beyond one or two generations ahead and backwards. The current US citizen is then being asked to compensate the current Bangladeshi for harms caused to him by the US ancestor. The current US citizen may however deny being bound to any compensation on the basis of the following principle: The Powerlessness Exemption (PEX): A person should not be held morally responsible for the harmful consequences of someone else's act if she was (physically) unable to do anything against such an act. For a moral individualist, it is persons (as opposed to communities) who are the core units of ethical concern. And it is also each person who is responsible for the consequences of her own acts, unless it can be shown that she acted under someone else's or Nature's constraint. Moral theories, at least individualistic ones, generally do not consider that a person may be held responsible for the consequences of someone else's action. Admittedly, legal systems contain exceptions regarding the legal responsibility of a parent for his child's action or of an employer for some of her employee's activities. While a child (or a pet) cannot be regarded as a fully competent moral agent, the employee can be regarded as such. In both cases however, what matters is the authority, the subordination relationship in which they find themselves, either due to social rules (parental role) or to contract (employment relationship). This authority involves the right to exercise a certain power, which presupposes that such exercise be physically possible. Both the parent and the employer can thus be held legally (and morally) responsible for

the consequences of some of their children or employee's action because we assume that they are physically able and morally entitled to stop the latter from acting in certain (harmful) ways. Responsibility then simply rests on the presumption of some indirect causation at stake, i.e. an unacceptable lack of attention or abstention on the employer's or the parent's side, indirectly causing the accident. Such authority-based relationship does not obtain in our intergenerational case however, for in the absence of generational overlap, the current generation lacks the physical power to prevent the earlier generation from acting in certain ways. In such circumstances, moral individualists are unable to consider that a current US person should bear any responsibility regarding the consequences of the earlier's US inhabitant's action. While the ignorance challenge relies on a cognitive barrier to responsibility for one's own action, the "non-contemporaneity" challenge refers to the existence of a physical barrier to responsibility for other's actions. One possible way out would consist in adopting a holistic/collectivist approach, i.e. consider that collective responsibility may apply not only among contemporaries, but also between non-contemporaries. This would certainly require that moral individualism be abandoned. It is a move we want to resist here, however, for we want to show that even within the boundaries of moral individualism, some morally legitimate and significant demands can be made upon the descendants of past polluters. Notice by the way that such a shift to moral collectivism would not ease at all our task regarding the ignorance challenge. It would only help dealing with the "non-contemporaneity" challenge. Hence, it is possible to remain within the ambit of moral individualism while still justifying some degree of compensation, as the following modification of our proviso suggests: The Modified Powerlessness Exemption (MPEX): A person should not be held morally responsible for the harmful consequences of someone else's act if she was (physically) unable to do anything against such an act. However, she may still be held liable for compensation for such harmful consequences on others if and only if, once the latter were or should have been brought to light (tk), she still enjoyed correlative benefits The move from PEX to MPEX is identical to the one from E X to MIEX. In each case, we concede that holders of the ignorance and of the non-contemporaneity (or powerlessness) challenge may well be using the right premiss regarding moral responsibility for the consequences of an action. We believe however that it does not follow that no compensation be due for the harms resulting from actions falling within the ambit of IEX or PEX. From this perspective, the absence of moral responsibility in such circumstances implies e.g. that sincere apologies for someone else's harmful deeds do not make sense.17 Still, there remains room for moral accountability without such moral responsibility, by using a properly extended moral notion of free-riding. This is what we shall now explore.

17 16

J. Howard, Australian Prime Minister, in the context of aboriginal claims, in J. Thompson, Historical Obligations, 2 (our italics). Compare with Kutz's control principle (Complicity, 116).

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Compare J. Thompson, "Historical Injustice and Reparation", 135. In this respect, it is worth stressing that there is a difference between recognising that an injustice took place, which can be done by anybody, and apologising for such an injustice, which - for moral individualists - only makes sense if it is done by the very person who is morally responsible for this injustice.

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Transgene rational Free-riders and their Obligations What Is Transgenerational Free-riding?

The proposed modifications to the IEX and PEX provisos rest on a concept of moral free-riding. Let us thus begin with a definition. Gauthier is a good place to start for he defines free-riding in a relatively broad way and contrasts it with what he calls parasitism. He writes: "A free-rider obtains a benefit without paying all or part of its cost. A parasite in obtaining a benefit displaces all or part of the cost on to some other person. [...]. The shipowners whose vessels take navigational advantage of a lighthouse although they have contributed neither to its erection nor to its maintenance are free-riders. Although they do not displace the costs on to others, they do gain without paying any of the costs required to provide the gain. The factory owner who disposes of her gaseous wastes by polluting the atmosphere without compensating those who suffer the pollution she causes is a parasite, displacing part of the costs of her activities on to others".18 When does free-riding occur under such a definition? Let us assume that action x produces both benefits and harms. If action x is mine and some of the harms related to it are imposed on other people, I am a parasite, no matter whether the harms falling on me are greater than the benefits I have derived from this action. In contrast, if action x is not mine while still being beneficial to me, I will be regarded as a free-rider to the extent that I did not participate in the associated costs incurred by the author or third parties. While parasitism requires an action, free-riding does not, at least not beyond the one of accepting the relevant benefits. Free-riding thus occurs when (1) another person's action (2) benefits me (3) while the costs involved in it are being more than proportionately covered by other people (i.e. the author and/or third parties). Notice that the person that I am free-riding upon does not need to be a parasite herself. Once you benefit without paying anything from a positive externality made possible through costs to others, you are a free-rider. Once your action imposes costs on others while bringing benefits to yourself, you are a parasite. We shall now extend this notion of free-riding to the transgenerational context. Three steps are required. First, let us imagine a world with three island communities: the US community, the European Union and Bangladesh. We assume that there is extensive trade between the US and the EU while trade barriers prevent any economic exchanges between the two former countries and Bangladesh. Moreover, we take for granted contrary to fact - that the US has a heavily polluting industry while the EU would in fact not emit any CO2 into the atmosphere. Here is a possible analysis of such a situation. The US can be regarded as a parasite on Bangladesh as it is clearly inflicting costs on the latter as a result of greenhouse effects induced by CO2 emissions to which Bangladesh - due among other things to its low altitude, is especially vulnerable. The EU is clearly not a parasite on Bangladesh, as we have specified that they have no economic or climatic interaction with each other.19 Nor is the EU a parasite on the US since - on 18 19

D. Gauthier, Morals by Agreement, 96; compare this with an economist's concept of free-riding: H. Tulkens, "Cooperation vs. Free Riding in International Environmental Affairs. Two Approaches". Such a view could be challenged as follows: as soon as we would enter into a commercial relationship with another actor, the acts of the latter would de facto become joint actions of the two partners, in which case the EU would be a parasite as much as the US is one. This would however imply that a separation between actions and abstentions (admittedly a problematic distinction from a normative point of view) should be abandoned and that free-riding and parasitism should actually

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the economic side - there are no special reasons to believe that their transactions would not be fair and since - ex hypothesi - the EU does not emit CO2. The latter does not need to be a free-rider on the US either. Admittedly, it may well be importing products that require heavy CO2 emissions at the production stage. However, the US could very well include in the price of these products the costs incurred by them as a result of such production processes. We can thus assume that the EU actually does not free ride upon the US, because all the climatic costs falling on the US and related to benefits that would accrue to the EU, are - ex hypothesi - proportionately assumed by the EU. Moreover, the US could be a parasite on the EU, since the CO2 emitted to produce goods that she does not export to the EU may well have a negative impact on the EU's climate. However, we assume that the EU receives some financial compensations for this. We can thus move to the most important point. Without being in any way a parasite or a free-rider on the US, the EU could still be a free-rider on Bangladesh. And this is actually the case in our example. For the EU is importing (hence, benefiting from) US products that required carbon-intensive modes of production. This means the emission of massive amounts of CO2 into the atmosphere. As CO2 is a uniformly mixed pollutant, this affects not only the US and the EU atmosphere, but also the Bangladeshi one. For the latter however, there are no associated benefits. The US may thus be regarded as a parasite on Bangladesh. This does not stop the EU from being a free-rider on Bangladesh as well. Time has come for the second step. Here is another hypothetical world, the post-catastrophe world. It shares all the features of the former world, but one: all in a sudden, due to a totally unexpected phenomenon, the US island gets completely flooded. The whole population dies instantaneously. One day after the flood, the EU receives new US products that had been sent before the flood. Does the flood affect the EU's status towards Bangladesh? The view here is that it remains as much a free-rider as it would have been in the unfortunate flood's absence. If Bangladesh had been entitled to claim some compensation to the EU in the absence of such flood, there is not reason why it should not still be the case. In this post-flood world, the EU thus remains a free-rider, even in the absence of the associated parasite. More precisely, the extension of the free-riding concept defended here implies the identification of situations involving cost bearers who are not themselves the benefit generators, contrary to what happens in the typical lighthouse case above. In other words, it implies that situations where costs are not all self-inflicted could still fall under the scope of a free-riding concept. A shift is thus required from a bilateral to a tripartite relationship. Some may understand such a triangular situation as one where the cost bearer could only tum to the parasite. It would then be up to the parasite in turn to ask the free-rider to compensate the costs weighing both on her and on the (other) cost bearer. In our example, Bangladesh would then not be entitled to turn directly to the EU in order to ask for compensation on free-riding grounds. Admittedly, such a triangular moral relationship only arises because of the causal impact of the parasite's action on the situation of the other two other parties. However, this does not entail that moral claims should necessarily pass through the parasite. If the parasite could not be bypassed, two consequences would follow for Bangladesh in our post-flood world. First, Bangladesh would have no direct claim against the EU now, since it never had any. Second, it would have no claim against the US either, since the latter would now have vanished. Admittedly, the harshness of such a situation for Bangladesh does not be treated as equivalent.

366 Axel Gosseries

constitute per se an argument against denying the latter a direct claim on the EU. However, it is equally unclear which intuition can justify the view according to which claims from Bangladesh against the EÜ should transit through the US. At least a notion such as "contractual relativity" that could be used in a contract law system to justify analogous views cannot hold here. Hence, it is reasonable to believe that once the US has vanished, the EU can still be regarded as free-riding on Bangladesh. Let us then move to the third step. This time, we have a world similar to the first one, with no flood. However, two of the three communities involved share the same island, and they do so successively, with no overlap. Compared with the previous hypothetical world, Bangladesh becomes the current generation of Bangladeshi, the US becomes the old generation of US people, and the EU becomes the current generation of US people ("New US"). Thus, if we were ready to regard the post-flood EU as a free-rider in the former world, there is no reason why we should not regard the New US as a free-rider in the current imaginary world. Moreover, we can derive from the first imaginary world that the current US can perfectly free ride on Bangladesh without being in any way a free-rider or a parasite upon the previous US generation.20 Finally, it is worth coming back to the "direct claim" issue. Due to the ignorance problem (and for that reason only), the past US generation certainly harmed the current Bangladeshi people, - be it in a delayed manner -, but it did not wrong them (in the same way as Roberto did not wrong Alexandra through buying wine with fake notes). This is so at least if we assume that tk was not anterior to the moment of their death. If the past US generation never wronged Bangladesh (in our example), then it would not make sense to expect Bangladeshi people to turn to the past US generation if they believe that the current US people ("New US") are free-riding on them. This is why it matters to grant Bangladeshi people a direct claim against current US people. The claim according to which New US is free-riding on current Bangladeshi people is true in our hypothetical example. We claim that it is also true in the real world insofar as current US citizens still benefit from the consequences of emissions performed by their ancestors (as suggested by the systematic correlation between GNP and historical emissions), and to the extent that such past emissions still have harmful consequences on the other countries' current inhabitants, including Bangladeshi ones. We could also easily argue that, insofar as their current emissions are concerned, the current US generation is also a parasite on Bangladesh. Current US people are thus free-riders on Bangladesh for what historical emissions are concerned and parasites of Bangladesh for what their current emissions are concerned. Of course, in the real world, the same could also be said about any European country towards Bangladesh. Before moving further ahead, it is worth introducing a distinction between transgenerational and mtergenerational free-riding. The latter refers to a case of free-riding by one generation over another (set of) generation(s) of the same community. In contrast, transgenerational free-riding refers to a case of free-riding of one community's current generation over another community's current generation. It is transgenerational because benefits to the current free-rider community and harms to the other one are causally connected through an action (here: historical CO2 emissions) performed by an earlier generation of the currently free-riding community.

20

Thus, transgenerational free-riding does not presuppose intergenerational free-riding. On this distinction between transgenerational and intergenerational free-riding: see below.

Historical Emissions and Free-riding EU: No CO2 emissions, negative climatic impact of US emissions, benefits from imports of carbon-intensive US products and other spill-over effects

367

US: CO2 emissions, possible Bangladesh: No CO2 emisnegative climatic impact of sions, negative climatic imthese emissions, economic pact of US emissions, no benefits from any imports, benefits no economic spill-over effects Parasite on Bangladesh

Free-rider on Bangladesh Step 1: The three contemporary island communities EU: No CO2 emissions, negative climatic impact of US emissions, benefits from imports of carbon-intensive US products and other spill-over effects

Flooded US Island

Bangladesh: No CO2 emissions, negative clinuitic impact of US emissions, no benefits from any imports, no economic spill-over effects

Free-rider on Bangladesh Step 2: The post-flood world Current US: No CO2 emissions, negative climatic impact of US emissions, benefits from imports of carbon-intensive US products and other spill-over effects

Bangladesh: No CO2 emissions, negative clinuitic impact of US emissions, no benefits from any imports, no economic spill-over effects22

Free-rider on Bangladesh

"Flooded " US Generation

Step 3: The transgenerational equivalent Table 2: The three steps

We shall limit ourselves here to a closer examination of rransgenerational free-riding. Let us say however a few words about the potential importance of m/ergenerational free-riding. Theoretical discussions on justice between generations have devoted some attention to one view - the so-called "indirect reciprocity" view - according to which "we owe something to the next generation because we received something from the previous generation" as well as "we owe to the next generation at least as much as what we received from the previous one". Reciprocation is indirect since it is directed to a 21 22

This assumption is of course aimed at isolating historical emissions from current emissions. This assumption aims at mimicking the assumption made at the beginning of the paper according to which Bangladesh would be a net victim of the US's historical emissions.

368 Axel Gosseries (set of) person(s) different from the one who benefited me/us in the first place. This mode of justification and definition of our intergenerational obligations has been challenged.23 As Barry puts it, "if someone offers me a toffee apple, out of the blue, and I accept it, does my enjoyment of the toffee apple create even the tiniest obligation to distribute toffee apples to others?".24 As we shall see, this is exactly the core Nozickian challenge that moral theories of free-riding have to address. Were we able to do so successfully, it may follow that Barry's objection to the indirect reciprocity view could vanish as well.25 There may then be room for an account of the "indirect reciprocity" idea, based on a notion of intergenerational free-riding, roughly along the following lines. If the previous generations made efforts in order to transfer to the current one at least as much as what the former received from their own ancestors, it is clear that this entails costs on the previous generations and benefits for the current one. Were the current generation not to contribute at all to such costs, it would clearly be a free-rider on the previous generation (as well as upon all those that preceded). However, the tricky element is that the only valid way of compensating the previous generation(s) for the costs incurred consists in the current generation directing "compensation" towards the next generation.26 Hence, under such an interpretation of the indirect reciprocity view, not transferring "at least as much" to the next generation would amount to free-riding upon the previous generation(s).27 2.2 Nozick's Challenge

Historical Emissions and Free-riding 369 the call when it is your turn to do so? As it stands, surely not."29 Why not? Nozick suggests a first possibility: devoting a full day to this scheme may constitute a much larger sacrifice than what the benefits I enjoy as a result of the scheme are worth (1974: 93). If one believes this to be a sensible claim, one could simply add the following restriction to Gauthier's definition: Free-riding and the no net cost proviso: I am a morally objectionable free-rider if I obtain a benefit from an action or scheme without paying all or part of its cost, at least until the point where the costs participation imposes on me would start to outweigh the benefits I derive from it.30 In fact, Nozick does not merely imply that the costs should not outweigh the benefits (hereinafter: the "no net cost" requirement). He requires that "the benefits to a person from the action of the others [be] greater than the costs to him of doing his share".31 The absence of net costs would thus not be enough. Net benefits should still remain after one's share has been done. The reason why this should be so is obscure though. Nozick's view seems to be based on the incorporation of a notion of opportunity costs in the costs to be considered here.32 However, the mere requirement that costs do not outweigh the benefits is perfectly capable of taking this dimension into account. Why should we then require that once the beneficiary of the cooperation has done his share, there should still be some benefit left to him? While the absence of net costs may be a sound requirement, requiring the presence of net benefits seems much more difficult to justify. There is however an additional requirement suggested by Nozick's following remark:

"If a free-rider harms no one, what is it about her conduct that makes it unfair?"28 Should we deem that any free-rider defined as a person who "obtains a benefit without paying all or part of its cost" is behaving in a morally objectionable way? In other words, is Gauthier's definition sufficient to identify a moral concept of free-riding? Consider Nozick's following hypothetical public entertainment example: "Suppose some of the people of your neighbourhood (there are 364 other adults) have found a public address system and decide to institute a system of public entertainment. They post a list of names, one for each day, yours among them. On his assigned day [...] a person is to run the public address system, play records over it, give news bulletins, tell amusing stories he has heard, and so on. After 138 days on which each person has done his part, your day arrives. Are you obligated to take your turn? You have benefited from it, occasionally opening your window to listen, enjoying some music or chuckling at someone's funny story. The other people have put themselves out. But must you answer

23 24 25 26

27

28

For a detailed discussion: A. Gosseries, "What Do We Owe the Next Generation(s)?" B. Barry, Liberty and Justice, 232. For Barry's view on such a possibility: B. Barry, Liberty and Justice, 232f). For an argument as to why such compensation could not be directed towards the previous generation itself without forcing the latter to be a free-rider itself: A. Gosseries, "What Do We Owe the Next Generation(s) ?", 301 f. Notice that one reason why some may be sceptical about extending the notion of free-riding to the transgenerational case is that current Bangladeshi people certainly did not engage voluntarily in bearing the costs associated with the benefits of past US carbon-intensive production processes. Were this objection to hold, it would still be ineffective against extending the notion of free-riding in the intergenerational domain. For in the latter case, each previous generation clearly engaged voluntarily in bearing costs to the benefit of the next generation. G. Cullity, "Moral Free-riding", 22.

"The benefits might only barely be worth the costs to you of doing your share, yet others might benefit from this institution much more than you do; they all treasure listening to the public broadcasts. As the person least benefited by the practice, are you obligated to do an equal amount for it?"33 This can be a sensible objection as well. For one could indeed envisage a mutually beneficial scheme allocating costs equally and benefits unequally in a way that for each of us, the benefits would be at least worth the costs. Still, if someone else benefits much more than I do from the cooperative scheme, it may be legitimate on my part to decide not to contribute as much as she would be expected to do. Hence the following additional amendment to Gauthier's account of free-riding: 29

30 31 32

33

R. Nozick, Anarchy, State, and Utopia, 93. Notice that in Nozick's mind, this story was not directed at Gauthier. It was aimed at challenging the acceptability of the Hart-Rawls principle of fairness defined by Nozick as follows: "when a number of persons engage in a just, mutually advantageous, cooperative venture according to rules and thus restrain their liberty in ways necessary to yield advantages for all, those who have submitted to these restrictions have a right to similar acquiescence on the part of those who have benefited from their submission" (R. Nozick, Anarchy, State, and Utopia, 90). On free-riding in connection with the Hart-Rawls principle of fairness and Nozick's challenge: R. Arneson, "The Principle of Fairness and Free-rider Problems"; G. Cullity, "Moral Free-riding". This condition would certainly not be met in cases where "all things considered, I would be worse off getting the benefit and paying than if I did neither" (G. Cullity, "Moral Free-riding", 17). R. Nozick, Anarchy, State, and Utopia. Cullity similarly requires that "the practice of participation in the scheme is to represent a net benefit for me" (G. Cullity, "Moral Free-riding", 18). R. Nozick, Anarchy, State, and Utopia, 94. Positive opportunity costs occur each time the benefits derived from an alternative course of action would have been greater than the ones we currently derive from our actual course of action. Ibid., 94.

Historical Emissions and Free-riding

370 Axel Gosseries Free-riding and the proportionality requirement: I am a morally objectionable free-rider if I obtain a benefit from an action or scheme without paying all or part of its cost, at least until the point where the costs participation imposes on me would start to outweigh the benefits I derive from it, and in the same proportion as other people incur costs for the benefit they get from the scheme.

We have thus amended Gauthier's definition with two requirements, the "no net costs" and the proportionality requirements. Should we add the further requirement that benefits (and their associated costs in terms of participation) should have been voluntarily accepted?34 I do not think so. One may very well imagine a net beneficiary of the scheme, after deduction of his contribution, who simply did not feel like obtaining such benefits (and the associated costs), or did not feel like acting in order to forgo them. Such benefits were imposed on him. Not enjoying them may have required him to act. This is the case for example when not enjoying the benefits of my neighbour's wonderful garden would require me not to look out my window. But once we take into account the opportunity cost involved in not having access to my window, it may well be that if any additional contribution were asked from me by my neighbour to cover part of the costs involved in his gardening activities, the "no net cost" requirement would no longer be met. Three additional remarks are in order on this voluntariness requirement. First, in the case of fare evasion in public transport or cinemas, the requirement does not raise particular problems. Provided that the rules of the game have been suitably advertised, and meet the "no net cost" and the proportionality requirements, the idea of voluntary acceptance of benefits and associated costs can be inferred from a person's decision to enter the bus or the projection room. Things are different whenever there is real nonexcludability such that the people are not only incapable of excluding other people without prohibitive costs from the benefits they generate (positive externalities), 5 but also more importantly - incapable of excluding themselves, again without excessive costs, from the benefits generated by other people. In the latter case, the fact of enjoying the benefits of positive externalities could hardly be interpreted as implying a voluntary acceptance of such benefits and their associated costs. Pure cases of that sort are hard to find however. Take for example a country that would globally benefit from the impact of CO2 emissions, as such emissions would help increase the productivity of its cornfields. It is admittedly hard to prevent foreign CO2 particles from flying above one's territory. Still, if the extent of this increase in productivity attributable to an increase in CO2 concentration were quantifiable, it would not be hard for this country simply to

34

35

See also Arneson's revised principle of fairness including further requirements (R. Arneson, 'The Principle of Fairness and Free-rider Problems", 623) and Cullity's critique of such revision (G. Cullity, "Moral Free-riding", 12f) as well as his own proposal (G. Cullity, "Moral Free-riding", 14f, esp. 18f)- Cullity's extra requirements include the view that "the fair generalisation of the scheme's requirement must not make practically everyone worse o f f (which clearly overlaps with the "non net cost" requirement) and a "conscientious objector" requirement. G. Cullity, "Moral Free-riding", 3. Note that free-riding is classically being used in connection with public goods. While non-excludability is to be connected with the problem of "voluntary acceptance of benefits", non-rivalness is to be connected with the idea that in the case of rival goods, my enjoyment of benefits would necessarily harm other people (by diminishing their enjoyment of the same good), hence bring us on the parasitism side. On the notion of public goods: G. Cullity, "Moral Free-riding", 32f (suggesting that it is in fact a "family resemblance" concept, i.e. that the various definitions all refer to a given subset among seven features, without all sharing at least one of these features).

371

decide not to consume the relevant amount of corn, as a way of expressing its refusal of such benefits and their associated obligations. But even in pure non-excludability cases (or in cases where benefits are more diffuse and difficult to quantify such as with national defence systems), one does not see why voluntary acceptance should be needed as long as our two requirements are met. In fact, one may suspect that each time test cases are being provided to suggest the need for the vojuntariness requirement, they could in fact be satisfactorily dealt with on the basis of the "no net cost" and the proportionality requirements. More precisely, voluntary acceptance might be valuable in real life situations, merely because it allows the recipient herself (as opposed to society as a whole) to assess the respective value that the benefits and their associated obligations would represent for her, and to refuse the unsolicited benefit in case it would entail net costs for her. This can be seen however as implied in a given interpretation of the "no net cost" proviso (the view that the value of benefits and associated obligations should be assessed by the "beneficiary" herself),37 rather than as an extra requirement. Second, one may claim that there is a difference between costs - not benefits this time - incurred by those who voluntarily initiated a cooperative scheme and costs falling on other people who would get the benefits without having at all asked for them. Further amendments to our general view on free-riding cannot be excluded to answer this worry. However, such amendments would not affect the specific situation identified here as transgenerational free-riding. For the costs that current Bangladeshi people must bear have clearly been imposed upon them, as much as benefits may have been imposed upon the current US generation. The situation of the current Bangladeshi generation is thus significantly different from the one of the previous US generation that chose to emit CO2 and can thus be considered as having chosen to incur costs at the same time as benefits. The case of historical emissions is thus special: it involves two non-actors, one claiming compensation from the other on free-riding grounds. They are "non-actors" to the extent that, for what historical emissions are concerned, none of them can be said to have generated the benefits and their associated costs, that they are enjoying and incur36

Rawls' requirement according to which "one has voluntarily accepted the benefits of the arrangement or taken advantage of the opportunities it offers to further one's own interest" (J. Rawls, A Theory of Justice, 96) would then not be met in this case. It is worth stressing as well that if the refusal of harm-related benefits is generally possible through refusing the benefits themselves, and if the existence of such harms related to benefits could in principle have been known in many cases, generations could then generally be regarded as having in fact, be it in an implicit or hypothetical manner, accepted to inherit both benefits and their associated debts. This "implicit or hypothetical package acceptance" strategy, were it to be relied upon in a systematic manner, would thus address the "voluntariness" challenge to the idea of moral free-riding by assuming that, as a matter of fact, each generation would indeed have accepted to inherit the whole package of benefits and debts from their ancestors. This may well overlap in most cases with the "trans-generational free-riding" approach adopted here. However, in at least one case, the two strategies could diverge. Let us assume that the previous generation of US people did not (have to) know about the harmful consequences of its CO 2 emissions on current Bangladeshi people. Morally speaking, such harmful behaviour did not generate a debt towards the latter, given its non-wrongful nature. It follows that since the previous US generation had no debt in the first place (at least in relation to its CO2 emitting behaviour in the present case), no debt could be inherited in this respect by the current US generation. This is at least one reason why the trans-generational free-riding strategy may be more satisfactory than the "package acceptance" one. For another possible occurrence of the latter: infra, note 51 and accompanying text.

37

It would be worth investigating the connections between risks of "predation on the involuntary beneficiary" and Dworkin's "slavery of the talented" problem. See R. Dworkin, Sovereign Virtue, sect. 2. See as well G. Cullity, "Moral Free-riding", 14.

372 Axel Gosseries

ring to a different extent. This contrasts with Nozick's public entertainment example as well as possibly with cases of intergenerational free-riding (parents choosing to have kids, etc). There is thus no way in which we could say in the present transgenerational case that current Bangladeshi people imposed OO2 emissions-associated benefits upon current US citizens. And if a case for compensation were to hold in the non-transgenerational free-riding cases, an a fortiori argument would thus hold in the case of transgenerational free-riding. Provided that we amend Gauthier's definition in the two ways indicated above, Nozick's challenge can thus be regarded as having been successfully addressed, at the very least in the transgenerational free-riding case. Let me then add a third and final remark. The idea of a gift may be used as a test case in discussions on free-riding.38 It is through a reference to gifts that Gauthier's definition has been considered to be too broad, as it would imply that gift-recipients could be regarded as free-riding on gift-givers.39 It may however be objected to such an argument that once it is made clear by the gift-giver that she is not expecting anything in return, this simply amounts to renouncing her right to claim anything in return. Consequently, the recipient would not owe anything back, at least towards the gift-giver. She would thus not be a free-rider. Admittedly, more complicated cases can arise. What happens for example when a recipient sincerely took as a gift what was not meant as a gift? Such a case may be addressed along lines analogous to the ones developed to deal with the ignorance argument. If the recipient still benefits from what she took to be a gift after tk-, i.e. the moment she came to know or should have known that it was not a gift, the rules applying to free-riding should apply from that moment onwards.40 It is thus far from clear that gift cases are decisive to justify a further narrowing down of Gauthier's definition. 3. Re-considering the "No Net Cost" and the Proportionality Requirements We have argued that Gauthier's view on free-riding is able to stand Nozick's challenges, provided that we add two additional requirements, the "no net cost" and the proportionality one. These two provisos are sensible, but only under a particular understanding of free-riding. For, as we shall now argue, two possible rationales underlying the moral condemnation of free-riding can be identified. And the two requirements above may not necessarily hold in both cases. 3.1 A Fresh Look at the "No Net Cost" Requirement Let us thus re-consider the "no net cost" requirement first. Imagine a ceteris paribus 38 39

40

See as well Barry's argument above in the case of indirect reciprocity. G. Cullity, "Moral Free-riding", 3, note 1. Another possible way of narrowing down the scope of moral free-riding consists again in limiting it to cases involving non-rival goods, i.e. goods - such as lighthouses - that "one person's enjoyment of the good does" not diminish the benefits available to anyone else from its enjoyment" (G. Cullity, "Moral Free-riding", 4). In a certain sense, it is true that taking advantage of an inherited benefit in the case of rival goods, deprives others from it, hence harms them. Still, some difference remains between actively taking away something from someone (parasitism) and benefiting from something that was taken away from someone by a third party (free-riding). Free-riding thus does not necessarily turn into parasitism as soon as we leave the domain of non-rival goods - which by the way is a very restricted one - as transgenerational freeriding illustrates. See as well S. Arneson, "The Principle of Fairness and Free-rider Problems", 632.

Historical Emissions and Free-riding

373

case (same population size, etc.) where the costs of past emissions to the current Bangladeshi amount to 10 units and the benefits to the current US population only reach 4 units. There are two possible schemes: either the US should compensate Bangladeshi people with 4 units, or they should compensate them with 7 units so that each people ends up with costs of 3 units. The "no net costs" requirement above calls for the former option. Is this the only appropriate answer however? In order to address this issue, freeriding-based claims need to be located among other justice-based claims. Here is a simplified egalitarian theory of distributive justice revolving around two basic principles. First principle: All disadvantages resulting from circumstances (natural events or involuntary human actions) that were imposed on one should be compensated for. The assumption behind such a rejection of arbitrariness is that it is the most plausible interpretation of equal concern that we can come up with.41 Second principle: none of the disadvantages that a person imposes on herself should entitle her to compensation. I have to cover the costs flowing from harms to myself resulting from my own voluntary actions. This could be referred to as the responsibility principle. A third principle - not generally regarded as part of the core definition of egalitarianism - is tightly related to the second: I should compensate others for the disadvantages I impose on them through my own choices if and only if these harms that can be regarded as wrongs.4 To sum up, the "rejection of arbitrariness" principle deals with the consequences of natural events or involuntary actions on people, the responsibility principle focuses on the consequences of one's voluntary actions on oneself, and the no-wrong principle covers the consequences of one's voluntary actions on others. The first two principles belong to distributive justice whereas the latter can be regarded as part of interactive43 justice, a field of justice where compensation only takes place between people directly concerned with the consequences of a given action - which is the logic underlying tort law in legal systems. To put things in a different perspective, interactive justice can be regarded as a way of rectifying unfair departures from the baseline situation resulting from the implementation of distributive justice. Now, how can we relate free-riding with these three principles? There are two avenues, at least in the case of historical emissions. First option: free-riding between non-actors would fall within the first principle's ambit (rejection of arbitrariness) and could then be dealt with on the basis of an actionspecific redistributive approach. The logic is akin to the rejection of arbitrariness present in egalitarian theories. But the scope is more restricted since it deals with benefits and harms that are causally related. They are derived from a single (set of) action(s). Thus, it does not require any compensation if the (lasting) harm is not correlated with any (lasting) benefit. The intuition is that once I have learnt about the harmful consequences of a past action that I am benefiting from, there is no reason why I should continue benefiting from it while others are still suffering from that action through no choice of their own. In our example, the US would thus have to pay 7 units to compensate Bangladeshi people, ceteris paribus. In fact, the action of the previous US generation would be treated as no different from a past natural event. The fact that the benefits (to current 41 42

43

See R. Dworkin, Sovereign Virtue, Introduction. This is not the case for example in a fair competitive context where pursuing your own interest will generally entail setting back other people's interests. Notice moreover that once we adopt a principle such as "no one should be forced to bear the costs for which others are responsible" (non-cxploitation principle), principles DJ2 and IJ1 (see table 3) clearly appear as the two sides of the same coin. I am indebted to P. Bou-Habib for this remark. This expression was suggested to me by Ph. Van Parijs.

374 Axel Gosseries

Historical Emissions and Free-riding

US people) and costs (to current Bangladeshi people) are causally related should not make any difference from the point of view of distributive justice. Imagine a two-States world. One of the two States is being heavily disadvantaged by a volcano's eruption. Whether the neighbour State benefits from an advantage due to the same volcano or due to another natural event is irrelevant as to whether or not redistribution should take place between the two States. Second option: if benefiting from something is regarded as involving in some sense an action (accepting), then it would make more sense to add a fourth principle akin to the no-wrong principle. The rejection of the free-riding principle would thus hold that: all advantages to me resulting from other people's actions involving costs for them should give rise to compensation by myself to these cost bearers. Free-riding would then be regarded more as part of interactive (or rectificatory) justice than as part of distributive justice stricto sensu. The practical consequence is that in our example, compensation would be limited to 4 units. Rejection of Arbitrariness (DJ1) Responsibility Principle (DJ2) No-Wrong Principle


All disadvantages resulting to me from events or involuntary actions should be compensated for by society None of the disadvantages resulting to me from my own voluntary actions should be compensated All the disadvantages I incur as a result of other people's voluntary actions should be compensated by these very people - and not by society as a whole -, at least if these harms are wrongs All the advantages I get as a result of other people's action involving costs on them (or on others) should give rise to compensation from me, as long as the "no net cost" and the "proportionality" requirements are not being violated

Table 3: Free-riding's location on the map according to the second option, assuming that we take distributive justice to be equivalent to one form of it, i.e. egalitarianism. DJ = distributive justice stricto sensu; IJ = interactive justice

Impact of past Impact after compensation under the redistributive understanding of emissions the rejection of free-riding -3 US +.4 -3 Ban. -10

Impact after compensation under the interactive understanding of the rejection of free-riding 0 -6

Table 4: Two views on free-riding and the difference it makes (focus on the "no net cost" requirement)

It is worth stressing that no retroactivity is involved in implementing the interactive view on the rejection of free-riding. As in our fake notes example, there is a past harmful action that was not wrong when it took place because of a legitimate ignorance factor. If Roberto had known that the notes were fake before buying the wine, full compensation would have been in order, as required by the no-wrong principle. Since he did not (have to) know, he finds himself somehow in the same position as our free-riding US generation, benefiting now from a non-wrongful harmful action of his earlier self. In fact, Roberto was then a parasite, but a non-wrongful one. Once he finds himself in a post-tk situation, he should be treated in the same way as a free-rider in a post-tk situa-

375

tion. For what rectification (or interactive justice) is concerned, he should restitute no more than what he is still benefiting from after t^ as a result of his earlier non-wrongful harmful action. Similarly, from an interactive perspective, current US people should not be expected to compensate current Bangladeshi people beyond the value of what the former still enjoyed after t^ as a result of their ancestors' (non-wrongful) harmful emissions. If the no-wrong principle requires full compensation, no matter whether or not the wrongful actor derived any benefits from his wrong, the rejection of free-riding does not require compensation beyond the benefits the free-rider still enjoys as a result of other people's costly action, no matter whether or not such a compensation suffices to cover all such costs. This view may well seem insufficiently demanding to those who are ready to endorse a general egalitarian distributive approach. It could however be considered very demanding for others who are not such egalitarians (e.g. sufficientarians). The interactive understanding of the rejection of free-riding is thus especially meaningful to those who are not ready to endorse "demanding" theories of distributive justice. What about the distributive understanding of the rejection of free-riding? Schokkaert and Eyckmans point out that there is a strong correlation between historical emissions and current GNP/capita in various countries. Such a correlation could imply that historical emissions may be regarded as a necessary condition for the current level of GNP/capita in countries like the US. But it also implies that a GNP/capita-based general redistributive scheme would lead to redistributive movements taking the same direction as what compensation for historical emissions would require on action-specific or sector-specific redistributive grounds.45 Does this not indicate that if such a general redistributive scheme were politically available, the action-specific approach would be redundant?46 It remains however that in the absence of such a general redistributive scheme, an action-specific redistributive approach is a valuable second-best. It should also be stressed that even in domestic systems that incorporate some central redistributive scheme (a social security system), sector-specific redistributive schemes often remain a valuable complement. For example, although a given country might have a fair general system of unemployment benefits or a universal basic income scheme, this may not stop subsidised concert halls or public transport companies in such a country from offering as well discounted fares to the unemployed. How would we thus answer the following question from Schokkaert and Eyckmans: "do the developed countries have the ethical duty to pay more, just because they are rich, or do they have the duty because they have emitted more carbon dioxide in the past?" First, the ethical duty to pay more in relation to historical emissions can flow from an action-specific distributive interpretation of the rejection of free-riding without necessarily having to base ourselves on the fact that developed countries are globally richer. Second, we can alternatively base our obligation to pay more on an interactive interpretation of the rejection of free-riding, as long as we can show that we are net beneficiaries of our ancestor's emissions while current members of developing countries are net victims of them. This can be done without assuming that our ancestor's emis44 45

46 47

E. Schokkaert and J. Eyckmans, "Greenhouse Negotiations and the Mirage of Partial Justice", 210. Of course, such a convergence does not obtain in all transgenerational injustice issues. Sometimes, through mechanisms such as "making of necessity virtue", victims end up better off than they would have been if the harmful action had not taken place. This does not make the latter less harmful. See E. Schokkaert and J. Eyckmans, "Greenhouse Negotiations and the Mirage of Partial Justice" 206. E. Schokkaert and J. Eyckmans, "Greenhouse Negotiations and the Mirage of Partial Justice", 206.

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376 Axel Gosseries

sions were our emissions, as is implied in Schokkaert and Eyckmans' quote above.48 Of course, there is also the legitimate concern that the richer you are, the less a given environmental cost imposed on you may affect you, and conversely (law of decreasing marginal utility). This may as well justify some adjustments in what you will be expected to contribute. However, none of this necessarily requires us to fall back on a general redistributive scheme. In short, despite the fact that for an egalitarian, the first-best approach will certainly remain one involving a general redistributive scheme, neither does it prevent the coexistence of such a scheme with "local" redistributive ones, nor can we exclude that in the absence of such a general scheme, a local/sector-based one relying on a distributive understanding of the rejection of free-riding would be a valuable secondbest and one relying on an interactive understanding would be a third-best option worth defending. Each of the latter two would certainly be "fair" notwithstanding the fact that they would not be "fair enough". 3.2 Another Look at the Proportionality Requirement So far, we have focused on the "no net costs" requirement and we have seen that it should only hold within the context of an interactive understanding of free-riding. What about the proportionality requirement? Let us envisage the following example. Out of a given amount of historical emissions, the previous and the current US generations got a benefit of 6 units each whereas the current Bangladeshi generation is suffering a harm of 6 units. If we were to abide strictly by the proportionality requirement, the current US generation should in principle cover at most half of the costs to the current Bangladeshi generation, since the former is merely a free-rider whereas the previous US generation was a parasite (which entails stronger obligations to compensate). The problem is that we are facing a problem of non-compliance, for - ex hypothesi - the previous US generation did not pay her share of compensation. This problem is classically discussed in the literature on the "demandingness" of morality: does non-compliance by others regarding their obligations towards person x affect at all the extent of my own obligations towards that person x? Some will argue that other people's non-compliance may lessen or strengthen my obligations while others believe that it should leave them unaffected.49 Take the case of two adults who are both good swimmers and don't know each other. They are sitting on the grass along a pond. All in a sudden, two small kids who were playing in the grass fall into the water and are in urgent need of rescue. As one of the two adults, I can see that the other one is not willing at all to move. Does it affect my moral obligations? And if it does, in which direction? Am I allowed to save no child at all (since the other adult will not either), to 48

49

Here is Schokkaert and Eyckmans' position: "(•••) let us return to the argument that richer countries should abate more because they are responsible for the bulk of past emissions. We argued that this argument is not fully convincing and that it is preferable to base the duty of the richer countries simply on the fact that they are richer. It is somewhat paradoxical that the past-emissions argument is playing a central role in the argumentation by the third world. We suggest that this is due to the fact that the discussion remains centred on the global warming problem itself: in such a partial context, the past emissions argument may act as a roundabout means to introduce into the debate the issue of unequal global income distribution. In our broader setting, there is no need for this roundabout argument" (E. Schokkaert and J. Eyckmans, "Greenhouse Negotiations and the Mirage of Partial Justice", 214). See e.g. for a recent discussion: T. Mulgan, The Demands of Consequentialism. See as well Arneson's notions of "nervous" and "reluctant" cooperators (R. Arneson, 'The Principle of Fairness and Free-rider Problems", 622f).

377

stick to saving one child (while being perfectly able to save the two) or do I need to save the two kids alone? Similarly, does tax evasion by others increase or reduce my obligations as a tax payer, or does it leave them unaffected? There is something specific to our case, namely that the past generation's non-compliance is an irreversible one, as we are dealing with non-overlapping generations. This means that at least one possible rationale for not increasing a person's obligations when the others don't comply with theirs does not apply in this case. We are referring here to the following rationale: Increasing a complier's obligations as the amount of non-compliance of her neighbours keeps growing would just provide to the latter an incentive towards further non-compliance, as the goal pursued by such obligations (e.g. meeting some people's needs) will be met anyway. In the transgenerational case however, such a rationale should not be used, since there is no way we can still affect the amount of compliance of the previous generation. Now, let us assume first that we adopt a redistributive understanding of the rejection of free-riding. The redistributive logic calls in fact for an increase of our share in such circumstances, up to a level of 6 units. Why would the current Bangladeshi have to suffer costs of 6 units while I would be enjoying at the same time a benefit of 6 units, in each case due to no action of our own? This would violate the "rejection of arbitrariness" understanding of equal respect. In contrast, under the interactive view on the rejection of free-riding, while someone else's non-compliance should certainly not justify a reduction of one's share of obligations, there is also no reason why such non-compliance should increase one's share. Under the interactive understanding of the rejection of free-riding, the current US generation should then compensate Bangladeshi people for a value of 3, as opposed to 6. Impact after compensation Impact of past Impact after compensation under the redistributive under- under the interactive underemissions standing of the rejection of standing of the rejection of free-riding (irreversible nonfree-riding (irreversible noncompliance of past US) compliance of past US) + 6 (non-compliance) Past US + 6 (non-compliance) +6 0 Current US +6 3 (or more) Current Ban. 0 -6 - 3 (or less) Table 5: Two views on free-riding and the difference it makes (focus on the proportionality requirement)

We have thus indicated that there are two possible rationale at stake behind the idea of the rejection of free-riding in general and transgenerational free-riding in particular. In both cases, the current US generation owes some compensation to current Bangladeshi people. The extent of such a compensation will vary however, depending on which one of the two rationale is being adopted. 4.

Towards Possible Extensions

In fact, most historical injustice issues are transgenerational injustice ones. The concept of transgenerational free-riding defended here is thus of potential interest to deal with issues as diverse as claims for black reparations (made by the descendants of slaves against the heirs of their masters), aboriginal claims and claims aiming at the restitution

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378 Axel Gosseries

of Jewish Gold kept in Swiss banks as a result of WWII. We shall devote a few lines to three remarks regarding the possible relevance of our discussion for other transgenerational injustice issues. A first point relates to the ignorance challenge. There are not many other transgenerational justice issues where the ignorance challenge is being raised. This is probably due to the very fact that, in the case of historical CO2 emissions, we are dealing with actions being mainly harmful in a delayed manner. If harm were occurring right after the action (even in a geographically remote place), ignorance would be much harder to maintain, at least towards the gift-giver. So far however, immediate effects of greenhouse gas emissions had remained limited and, hence, largely ignored. Admittedly, there is another possible version of the ignorance challenge consisting in claiming that, even if they knew that they were harming other people, our ancestors did not know that they were wronging them. This can be inferred e.g. from the view objecting that "the global economy has been based on the free disposal of CO2 emissions".50 An analogy would consist in saying that although US slavery adepts knew that they were harming black people, they didn't know it was morally wrong to do so. Barriers to knowledge about wrongness come of course on top of barriers to knowledge of harm. However, in a case like slavery, there don't seem to be any particular barriers to knowledge of harm, nor of wrong, as regarding the latter, what is needed are the mere basics of moral thinking and the ability to listen to the people you enslaved. The second point is related to the first. As we already mentioned, what seems rather specific to the case of historical emissions is that an action from past US people harms current Bangladeshi people in a direct way. This contrasts with most historical injustice situations that require at least four (collective) parties (instead of three in our account here). Take the case of slavery again. The descendants of slaves are not being harmed in a direct way by their ancestors' masters. It is only to the extent that the harm to their ancestors leads in turn to some harm to them that they might claim some compensation to the descendants of their masters. The harm is thus an indirect one. And this is not at all irrelevant. First, it may raise difficulties regarding the causal relation between the harmful action and the consecutive harm to current people.51 It is likely to make it more difficult to calculate the size of such harm. And second, the non-identity argument may well be relevant to both cases of direct and indirect harms. It will however be so in a different manner. In the slavery case, our paradigmatic example of indirect harm, the action of the past generation of harmdoers will clearly affect the identity of their victims' children, as slavery was affecting the life of such victims to a large extent.52 In contrast, in the historical CO2 emissions case where immediate effects are, if not inexistent, at least very limited, the non-identity problem only arises one generation after the delayed effects have reached a threshold such that people's timing of reproduction will be generally affected by them. Let us add however that historical emissions do not constitute the only example of a historical injustice issue that can be accounted for with a trilateral model involving direct harms. Another illustration is provided by cases where the victim is still the original one and where it is the wrongdoer who died and has now been replaced with his de50 51 52

S. Kverndokk, "Tradeable CO 2 Emission Permits", 138. Compare this with the "natural debt" approach: K. Smith, J. Swisher and D. Ahuja, "Who pays?". See the notion of "automatic effect" in G. Sher, "Ancient Wrongs and Modern Rights", 141, and J. Thompson, "Historical Injustice and Reparation", 117-119. See for an example of use of the non-identity argument in the case of reparations for the consequences of slavery: S. Kershnar, "The Inheritance-based Claim to Reparations?"

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scendants. This is partly the case in the Jewish Gold case. The victim's survival replaces here the pollutant's lasting effect in making the "past parasite/current victim" connection a direct one. Current Free-Rider

Current Victim

Past Parasite

1. Historical emissions

Current Free-Rider

Current Victim

Current Free-Rider

Past Parasite

Original Victim

Past Parasite

2. Standard historical injustice case

Current victim = original victim

3. Surviving victims case

Table 6: Direct (cases 1 and 3) or indirect (case 2) transgenerational harm

Our third and last point is that while some claims may be based on free riding, others may take a negative form, namely that if the current generation does not act in a certain way, she will not be a free-rider. Debt relief provides a fine illustration. One argument often raised in support of third world debt cancellation claims refers to the fact that initial debts were contracted by undemocratic State authorities. They should thus not bind such States' citizens. There is however a related argument that is often being overlooked: any debt contracted by a former legislature and imposed on the next legislature is inherently undemocratic, at least if we take equal right to vote as a core democratic feature. Even the most democratic country is necessarily intergenerationally undemocratic, unless we can show that a package acceptance procedure is being followed (hypothetically, implicitly or explicitly) each time we pass from a legislature to the next.53 The idea of state continuity could thus be morally problematic to the extent that it may imply that current citizens be always bound by the decisions taken by their ancestors' representatives, including the debts that the latter have contracted. Let us then imagine the following situation. A century ago, country X borrowed from country Y an certain amount money. Country X was then perfectly democratic. However, this country's citizens were quite selfish at that time and used up the whole money in perishable consumption goods. As a result, there is no way in which this money may benefit the current members of country X. However, time for reimbursement has come and the country Y's government sends one of its officials to get the money and the interests back. Would current citizens of country X be entitled to refuse paying anything back? If it can be shown that they did not benefit from the money at all, and if it can be successfully argued that if any later debt adjustment contracts took place, it was not voluntarily signed in the morally relevant sense, country X's current generation should not pay the money back. Conversely, if they did benefit from this money, they would be bound to pay at least part of it back, even if the government that contracted this debt was not theirs. This is not to say that such an argument would provide us with a definitive case in favour of an unconditional debt cancellation in all such situations where a debt con53

This undemocratic nature (at least if we lake the core feature of democracy to consist in free elections by an inclusive constituency) also affects constitutional precommitment strategies. See e.g. S. Holmes, Passions and Constraint, ch. 5.

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380 Axel Gosseries

tracted by an earlier generation did not lead to any benefit for the current generation who is now being asked to pay the money back. Extensive thoughts need to be devoted to problems such as how far the succession of adjustment contracts affects the argument, or how extensive are risks of moral hazard or of free-riding by private lenders in case of debt cancellation by public ones.54 Still, it remains that the concept of transgenerational free-riding certainly has real potential in addressing such issues. Conclusion While one may believe that policies such as affirmative action would better be justified on distributive justice grounds rather than on reparation-for-historical-injustice grounds, it is a striking feature of public debate that the latter rationale keeps resurfacing again and again. In some sense, it probably results from the layman's view that reparation for harm provides a somehow stronger justification than a mere rejection of arbitrariness. According to such a view, my claim against you because you handicapped me would be stronger than my claim against society because natural lottery made me handicapped. While I don't believe that there is much justification for such a view, it does not follow that we should totally disregard domains of justice that do not directly belong to distributive justice, most notably interactive justice. The latter is of obvious relevance in the climate change context. Sooner or later, current emissions will clearly inflict harm on at least some people. To that extent, many of us should regarded themselves as parasites. Admittedly, current emissions should concern us much more than historical emissions. Still, this does not mean that the latter are of no practical and theoretical importance. Focusing on historical emissions, we have indicated that while being serious challenges, the "ignorance" and the "non-contemporaneity" arguments are not decisive. We can circumvent them through relying on a notion of transgenerational free-riding, while remaining within the ambit of moral individualism. Free-riding allows us to justify obligations to compensate without having neither to consider us morally responsible for our ancestors' actions, nor to judge them guilty of wrongful action. Moral free-riding has been criticised, most notably by Nozick. We have shown however that once it is properly amended, Gauthier's definition of free-riding remains totally defensible. It may even receive two very different interpretations, a distributive and an interactive one. Each of them leads to clearly distinct compensation patterns. This distinction allows to clarify as well the kind of relationship that a "free-riding-based" claim can have with a general distributive view. Contrary to what has been argued, it is not necessarily redundant with a general distributive view. We can thus conclude that a free-riding-based approach of the "historical emissions" issue supports the view according to which some extent of compensation should be required from countries who are now benefiting from past emissions, at other countries' costs. The approach may also be relevant to many other historical injustice issues.

54

On the latter issue: J. Van Gerven and T. Vandevelde, "Ethical Aspects of Debt Reduction for the Poorest Countries", 11.

381

Bibliography Ameson, R., "The Principle of Fairness and Free-Rider Problems", Ethics 92 (1982). Arrhenius, S., On the Influence of Carbonic Acid in the Air Upon the Temperature of the Ground, Philosophical Magazine and Journal of Science, S 15,41 (251) (1896). Banuri, T., Göran-Mäler, K., Grubb, M., Jacobson, H., and F. Yamin, "Equity and Social Considerations", in J.P. Bruce, H. Lee, and E. Haites (eds.) (IPCC, WG III), Climate Change 1995. Economic and Social Dimensions of Climate Change, Cambridge University Press, 1996. Barry, B. Liberty and Justice (Essays in Political Theory 2), Clarendon Press, 1989. Crawford, E., Arrhenius: From Ionic Theory to the Greenhouse Effect, Science History Publications (Uppsala Studies in History of Science, Vol. 23), 1996. Cullity, G., "Moral Free-riding", Philosophy and Public Affairs 24 (1995). Dworkin, R., Sovereign Virtue. The Theory and Practice of Equality, Harvard University Press, 2000. Den Elzen, M., Berk, M., Shaeffer, M., Olivier, J., Hendriks, C , and B. Metz, The Brazilian Proposal and other Options for International Burden Sfiaring: an evaluation of methodological and policy aspects using the FAIR model, Bilthoven/Utrecht: RIVM report n° 728001011, 1999. Farman, J., Gardiner B., and D. Shankin, "Large Losses of Total Ozone in Antarctica Reveals Seasonally ClOx/NOx Interaction", Nature 315 (1985). Gauthier, D., Morals by Agreement, Clarendon Press, 1986. Van Gerven, J. and T. Vandevelde, "Ethical Aspects of Debt Reduction for the Poorest Countries", Ethical Perspectives, 8 (2000). Ghosh, P., "Structuring the Equity Issue in Climate Change", The Climate Change Agenda: An Indian Perspective, ed. in A.N.Achanta, Tata Energy Research Institute (TERI), 1993. Gosseries, A., "What Do We Owe the Next Generation(s)?", Loyola of Los Angeles Law Review 35 (2001). Gosseries, A., "Intergenerational Justice", The Oxford Handbook of Practical Ethics, ed. H. LaFollette, Oxford University Press, 2003. Grubb, M., "Seeking Fair Weather. Ethics and the International Debate on Climate", International Affairs 71 (1995). Hayes, P. and K. Smith (eds.), The Global Greenhouse Regime. Who Pays?, United Nations University Press, 1993. Holmes, S., Passions and Constraint. On the Theory of Liberal Democracy, The University of Chicago Press, 1995. Houghton, J., Jenkins, G., and J. Ephraums (eds.). Scientific Assessment of Climate Change. Report of Working Group I, Cambridge University Press, 1990. Houghton, J., Meira Filho L., Callender, B., Harris, N., Kattenberg, A., and K. Maskell (eds.), Climate Change 2001. The Scientific Basis. Contribution of Working Group I to the Second Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), Cambridge University Press, 1995. Houghton, J., Ding, Y., Griggs D., Noguer, M., van der Linden, P., and D. Xiaosu (eds.), Climate Change 2001. The Scientific Basis. Contribution of Working Group I to the Third Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), Cambridge University Press, 2001. Kershnar, S., "The Inheritance-Based Claim to Reparations?", Legal Theory 8 (2002).

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382 Axel Gosseries Kutz, C , Complicity. Ethics and Law for a Collective Age, Cambridge University Press, 2001. Kverndokk, S., "Tradeable CO2 Emission Permits: Initial Distribution as a Justice Problem", Environmental Values, 4 (1995). Manabe, S. and R. Wetherald, "Thermal Equilibrium of the Atmosphere with a Given Distribution of Relative Humidity", Journal of the Atmospheric Sciences 24 (1967). Manabe, S. and R. Wetherald, "The Effects of Doubling CO2 Concentration on the Climate of a General Circulation Model", Journal of the Atmospheric Sciences 32 (1975). Molina, M. and F. Rowland, "Stratospheric Sink for Chlorofluoromethanes. Chlorine Atom Catalyzed Destruction of Ozone", Nature 249 (1974). Mulgan, T., The Demands of Consequentialism, Clarendon Press, 2001. Nozick, R., Anarchy, State, and Utopia, Blackwell, 1974. Parfit, D., Reasons and Persons, Clarendon Press, 1984. Rawls, J., A Theory of Justice, revised edition, Oxford University Press, 1999. Schokkaert, E. and J. Eyckmans, "Greenhouse Negotiations and the Mirage of Partial Justice", Global Environmental Economics. Equity and the Limits to Markets, ed. M. Dore and T. Mount, Blackwell, 1998. Sher, G., "Ancient Wrongs and Modern Rights", this volume. Singer, P., One World. The Ethics of Globalization, Yale University Press, 2002. Smith, K., Swisher, J. and D. Ahuja, "Who Pays (to Solve the Problem and How Much)?", The Global Greenhouse Regime. Who Pays?, ed. P. Hayes and K. Smith, United Nations University Press, 1993. Thompson, J., Historical Obligations, typescript, Sept. 1998. Thompson, J., "Historical Injustice and Reparation. Justifying Claims of Descendants", Ethics 112 (2001). Torvanger, A. and O. Godal, A Survey of Differentiation Methods for National Greenhouse Gas Reduction Targets (Report to Nordic Council of Ministers), Center for International Climate and Environmental Research, TemaNord 2000: 551/Cicero Report 5, 1999. Tulkens, H., "Cooperation vs. Free Riding in International Environmental Affairs. Two Approaches", ch. 2 of Game Theory and the Environment, ed. N. Hanley and H. Folmer, London, 1998.

Punishment, Reconciliation, and Democratic Deliberation

l

David A. Crocker

Contents 1.

The Argument Against Vengeance

2.

Is Punishment Retribution?

3.

Is Retribution Vengeance?

3.1 Retribution Addresses a Wrong 3.2 Retribution is Constrained 3.3 Retribution is Impersonal 3.4 Retribution Takes No Satisfaction 3.5 Retribution is Principled 3.6 Retribution Rejects Collective Guilt 4.

Is Vengeance Morally Wrong?

5.

The Reconciliation Argument

6.

Three Concepts of Reconciliation

6.1 Ubuntu 6.2 Nonlethal Coexistence 6.3 Democratic Reciprocity 7.

Means of Reconciliation

7.1 Means to Peaceful Coexistence 7.2 Means to Democratic Reciprocity 7.3 Means to Ubuntu 8.

Concluding Remarks

385 385 387 388 388 389 390 390 390 392 393 393 393 394 395 396 397 400 402 403

I am grateful to Alex Boraine, Cory Briggs, Lawrence Crocker, Richard J. Goldstone, Pablo De Greiff, David Dyzenhaus, Jason Marsh, Verna Gehring, and Mark Sagoff for helpful comments on earlier versions of all or parts of this essay. I also owe thanks to the following universities and host institutions, in which 1 was invited to give portions of the paper: Conference on "Justice, Memory, and Reconciliation", Munk Centre for International Studies, University of Toronto; Inaugural Lecture, Human Rights B.A. Program, Carleton University, Ottawa, Canada; Departmental Colloquium, Department of Philosophy, Colorado State University; and Workshop, Committee on Politics, Philosophy, and Public Policy, University of Maryland; Symposium on Ethics and Global Is-

382 Axel Gosseries Kutz, C , Complicity. Ethics and Law for a Collective Age, Cambridge University Press, 2001. Kvemdokk, S., "Tradeable CO2 Emission Permits: Initial Distribution as a Justice Problem", Environmental Values, 4 (1995). Manabe, S. and R. Wetherald, "Thermal Equilibrium of the Atmosphere with a Given Distribution of Relative Humidity", Journal of the Atmospheric Sciences 24 (1967). Manabe, S. and R. Wetherald, "The Effects of Doubling CO2 Concentration on the Climate of a General Circulation Model", Journal of the Atmospheric Sciences 32 (1975). Molina, M. and F. Rowland, "Stratospheric Sink for Chlorofluoromethanes. Chlorine Atom Catalyzed Destruction of Ozone", Nature 249 (1974). Mulgan, T., The Demands of Consequentialism, Clarendon Press, 2001. Nozick, R., Anarchy, State, and Utopia, Blackwell, 1974. Parfit, D., Reasons and Persons, Clarendon Press, 1984. Rawls, J., A Theory of Justice, revised edition, Oxford University Press, 1999. Schokkaert, E. and J. Eyckmans, "Greenhouse Negotiations and the Mirage of Partial Justice", Global Environmental Economics. Equity and the Limits to Markets, ed. M. Dore and T. Mount, Blackwell, 1998. Sher, G., "Ancient Wrongs and Modern Rights", this volume. Singer, P., One World. The Ethics of Globalization, Yale University Press, 2002. Smith, K., Swisher, J. and D. Ahuja, "Who Pays (to Solve the Problem and How Much)?", The Global Greenhouse Regime. Who Pays?, ed. P. Hayes and K. Smith, United Nations University Press, 1993. Thompson, J., Historical Obligations, typescript, Sept. 1998. Thompson, J., "Historical Injustice and Reparation. Justifying Claims of Descendants", Ethics 112 (2001). Torvanger, A. and O. Godal, A Survey of Differentiation Methods for National Greenhouse Gas Reduction Targets (Report to Nordic Council of Ministers), Center for International Climate and Environmental Research, TemaNord 2000: 551/Cicero Report 5, 1999. Tulkens, H., "Cooperation vs. Free Riding in International Environmental Affairs. Two Approaches", ch. 2 of Game Theory and the Environment, ed. N. Hanley and H. Folmer, London, 1998.

383

Punishment, Reconciliation, and Democratic Deliberation1

David A. Crocker

Contents 1.

The Argument Against Vengeance

2.

Is Punishment Retribution?

3.

Is Retribution Vengeance?

3.1 Retribution Addresses a Wrong 3.2 Retribution is Constrained 3.3 Retribution is Impersonal 3.4 Retribution Takes No Satisfaction 3.5 Retribution is Principled 3.6 Retribution Rejects Collective Guilt 4.

Is Vengeance Morally Wrong?

5.

The Reconciliation Argument

6.

Three Concepts of Reconciliation

6.1 Ubuntu 6.2 Nonlethal Coexistence 6.3 Democratic Reciprocity 7.

Means of Reconciliation

7.1 Means to Peaceful Coexistence 7.2 Means to Democratic Reciprocity 7.3 Means to Ubuntu 8.

Concluding Remarks

385 385 387 388 388 389 390 390 390 392 393 393 393 394 395 396 397 400 402 403

I am grateful to Alex Boraine, Cory Briggs, Lawrence Crocker, Richard J. Goldstone, Pablo De Greiff, David Dyzenhaus, Jason Marsh, Verna Gehring, and Mark Sagoff for helpful comments on earlier versions of all or parts of this essay. I also owe thanks to the following universities and host institutions, in which 1 was invited to give portions of the paper: Conference on "Justice, Memory, and Reconciliation", Munk Centre for International Studies, University of Toronto; Inaugural Lecture, Human Rights B.A. Program, Carleton University, Ottawa, Canada; Departmental Colloquium, Department of Philosophy, Colorado State University; and Workshop, Committee on Politics, Philosophy, and Public Policy, University of Maryland; Symposium on Ethics and Global Is-

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From Chile to Cambodia to South Africa to the United States, societies and international institutions are deciding how they should reckon with past atrocities - including war crimes, crimes against humanity, genocide, rape, and torture - that may have been committed by a government against its own citizens, by its opponents, or by combatants in an international armed conflict. In deciding whether and how to address these political crimes, it is commonly believed that trials and punishment, on the one hand, and reconciliation, on the other, are fundamentally at odds with each other, that a nation must choose one or the other, and that reconciliation is morally superior to punishment. For example, in No Future without Forgiveness,2 Archbishop Desmond Mpilo Tutu evaluates the successes and failures of the South African Truth and Reconciliation Commission (TRC). The chair of the TRC, Tutu defends the Commission's granting of amnesty to wrongdoers who revealed the truth about their pasts, and he lauds those victims who forgave their abusers. While recognizing that a country must reckon with its past evils rather than adopt "National Amnesia", (13) Tutu nevertheless rejects what he calls the "Nuremberg trial paradigm" (19). He believes that victims should not press charges against those who violated their rights, and the state should not make the accused "run the gauntlet of the normal judicial process" (19) and impose punishment on those found guilty. Tutu offers practical and moral arguments against applying the Nuremberg precedent to South Africa. On the practical side, he expresses the familiar view that if trials were the only means of reckoning with past wrongs, then proponents of apartheid would have thwarted efforts to negotiate a transition to democratic rule. The South African court system, moreover, biased as it was toward apartheid, would hardly have reached just verdicts and sentences (24, 180). Tutu points out that trials are inordinately expensive, time-consuming, and labor intensive - diverting valuable resources from such tasks as poverty alleviation and educational reforms. In the words of legal theorist Martha Minow, prosecution is "slow, partial, and narrow".3 Rejecting punishment, Tutu favors the TRC's approach in which rights violators publicly confess the truth while their victims respond with forgiveness. Powerful practical reasons may explain the decision to spare oppressors from trials and criminal sanctions. Tutu, however, offers two moral arguments to justify rejection of the "Nuremberg paradigm". The first, which I call the "argument against vengeance", is a nonconsequentialist argument that identifies punishment with retribution, rejects retribution, and concludes that punishment is morally wrong. Tutu's second argument, which I call the "reconciliation argument", is consequentialist: it contends that punish-

2 3

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sues, Department of Philosophy, College of Wooster; Eastern Division Meeting, American Philosophical Association; Carnegie Council on Ethics and International Affairs; Central Division Meeting, American Philosophical Association; and V Diälogo Mayor de la Universidad del Rosario, Bogota, Colombia. A shorter version of the paper's first section appeared in Report from the Institute for Philosophy & Public Policy, 20 (2000), 1-6. A shorter version of the second section appeared in The Responsive Community 11 (2001), 32-42. A Spanish translation (by Carlos Parales) of the first two sections appeared in Adolfo Chaparro Amaya, ed., Cultura politico y perdön (Bogota, Colombia: Centra Editorial Universidad del Rosario, 2002), 173-91. The complete paper appeared in a special issue, "Democracy and Punishment" of the Buffalo Criminal Law Review 5 (2002), 509-549. D.M. Tutu, No Future without Forgiveness. Citations from Tutu's volume will appear within parentheses in the text. M. Minow, Between Vengeance and Forgiveness, 9. See also P. van Zyl, "Evaluating Justice and Reconciliation Efforts", "Justice Without Punishment".

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ing human rights violators is wrong because it only further divides former enemies and impedes social healing. Tutu contends that "reconciliation" - the restoration of social harmony - is best promoted when society grants amnesty and victims forgive their abusers. This article assesses Tutu's two arguments.4 First, I argue that retribution, properly conceived, is both one appropriate aim of punishment and differs significantly from vengeance. Second, I distinguish three ideals of reconciliation, argue for a democratic conception over Tutu's social harmony view, and contend that regardless of the meaning given to reconciliation, in reckoning with past wrongs, a society must be wary of overestimating the restorative effect of amnesty and forgiveness as well as underestimating the reconciling power of justice. In the paper's concluding section, I contend that although punishment and reconciliation do "pull in different directions" and sometimes clash, when adequately conceived, they are both morally urgent goals that often can be combined in morally appropriate ways. When such combining is not possible, decisions concerning trade-offs should be arrived at through public deliberation and democratic choice.6 1.

The Argument Against Vengeance

In his argument against vengeance, Tutu offers three premises for the conclusion that at least during South Africa's transition - legal punishment of those who violate human rights is morally wrong. The premises are: (i) punishment is retribution, (ii) retribution is vengeance, and (iii) vengeance is morally wrong. Although Tutu understands that forgiveness may be appropriate for any injury, at one point he claims that amnesty provides only a temporary way for South Africa to reckon with past wrongs. He provides no criteria, however, to determine at what point punishment for crimes should be reinstated, and he also offers no reasons that punishment is justified in normal times. Further, one might wonder on what grounds Tutu would deny exoneration for those who committed human rights violations after the fall of apartheid and who now wish to exchange full disclosure of their wrongdoing for amnesty.

4

5 6

7

My focus on Tutu's views and arguments does not mean that I assume that other members of the TRC shared his ideas. In comments on an earlier version of the present paper, Alex Boraine, Deputy Chair of the TRC, remarked that Tutu's personal contribution to the TRC was enormous and even indispensable, but Tutu's own opinions should not necessarily be taken to represent the TRC or the opinions of its other members ("Comments", Carnegie Council on Ethics and International Affairs, New York City, 2 March 2001.) Although Boraine seems to agree with Tutu when Boraine says the African ideal of ubuntu includes the concrete principle that "the adjudication process must be conciliatory in order to restore peace, as opposed to an adversarial approach which emphasizes retribution", Boraine also says "while broadening the concept of justice, the TRC model does not contradict retributive justice" (A. Boraine, A Country Unmasked, 425,427f) D. Little, "A Different Kind of Justice", 79. In earlier papers I formulated eight principles or goals to evaluate reckoning with past wrongs and employed them in assessing the merits of various tools, such as trials and truth commissions. These goals, which I merely list here, are: truth; a public platform for victims; punishment; rule of law; compensation to victims; institutional reform and long-term development; reconciliation, and public deliberation. See D.A. Crocker, "Civil Society and Transitional Justice"; "Reckoning with Past Wrongs"; 'Truth Commissions, Transitional Justice, and Civil Society". In the present paper I focus on three of the eight goals: punishment, reconciliation, and public deliberation. See R.C. Slye, "Justice and Amnesty"; "Amnesty, Truth, and Reconciliation".

386 David A. Crocker 2. Is Punishment Retribution ? Consider the first of Tutu's three premises in his argument against punishment. While Tutu assumes that punishment is no more than retribution, he fails to define what he understands by "punishment". He does not, for example, explicitly identify legal punishment as state-administered and intentional infliction of suffering or deprivation on wrongdoers.8 Tutu also says almost nothing about the nature and aims of legal punishment. He fails to distinguish court-mandated punishment from therapeutic treatment and social shaming, among other societal responses to criminal conduct. Tutu does not consider the various roles that punishment may play - such as to control or denounce crime, isolate the dangerous, rehabilitate perpetrators, or give them their "just deserts" - and whether these roles justify the criminal sanction. He does at one point say that the "chief goal" of "retributive justice" is "to be punitive" (54). Tutu apparently takes it as given that "punishment" means "retribution" and that the nature of legal punishment is retributive. Tutu does at times concede that trials have two other aims, at least during South Africa's transition: vindicating the rights of victims and generating truth about the past. Again and again, Tutu states that victims of past wrongs have the right - at least a constitutional right and perhaps also a moral one - to press criminal charges against and seek restitution from those who abused them (51, 144, 147, 211). He also extols the "magnanimity" of individuals who, like former South African President Nelson Mandela (10, 39), have not exercised this right but are willing to forgive and seek harmony (ubuntu) with their oppressors. These statements suggest that Tutu regards legal punishment not merely as a means to retribution but also as a way to affirm and promote the rights of victims.9 Tutu also endorses the credible threat of punishment as a social tool to encourage perpetrators to tell the truth about their wrongdoing. The TRC did not grant a blanket amnesty to human rights violators or pardon all those convicted of rights abuses committed during apartheid. Instead the TRC offered amnesty to individual perpetrators only if (i) their disclosures were complete and accurate, (ii) their violations were politically motivated, and (iii) their acts of wrongdoing were proportional to the ends violators hoped to achieve. According to Tutu, individuals who fail to fulfill any of the three conditions have a strong incentive to apply for amnesty and reveal the whole truth. It is precisely because violators are threatened with trial and eventual punishment that they realize that making no application for amnesty or lying about their wrongdoing is too risky. Without such a threat of trial and punishment, the TRC is unlikely to have had the number of perpetrators who did come forward to confess gross wrongdoing. But Tutu cannot have it both ways. He cannot both reject actual punishment and still defend the threat of punishment as efficacious in dispelling lies and generating truth. Hence, Tutu's acceptance of a "threat to punish" practically commits him to a nonretributive and consequentialist role for punishment, since without occasionally making good on the threat to punish, such a threat loses credibility.

8

9

L. Crocker, 'The Upper Limits of Punishment", 1063. See also Geoffrey Cupit's definition of (both legal and nonlegal) punishment: "To punish is intentionally to make suffer, intentionally to inflict something disadvantageous, burdensome, and unwelcome." (G. Cupit, Justice as Fittingness, 139). Some retributive theories of punishment or mixed theories with a retributive component emphasize respect for the victim and his or her rights. See, for example, A. Neier, War Crimes, 83,222.

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Tutu does not bring enough precision to the term "retribution". He seems, at points, simply to identify retribution with legal punishment. Instead, one must understand retribution as one important rationale or justification for and a constraint upon punishment. Proponents of the retributive theory of punishment offer a variety of competing accounts, but all agree that any retributive theory minimally requires that punishment must be "backward looking in important respects".10 That is, justice requires that a crime is punishable as, in the words of lawyer and legal theorist Lawrence Crocker, "a matter of the criminal act, not the future consequences of conviction and punishment"." These future consequences might comprise such good things as deterrence of crime, rehabilitation of criminals, or promotion of reconciliation. For the proponent of retributivism, however, the infliction of suffering or harm, something normally prohibited, is justified because of- and in proportion to - what the criminal has done antecedently. Only those found guilty should be punished, and their punishment should fit (but be no more than) their crime. Some supporters of the retributive theory of punishment, assert, moreover, that only (and perhaps all) wrongdoers deserve punishment, and the amount or kind of punishment they deserve must fit the wrong done.12 Philosopher Robert Nozick explains "desert" in terms of both the degree of wrongness of the act and the criminal's degree of responsibility for it.13 Retribution as a justification for punishment requires that wrongdoers should get no more than (and perhaps no less than) their "just deserts".14 3.

Is Retribution Vengeance?

The second premise in Tutu's argument against punishment - that retribution is (nothing but) vengeance or revenge - is flawed as well. Given Nozick's understanding of retribution as "punishment inflicted as deserved for a past wrong".15 is Tutu's right to treat retribution and revenge or vengeance as equivalent? Both retribution and revenge share, 10 11 12

13 14

15

L. Crocker, "The Upper Limits of Punishment", 1061. Ibid. Mandatory retributivism contends that all and only wrongdoers should be punished and that the punishment should be no less than and no more than what the wrongdoer deserves; limited or permissive retributivism contends that only wrongdoers should be punished and that the punishment should not be more - but may be less - than what is deserved. I owe this distinction to Lawrence Crocker, "A Retributive Theory of Criminal Justice" (unpublished mss). Many critics of retributivism unfortunately tend to identify retributivism with the mandatory form. See C. Nino, 'The Duty to Punish Past Abuses of Human Rights Put Into Context", 2620; and T.M. Scanlon, "Punishment and the Rule of Law", 258. R. Nozick, Philosophical Explanations, 363. Urgently needed, but beyond the scope of the present paper, is a detailed analysis and evaluation in relation to "transitional justice" - of recent attempts to defend retributivism or a retributive dimension of a mixed theory of punishment. These efforts, for example, appeal to intuition (Michael Moore) or employ higher order principles such as fittingness (Geoffrey Cupit), reciprocity (L. Crocker), communication (Jean Hampton, Robert Nozick) or fair distributions of benefits and burdens (Herbert Morris, George Sher, James Rachels). In addition to other essays cited in this article that defend a form of retributivism, see M. Moore, Laying Blame; J. Hampton, 'The Moral Education Theory of Punishment"; H. Morris, "Persons and Punishment"; G. Sher, Desert; J. Rachels, "Punishment and Desert". Important criticisms of retributivism include R.W. Burgh, "Do the Guilty Deserve Punishment?"; D. Dolinko, "Some Thoughts on Retributivism"; C. Nino, "A Consensual Theory of Punishment"; T.M. Scanlon, "Punishment and the Rule of Law". R. Nozick, Philosophical Explanations, 366.

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as Nozick puts it, "a common structure".16 They inflict harm or deprivation for a reason. Retribution and vengeance harm those who in some sense have it coming to them. Following Nozick's brief but suggestive analysis, I propose that there are at least six ways in which retribution differs from revenge. 3.1

Retribution Addresses a Wrong

First, as Nozick observes, "retribution is done for a wrong, while revenge may be done for an injury or slight and need not be done for a wrong".17 I interpret Nozick to mean retribution metes out punishment for a crime or other wrongdoing while revenge may be exacted for what is merely a slight, an unintended injury, an innocent gaze, or shaming in front of one's friends. 3.2

Retribution is Constrained

Second, Nozick also correctly sees that in retribution there exists some "internal" upper limit to punishment while revenge is essentially unlimited.18 Lawrence Crocker concurs: "an absolutely central feature of criminal justice" is to place on each offense "an upper limit on the severity of just punishment".19 This limitation "is the soul of retributive justice". ° It is morally repugnant to punish the reluctant foot soldier as severely as the architects, chief implementers, or "middle management"21 of atrocities. Retribution provides both a sword to punish wrongdoers and a shield to protect them from more punishment than they deserve.22 In contrast to punishment, revenge is wild, "insatiable", and unlimited. After killing his victims, an agent of revenge may mutilate them and incinerate their houses. As Nozick observes, if the avenger does restrain himself, it is done for "external" reasons having nothing to do with the rights or dignity of his victims. His rampage may cease, for instance, because he tires, runs out of victims, or intends to exact further vengeance the next day.23 Notably, Martha Minow and others subscribe to a different view. Minow suggests that retribution is a kind of vengeance, but curbed by the intervention of neutral parties and bound by the rights of individuals and the principles of proportionality. Seen in this light, in retribution vengeful retaliation is tamed, balanced, and recast. It is now a justifiable, public response that stems from the "admirable" self-respect that resents injury by others. While Minow's view deserves serious consideration, Nozick, I think, gives us a picture of vengeance - and its fundamental difference from retribution - that better matches our experience. Precisely because the agent of revenge is insatiable, limited neither by prudence nor by what the wrongdoer deserves, revenge is not something admirable that goes wrong. The person seeking revenge thirsts for injury that knows no 16 17 18 19 20 21 22 23

Ibid., 368. Ibid., 366. Ibid., 367. L. Crocker, 'The Upper Limits of Punishment", 1060. Ibid. B. Berkeley, "Aftermath: Genocide, the Pursuit of Justice and the Future of Africa", 14,28. L. Crocker, "The Upper Limits of Punishment", 1061. S. Coll, "Peace without Justice".

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(internal) bounds, has no principles to limit penalties. Retribution, by contrast, seeks not to tame vengeance but to excise it altogether. Retribution insists that the response not be greater than the offense; vengeance insists that it be no less and if possible more. Minow attempts to navigate "between vengeance and forgiveness", but she does so in a way that makes too many concessions to vengeance. She fails to see unequivocally that retribution has essential limits.24 Vengeance has no place in the courtroom or, in fact, in any venue, public or private. 3.3

Retribution is Impersonal

Third, vengeance is personal in the sense that the avenger retaliates for something done antecedently to her or her group. In contrast, as Nozick notes, "the agent of retribution need have no special or personal tie to the victim of the wrong for which he exacts retribution".25 Retribution demands impartiality and rejects personal bias, while partiality and personal animus motivate the "thirst for revenge". The figure of Justice blindfolded (so as to remove any prejudicial relation to the perpetrator or victim) embodies the commonplace that justice requires impartiality. Justice is blind - that is, impartial - in the sense that she cannot distinguish between people on the basis of familiarity or personal ties. This not to say, however, that justice is impersonal in the sense that she neglects to consider an individual's traits or conduct relevant to the case. Oddly, Tutu suggests that the impartiality or neutrality of the state detracts from its ability to deal with the crimes of apartheid. He defends the TRC because it is able to take personal factors into account. He writes: One might go on to say that perhaps justice fails to be done only if the concept we entertain of justice is retributive justice, whose chief goal is to be punitive, so that the wronged party is really the state, something impersonal, which has little consideration for the real victims and almost none for the perpetrator (54). Although justice eliminates bias from judicial proceedings, it may be fair only if it takes certain personal factors into account. Because Tutu confuses the impersonality or neutrality of the law with an indifference to the personal or unique aspects of a case, Tutu insists that judicial processes and penalties give little regard to "real victims" or their oppressors. It is true that if victims are called to testify, defense attorneys may treat them disrespectfully. In a deeper sense, however, the trial affirms the dignity of the victim, because the judicial proceeding is the proper forum to denounce the violation of the victim's humanity and vindicate her rights. The state, with its impersonal laws, has pledged to protect, vindicate, and restore the rights of a human being. Further, the impersonal rule of law applies to wrongdoers as well. If and when the accused is found guilty, verdicts and sentencing should take into account reasonable excuses or mitigating circum24

25

Minow rightly claims that "retribution needs constraints" but leaves an open question whether these come from the ideal/practice of retribution itself or from "competing ideals such as mercy and moral decency". (M. Minow, Between Vengeance and Forgiveness, 12). That only wrongdoers should be punished and that they should get no more than they deserve, builds constraint right into the retributive idea. On the basis of consequential ist and other considerations, such as protecting a fledgling democracy from a military coup, punishment might be further limited, delayed, and even set aside. R. Nozick, Philosophical Explanations, 367.

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stances. Hence, retribution's shield protects the culpable from overzealous prosecution and overly severe punishment. There is also room for leniency and even mercy when a judge (or executive), to the extent permitted by law, either reduces the perpetrator's punishment to better match his degree of culpability or takes into account personal conditions as advanced age, dementia, or illness.26 Fair trials and just punishments, then, consider relevant personal factors. At the same time, however, fairness demands that bias must be eliminated from judicial proceedings themselves. 3.4

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ethnic group might, for instance, take revenge on members of another ethnic group. However, a state or international criminal court could properly mete out retribution only to those individuals found guilty of rights abuses, not to all members of the offending ethnic group. In undermining the notion of collective guilt, just retribution has the potential to break the cycle of revenge and counter-revenge. As Neier observes: Advocates of prosecuting those who committed crimes against humanity in ex-Yugoslavia have argued that the effect is to individualize guilt. What they have in mind, of course, is criminal guilt. Some of the strongest voices advocating this - all strong supporters of the tribunal - have come from inside the former Yugoslavia. They and others have maintained that in a territory where violent ethnic conflict has taken place three times in the twentieth century, it is crucial to break the cycle of the collective attribution of guilt. Serbs, as a people, did not commit mass murder, torture, and rape in Croatia and Bosnia; rather, particular Serbs, and also particular Croats and Muslims, committed particular crimes. If those directly responsible are tried and punished, the burden of blame will not be carried indiscriminately by members of an entire ethnic group. Culpability will not be passed down from generation to generation. Trials will single out the guilty, differentiating them from the innocent.31

Retribution Takes No Satisfaction

A fourth distinction between retribution and revenge concerns the "emotional tone" that accompanies - or the feelings that motivate - the infliction of harm. Agents of revenge, claims Nozick, get pleasure, or we might say "satisfaction", from their victim's suffering. Agents of retribution may either have no emotional response at all, be distressed by having to inflict pain ("this hurts me more than it hurts you"), or take "pleasure at justice being done".27 Adding to Nozick's account and drawing on the work of political theorists Jeffrie Murphy and Jean Hampton, I add that a "thirst for justice" may - but need not - arise from moral outrage over and hatred of wrongdoing. 3.5

Retribution is Principled

Fifth, Nozick claims that what he calls "generality" is essential to retribution but may be absent from revenge. By this term, Nozick means that agents of retribution who inflict deserved punishment for a wrong are "committed to (the existence of some) general principles (prima facie) mandating punishment in other similar circumstances".29 If I am a Kosovar committed to retributive justice, I believe that an Albanian who violates the rights of a Serb deserves the same upper limit of punishment - if the act and culpability is the same - as the Serb who violates the rights of a Kosovar. In contrast, the Kosovar seeking revenge is committed to no principles and is motivated solely by the desire to retaliate without limit against his Serbian foe. He has no moral reason to avoid double standards or to urge prosecution of his fellow Kosovars for atrocities committed against Serbs.30 3.6

Retribution Rejects Collective Guilt

Nozick, I believe, helpfully captures many of the contrasts between retribution and revenge. To these, I add a sixth distinction. Mere membership in an opposing or offending group may be the occasion of revenge, but not of retribution. Retributive justice differs from vengeance, in other words, because it extends only to individuals and not to the groups to which they belong. In response to a real or perceived injury, members of one 26 27 28 29 30

M. Nussbaum, Sex and Social Justice. R. Nozick, Philosophical Explorations, 367. See J.G. Murphy and J. Hampton, Forgiveness and Mercy; J.G. Murphy, "Retributive Hatred". R. Nozick, Philosophical Explorations, 368. See below for the way in which traditional Balkan honor codes may present mixed cases of collective guilt and reprisals calibrated to earlier harms.

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No trial, of course, can guarantee that it will find the innocent to be innocent and the

guilty to be guilty. Although Tutu finds adversarial cross examination callous and disrespectful of victims called to testify, such procedures minimize the risk that the innocent are convicted and maximize the probability that the guilty receive their just deserts. Only then is justice truly done. Since collective guilt has no place in an understanding of retributive justice, revenge and retribution should not be conceived as equivalent. Tutu makes precisely this mistake. Following the Hegelian dictum "first distinguish, then unite", Nozick promptly concedes, as he should, that vengeance and retribution can come together in various ways. Particular judicial and penal institutions may combine elements of retribution and of revenge. The Nuremberg trials, arguably, were retributive in finding guilty and punishing some Nazi leaders, punishing some more than others, and acquitting those whom it found not guilty as charged. But Tutu is right to say that the Nuremberg precedent was contaminated, compromised by revenge or "victor's justice". As he notes, Nuremberg used exclusively allied judges and failed to put any allied officers in the dock. However, Tutu neglects to affirm the achievements of Nuremberg: it vindicated the notion of individual responsibility for crimes against humanity and defeated the excuse that one was "merely following orders". One reason that Nuremberg is an ambiguous legacy is that it had both good (retributive) and bad (vengeful) elements.32 Customary practices also may combine both retribution and revenge. Consider, for example, those killings in the Balkans that are said to be due to "blood and vengeance"33 and are regulated by a medieval honor code or kanun.34 In some of these cases, one or more members of one group (an extended family or ethnic group, for instance) inflict harms on some member(s) of another group in retaliation for an earlier harm. On the one hand, it seems that the notion of collective guilt motivates vengeful retaliation. 31 32 33 34

A. Neier, War Crimes, 211. See also M. Minow, Between Vengeance and Forgiveness. 40. See D. Luban, 'The Legacies of Nuremberg"; A. Neier, War Crimes, 15-18; M.J. Osiel, Obeying Orders. Ch. Sudetic, Blood and Vengeance. S. Anderson, 'The Curse of Blood and Vengeance".

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For instance, Leka Rrushkadoli, an Albanian villager, explains why he avenged the death of his father by in turn killing the son of his father's killer: "By the kanun, any of the Lamthis were equal, just so long as one of them paid. I saw Shtjefen first, so he paid."35 On the other hand, this same honor code does constrain or limit - albeit in ways that appear excessive - the number and kinds of injuries permissibly inflicted on members of an offending group. For example, Leka Rrushkadoli's two sons assert their interpretation of the kanun's requirements: "By the kanun, the very worst crime is to kill someone inside your house, no matter the circumstances or how it started.... For killing our father inside their house, they [the Lamthis] owe us three deaths."36 Likewise, both the thirst for retribution and the thirst for vengeance also may motivate those who impose judicial penalties. Suppose a black South African judge, committed to just deserts, correctly finds an Afrikaner defendant guilty of a human rights violation. Then, yielding to vengeance, he unfairly metes out an excessively severe punishment. This is not a case in which the motive "giving what is coming to the wrongdoer" failed to be "curbed" by the rule of law.37 Rather, the judge's commitment to (and desire for) just deserts was not as strong as his thirst for revenge. It is all too common, of course, for the talk of retributive justice to disguise vengefulness. From these various mixtures of retribution and revenge it does not follow that there is no distinction between the two. Judges, juries, and others responsible for justice must exercise virtue, and judicial and penal institutions must be shaped in ways that minimize opportunities to take revenge. 4. Is Vengeance Morally Wrong? What of Tutu's third premise that vengeance is morally wrong? When I shift the focus from vengeance to the agent of revenge, I accept Tutu's premise. Unlike the agent of retribution, the agent of revenge does wrong, or at least he is morally blameworthy. He retaliates and inflicts an injury without regard to what the person impartially deserves. If the penalty happens to fit the crime, it is by luck; the agent of revenge is still blameworthy since he gave no consideration to desert, impartiality, or generality.38 If, as is more likely given the limitless nature of revenge, the penalty is more excessive than the crime, the agent of revenge is not only culpable but also his act is morally wrong. Nonetheless, Tutu's overall argument against vengeance is unsound since two of its 35 36 37 38

Ibid., 15. Ibid. M. Minow, Between Vengeance and Forgiveness, 10, 12. In the film Eye for an Eye (Paramount, 1996) the character played by Sally Field takes justice into her own hands when a court dismisses (incorrectly, she believes) the case against a man whom she (and we) believe is guilty of raping and killing her teenage daughter. When the police make clear that they have no case against the suspect, even after he rapes and kills again, the Field character lures the (suspected) rapist-murderer to break into her house and then kills him in an act of staged and then real - self-defense. As we assess the moral character of the agent, we are at least uneasy about her private vengeance and perhaps hold her blameworthy. She has taken justice into her own hands and, by killing the suspect, has perhaps gone beyond the upper limit of punishment. And yet we also judge that the slain killer deserved severe punishment - if not death - or at least that the "pay back" was not wrong. We find the outcome fitting not only because the killer will not kill again, but because severe punishment probably coincides with what the court should have decided. Although not uncomplicated, the case illustrates the idea that an agent of revenge might be morally blameworthy and yet - pace Tutu - the vengeful act not clearly wrong.

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premises are not acceptable. 5.

The Reconciliation Argument

Tutu proposes a second moral argument against the "Nuremberg trial paradigm" for South Africa's transition and others like it. Tutu rejects judicial justice not only because he alleges it is vengeful and revenge is intrinsically wrong but also because punishment, he claims, prevents or impedes reconciliation. He understands reconciliation as "restorative justice", the highest if not the only goal in South Africa's reckoning with past wrongs. Tutu defends amnesty and forgiveness as the best means to promote reconciliation. In this consequentialist argument, I address both the moral desirability of the end and the practical efficacy of the two sets of means - amnesty and forgiveness, on the one hand, and trial and punishment, on the other. 6. 6.1

Three Concepts of Reconciliation Ubuntu

What does Tutu mean by the vague and not infrequently contested term "reconciliation" and its synonym "restorative justice"? Tutu explicitly defines restorative justice (in contrast to retributive justice) as reconciliation of broken relationships between perpetrators and victims: We contend that there is another kind of justice, restorative justice, which was characteristic of traditional African jurisprudence. Here the central concern is not retribution or punishment. In the spirit of ubuntu, the central concern is the healing of breaches, the redressing of imbalances, the restoration of broken relationships, a seeking to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community that he has injured by his offense (54-55). Although Tutu in this passage uncharacteristically leaves room for punishment, he understands the "central concern" of restorative justice as the reconciliation of the wrongdoer with his victim and with the society he has injured. The wrongdoing has "ruptured" earlier relationships or failed to realize the ideal of "ubuntu". Ubuntu, a term from the Ngunui group of languages, refers to a kind of "social harmony" in which people are friendly, hospitable, magnanimous, compassionate, open, and nonenvious (31).39 Although Tutu recognizes the difficulty of translating the concept, it seems to combine the Western ideal of mutual beneficence, the disposition to be kind to others, with the ideal of community solidarity. Each benefits when others do well; each "is diminished when others are humiliated or diminished ... tortured or oppressed, or treated as if they were less than who they are" (31).

39

Discussing the sources of Tutu's theology and the meaning of ubuntu, in A Country Unmasked (362), Boraine cites the following words of Anton Lembede, the founding president of the ANC Youth League: "[The African] regards the universe as one composite whole, an organic entity, progressively driving towards greater harmony and unity whose individual parts exists merely as interdependent aspects of one whole realising their fullest life in the corporate life where communal contentment is the absolute measure of values. His philosophy of life strives towards unity and aggregation, towards greater social responsibility" (quoted in P. Dreyer, Martyrs and Fanatics, 154).

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Tutu regards "social harmony" or "communal harmony" as the summum bonum, or highest good. He concedes that South Africa must in some way "balance" a plurality of important values - "justice, accountability, stability, peace, and reconciliation" (23). Whatever "subverts" or corrodes social harmony, however, "is to be avoided like the plague" (31). Presumably, whatever maximizes social harmony is morally commendable and even obligatory. Tutu may believe that ubuntu presents so lofty an ideal that no one would question its justification or importance. In any case, he offers little argument for its significance or supremacy. He does seek to support it by calling attention to its African origins. He also remarks that, while altruistic, ubuntu is also "the best form of self-interest", for each individual benefits when the community benefits. As it stands, neither defense is persuasive. The evil character of apartheid, also a South African concept, is not dependent on its South African origins. Similarly, the geographical origin of ubuntu does not ensure its reasonableness. Further, although individuals often benefit from harmonious community relationships, the community also at times demands excessive sacrifices from individuals. Moreover, dissent or moral outrage may be justified even though it disrupts friendliness and social harmony. Recall that Tutu offers practical objections - as well as moral ones - to seeking retributive justice against former oppressors. He does not consider the practicability of ubuntu, however, as a goal of social policy. He does not discuss, for example, what to do with those whose hearts cannot be purged of resentment or vengeance. Nor does he explain how society can test citizens for purity of mind and heart - how it can determine who has succeeded and who has failed to assist society toward this supreme good. 6.2

Nonlethal Coexistence

Tutu's concept of reconciliation can be compared critically to two other versions of social cooperation: (i) "nonlethal coexistence" and (ii) "democratic reciprocity". In the first, reconciliation occurs just in case former enemies no longer kill each other or routinely violate each other's basic rights. This thin sense of reconciliation, attained when cease fires, peace accords, and negotiated settlements begin to take hold, can be a momentous achievement. In Kosovo following NATO intervention, for example, observers agreed that the best that could be hoped for, at least as a medium term goal, was not a socially harmonious '"multiethnic society' but 'peaceful coexistence' among largely separated communities".40 Achieving even this minimal goal in Kosovo in 2000, given both Albanian and Serb thirst for revenge (and counter-revenge) and the complete absence of "an effective structure of law, judges, courts, and prisons",41 was extraordinarily difficult.42 Reconciliation as nonlethal coexistence - however difficult to achieve - demands significantly less and is easier to realize than Tutu's much "thicker" ideal that requires mutuality and forgiveness. Societies rarely, if ever, choose between harmony and mere

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T.G. Ash, "Kosovo", 50. Ibid. A hopeful sign that reconciliation as peaceful co-existence may be giving way to reconciliation as democratic reciprocity, occurred in the Kosovo elections of November 2001, when a surprising number of Serbs voted and an Albanian was elected who is committed to a pluralistic society.

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toleration. Historically, societies have to choose between toleration among contending groups and the war of each against all. 6.3

Democratic Reciprocity

A more demanding interpretation of reconciliation - but one still significantly less robust than Tutu advocates - is "democratic reciprocity". 43 In this conception, former enemies or former perpetrators, victims, and bystanders are reconciled insofar as they respect each other as fellow citizens. Further, all parties play a role in deliberations concerning the past, present, and future of their country. A still-divided society will surely find this ideal of democratic reciprocity difficult enough to attain - although much easier than an ideal defined by mutual compassion and the requirement of forgiveness. Some would argue, for instance, that there are unforgivable crimes or point out that a government should not insist on or even encourage forgiveness, since forgiveness is a matter for victims to decide.44 Not only is Tutu's ideal of social harmony impractical, but it is also problematic because of the way it conceives the relation between the individual and the group. Tutu's formulation of ubuntu either threatens the autonomy of each member or unrealistically assumes that each and every individual benefits from the achievements of a larger group. Sometimes individuals do benefit from social solidarity. But life together is often one in which genuinely good things conflict, such as communal harmony and individual freedom, my gain and your gain. In these cases, fair public deliberation and democratic decision making are the best means to resolve differences. A process that allows all sides to be heard, encourages all arguments to be judged on their merits, and forges policies that no one can reasonably reject - such a process respects public well-being, individual freedom, and a plurality of values.45 This analysis of alternative conceptions of reconciliation not only shows that Tutu's ideal is unrealistic but also that it pays insufficient attention to individual freedom, including the freedom to withhold forgiveness. In making social harmony the supreme good, Tutu unfortunately subordinates - without argument - other important values, such as truth, compensation, democracy, and individual accountability. In some contexts, social harmony - if it respects personal freedom and democratic deliberation should have priority. In other contexts, society may pursue other equally important val43

44 45

See D.A. Crocker, "Civil Society and Transitional Justice", "Reckoning with Past Wrongs", and 'Truth Commissions, Transitional Justice, and Civil Society"; J. Bohman, Public Deliberation; A. Gutmann and D. Thompson, Democracy and Disagreement; A. Gutmann and D. Thompson, 'The Moral Foundations of Truth Commissions"; A. Gutmann and D. Thompson, "Why Deliberative Democracy Is Different"; J. Bohman, W. Rehig, et al., Deliberative Democracy. See M. Minow, Between Vengeance and Forgiveness, 20f, 115, 155, n. 65. A fourth and "epistemological" ideal of reconciliation should also be mentioned, one that like Tutu's model "social harmony" threatens individual freedom. S. Dwyer, "Reconciliation for Realists", argues that what we should mean by reconciliation and what a society in transition should aim for is a consensual narrative that settles accounts with past evil by forging a single narrative about what happened and why. Truth commissions, historians, and even judicial processes might contribute to such a "reconciliation" with the past. While such interpretative agreement is arguably desirable and might be aspired to, it is unlikely to be realized unless promoted by morally problematic means such as coercion or indoctrination. The most that democratic reciprocity may be able to achieve is an agreement to disagree on certain matters and a mutually respectful compromise on others.

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ues, for example, justice, which might require a society to indict, try, sentence, and punish individuals who violated human rights. If social harmony is judged to have priority over other values, that judgment should emerge not from a cultural, theological, or philosophical theory but from the deliberation and democratic determination of citizens. 7. Means of Reconciliation Tutu claims that in South Africa amnesty and forgiveness have maximized the summum bonum of reconciliation as social harmony, while trials and punishment would only have thwarted reconciliation. Even stronger, as the title of his recent volume suggests, without forgiveness (coupled with amnesty), not only is there no reconciliation, there is "no future". Unless victims offer - and their abusers accept - forgiveness, former enemies will destroy each other and their society. Can these empirical claims stand up to scrutiny? To answer this question, it is important first to consider the South African tool of amnesty and also what Tutu means by "forgiveness". Many Latin American governments guilty of human rights abuses have granted unconditioned immunity to many of their leaders, military personnel, and police. South Africa's Truth and Reconciliation Commission (TRC) has operated under a different model. The TRC's Amnesty Committee has awarded amnesty to very few human rights violators. Recall that the TRC granted amnesty if and only if the applicant has shown that his act(s) of commission or omission fulfill three conditions: (i) the act was chosen to advance a political objective (for instance, defense of apartheid or destruction of apartheid); (ii) the means employed were proportional to the end; and (iii) the perpetrator fully disclosed to the TRC the truth about the act. The applicant need not express remorse, confess moral guilt, or request to be forgiven. An (alleged) human rights perpetrator - whether free, in hiding, indicted, sentenced, or serving time - had two options. He could have chosen not to face the TRC, a choice made by many suspected or imprisoned perpetrators. However, he then ran the risk that he would be implicated by the testimony of others and either face prosecution and possible imprisonment, or, if already imprisoned, an even longer prison term. Alternatively, a wrongdoer could have applied for amnesty. Regardless of whether amnesty was granted or refused, his appearance before the TRC likely would have resulted in some kind of social opprobrium. If he lied to the TRC or failed to fulfill one of the other two conditions, then he risked denial of amnesty and the possibility of prosecution and litigation. If, however, the TRC judges that the wrongdoer met all conditions, he would go free (if already imprisoned) and/or receive legal protection from future legal proceedings. The TRC's Amnesty Committee received 7,112 amnesty applications, many from police but disappointingly few from political leaders or military personnel. By November 1, 2000, the Committee had refused amnesty to 5,392 applicants (77 percent) and granted it to only 849 (12 percent). (Two hundred and forty-eight applications were withdrawn, 54 partly refused, 37 were duplicates, 142 are in chamber, and 88 are scheduled for decision).46 In its report, the TRC recommended that "prosecution should be

46

See TRC website, http://www.truth.org.za/PR/1999/pr991209a.htm, and M. Popkin and N. Bhuta, "Latin American Amnesties in Comparative Perspective", 120.

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considered" for those persons who had not applied for amnesty or were denied amnesty.47 Consider now the second element in the "amnesty-forgiveness" complex. Tutu understands personal "forgiveness" in relation to a Reformation concept of divine grace. For him, forgiveness is completely unconditional; the wrongdoer's desert or merit contrition, pleas for forgiveness, making amends, transformation - is entirely irrelevant. Forgiveness is also supererogatory. The victim who forgoes his legal rights to press claims and instead grants forgiveness, expresses, according to Tutu, the virtue of "breathtaking magnanimity" (10) and "remarkable generosity of spirit" (145). Tutu repeatedly marvels at those - esp. Nelson Mandela - who have willingly waived their right to make legal claims, setting aside their great personal suffering and freely offering the gift of forgiveness. Finally, drawing a distinction between the (divine) hate of the sin but redeeming love for even the worst sinner, Tutu maintains that there are no unforgivable perpetrators, for each has the potential to accept forgiveness. Given the South African policy of amnesty and Tutu's ideal of forgiveness, one can ask the extent to which the South African combination of amnesty and forgiveness has contributed to reconciliation. Further, one wonders whether South Africa would have thwarted or advanced reconciliation if it had relied more on trial and punishment and less on the TRC. If South Africa prosecutes those who either never applied for amnesty or were refused it, one can only speculate about what effects such efforts will have on reconciliation. Finally, one wonders if reconciliation is best achieved by granting amnesties, or whether national or international tribunals are the better course of action. These questions are difficult to answer for at least three reasons. First, the empirical evidence with respect to South Africa has been largely anecdotal; little systematic data examines the TRC's use of amnesty and forgiveness in promoting reconciliation. More generally, few empirical studies compare the effects in different countries of the various types and forms of tools - including amnesties, truth commissions, museums, and trials - for reckoning with past wrongs. Second, one must remember that just because repaired relationships might have followed after forgiveness was offered and prosecution forgone, this does not prove that forgiveness without trials somehow caused whatever healing occurred. Further, since the TRC granted relatively few applications for amnesty and in its report urged prosecution of those denied amnesty, one cannot know the effect the threat of future prosecution may have in achieving reconciliation. If victims believe that there is a good chance that justice will be done rather then ignored or denied, they are more open to reconcile with their abusers. Third, to assess - albeit provisionally and speculatively - the relative impacts of amnesty-forgiveness and trial-punishment on reconciliation, we must do so in relation not only to ubuntu but also to the two other senses of reconciliation: peaceful coexistence and democratic reciprocity. 7.1

Means to Peaceful Coexistence

If reconciliation is conceived as no more (and no less) than peaceful, nonlethal coexistence, then the TRC's amnesty device clearly had some initial success. Without the negotiators' agreement on amnesty, the transition from an apartheid government to democratic elections and an African National Congress (ANC)-controlled successor government likely would not have occurred. If negotiations had broken down and violence had 47

Ibid. See also Truth and Reconciliation Commission, Final Report, 309.

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ensued, it was, as Tutu argues, reasonable to suppose that a "blood bath" or "comprehensive catastrophe" (20) would have resulted. Most observers believe that the agreement on conditional amnesty (in exchange for truth) contributed to averting such nightmare scenarios and, perhaps, when coupled with forgiveness, ushered in the "miracle" of South Africa's relatively peaceful and democratic transition. The story, however, is more complicated. Although Tutu describes cases in which confessed violators asked for and received amnesty and victims in turn granted forgiveness, he provides no evidence that these strategies themselves reduced racial and class conflict. Furthermore, even if one grants the pacifying effects of amnesty-forgiveness, these beneficial consequences may prove short lived. If either side comes to believe that the other lied in its testimony or was insincere in offering or accepting forgiveness, social peace will deteriorate. One may question, however, whether the many people other than those who offered and received forgiveness ultimately were satisfied. Even Tutu reluctantly admits that many people on both sides of the apartheid divide believe that the state's failure to achieve retributive justice increases animosity and even justifies taking justice into one's own hands. Private acts of vengeance are particularly likely when victims or their families believe that justice has not been done. As Richard Goldstone reminded the delegates at the 1998 Rome Conference (which agreed to establish a permanent international criminal court), "only by bringing justice to victims could there be any hope of avoiding calls for revenge and that their hate would sooner or later boil over into renewed violence."48 Although the high crime levels in South Africa undoubtedly have many sources - including extreme and widespread poverty - it is plausible that amnesty coupled with forgiveness has helped to undermine peaceful coexistence. When victims, bystanders, and perpetrators believe that killers neither deserve to be forgiven (at least until after they are punished and make reparation) nor maintain their positions of social privilege, then amnesty-forgiveness may deepen social polarization rather than reduce it. By contrast, if perpetrators of human rights violations get something of what they have coming to them, then former enemies have a reason to renounce vengeance and live together peaceably. Aryeh Neier, president of the Open Society Institute, summarizes some evidence from Bosnia: Peaceful coexistence seems much less likely if those who were victimized see no one called to account for their suffering. In such circumstances the victims or their ethnic kin may take revenge themselves, in the same way victims of an ordinary crime might respond if they see no effort by the state to prosecute and punish the criminal. ... Justice provides closure; its absence not only leaves wounds open, but its very denial rubs salt in them. Accordingly, partisans of prosecutions argue, peace without justice is a recipe for further conflict.49 It is important to stress that the reconciling power of justice occurs not as a result of just any trial and punishment but only when both trial and punishment are seen as fair. Although international affairs scholar Gary Jonathan Bass, in his recent Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, argues that although the causes of a defeated Germany's transition (after World War II) to a unified democracy and reintegration into the world community were complex, the procedurally-fair Nuremberg Tri-

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R J . Goldstone, For Humanity, 130. A. Neier, War Crimes, 212f.

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bunal was an important factor.50 In contrast, following World War I, the Allied-mandated but locally-run war crime trials in Leipzig and Constantinople whitewashed, respectively, alleged German war criminals and Turks accused of massacring Armenians. The Allies rejected both tribunals as farces while Germans and Turks resented the trials as expressions of their enemies' vindictiveness. The trials contributed to an anti-Allies backlash that only deepened the bitterness between former enemies.51 The lesson is clear: only when its means and ends are fair does penal justice have the power to reduce conflict. A more general rejoinder to Tutu's optimism about amnesty coupled with forgiveness is worth mention. When wrongdoers receive amnesty and are offered forgiveness instead of being justly punished, the effect is likely to strengthen what Latin Americans call a "culture of impunity".53 The deterrent effect of prosecution and punishment is weakened when people believe they can break the law and get away with it.54 In Africa, this lesson has had calamitous consequences. In July 1999, the United Nations, seeking to end the civil war in Sierra Leone, arranged peace accords that included amnesty and high government positions for Foday Sankoh, leader of the main rebel group, and three of his lieutenants. Sankoh's forces are responsible for such horrendous crimes as mutilations, gang rape, and forcing children to massacre their own families. This award of amnesty, as Peter Kakirambudde of Africa Human Rights Watch remarks, "shook the concept of accountability to the core"55 and paved the way for the worst kinds of atrocities. His prediction is dire: "For the rest of Africa, where there are rebels in the bush, the signal is that atrocities can be committed - esp. if they are frightening atrocities. The lesson to other rebels is that half measures will not do." Sankoh himself learned the lesson well. When Sierra Leone's coalition government collapsed ten months after the amnesty, Sankoh - emboldened by impunity - resumed the slaughter of his countryman and took 500 UN peacekeepers hostage, killing seven of them. Sierra Leone, the UN, and the US have only begun to learn their own lesson. Acknowledging that amnesty only encouraged Sankoh to recommence and widen his atrocities, Sierra Leone's new government arrested him, and the UN approved an international criminal tribunal for Sierra Leone. Yet Sierra Leone's instability continues. We have not yet seen the end of the damage ensuing from an ill-advised amnesty. 50 51 52

G.J. Bass, Stay the Hand of Vengeance, 147-205. Ibid, 37-146.' As this article is being finished in December 2001, there is much public debate in the U.S. (and abroad) as to whether alleged perpetrators of the September 11, 2001 terrorist attack should be tried in U.S. courts or international tribunals and, if the former, whether the courts should be civilian or military. After the Bush administration authorized the use of closed U.S. military tribunals as the jurisdiction to try suspected terrorists, many have challenged the likely fairness, perceived fairness, and conflict-reducing potential of military courts in contrast to either U.S. civilian courts or international tribunals. See, for example, A.-M. Slaughter, "AI Qaeda Should be Tried Before the World"; H.H. Koh, "We Have the Right Courts for Bin Laden"; W. Safire, "Kangaroo Courts"; A.R. Gonzales, "Martial Justice, Full and Fair". Apparently responding to public debate and criticism of the military court option, Attorney General John Ashcroft announced on Dec. 11, 2001 that the first person indicted as being part of a terrorist conspiracy would be tried in a U.S. civil court. See D. Van Natta Jr. with B. Weiser, "Compromise Settles Debate Over Tribunal". For an incisive discussion of the constitutional and moral issues, see M.H. Halperin, "Stockade Justice", 13f. 53 Comisionado Nacional de los Derechos Humanos, El dificil irdnsito hacia la deinocracia, 20f. 54 See C. Arnson, "Introduction", lOf; R. Romero and L. Salomon, La reforma judicial. 55 Cited in S. Coll, "Peace without Justice", 27. 56 Ibid.

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dering) peaceful coexistence and not merely the motives with which either tool is emThose contemplating crimes against humanity are deterred - if at all - only when they know such acts seriously risk severe punishment. And such results occur only when the international community establishes stronger ad hoc criminal courts or, even better, a permanent international criminal court, as Bass recognizes: At a minimum, long-run deterrence of war crimes would require a relatively credible threat of prosecution: that is, a series of successful war crimes tribunals that became so much an expected part of international affairs that no potential mass murderer could confidently say that he would avoid punishment. The world would have to set up tribunals significantly more intimidating than the UN's two current courts for ex-Yugoslavia and Rwanda. The proposed ICC would likely help, but only if it somehow receives political support from the same great powers who have largely neglected the ex-Yugoslavia and Rwanda tribunals for so long. 7

Neier argues that although amnesty (and forgiveness) may bring about some healing, it is on a moral par with acceding to the demands of terrorists. Giving in to such demands may save many lives, but acquiescing to terrorist demands "only inspire[s] more terrorism".58 He concludes that "the way to stop terrorists is to ensure that they derive no profit from their acts."59 The best way to diminish the possibility of a repetition of atrocities is to ensure that perpetrators are punished for their wrongdoing. Tutu tries to counter this sort of argument with a marital analogy to argue for unconditioned forgiveness. A victimized spouse, maintains Tutu, should forgive the unfaithful spouse when the latter is contrite and asks for forgiveness (151). Yet even or, perhaps, esp. in the domestic case, I would argue, this sort of grace is too easy unless the adulterer makes amends and reforms his ways. Undemanding forgiveness encourages a repetition of infidelity. Similarly, for the state simply to offer amnesty to perpetrators and for victims unconditionally to forgive them, is to compromise the message of "never again" and promote a culture of impunity. Tutu might respond to this argument as follows. It is true that people sometimes resort to violence when they perceive that justice has not been done, but this unfortunate fact does not count against the view that amnesty-forgiveness is the best way to reconciliation, since these new wrongdoers would be expressing a morally defective motive (vengeance) and, hence, the proponents of amnesty-forgiveness can ignore the lethal effects of revenge. Two rejoinders are appropriate. First, those who thwart peaceful coexistence might do so not from revenge but (at least partly) from moral outrage that justice has been denied. Although, as I have discussed above, hybrid cases exist in which both motives are present, surely some acts that imperil peaceful coexistence are done from a sense of deserved justice rather than vengeance or reprisal. This is particularly true when the existing judicial system fails to hold the guilty accountable or to punish them appropriately. A second response to the above argument takes a different tack. Even if it were solely vengeance that motivated all acts that destroyed peaceful coexistence, such acts would have to be part of any consequentialist accounting that compared amnesty-forgiveness, on the one hand, and "prosecution-punishment" on the other. What matters is the comparison of the relative effectiveness of these two tools in advancing (and hin-

57 58 59

G. J. Bass, Stay the Hand of Vengeance, 295. A. Neier, War Crimes, 107. Ibid.

ployed. 7.2

Means to Democratic Reciprocity

One also can doubt whether South Africa's amnesties coupled with forgiveness contributed to reconciliation in a second and "thicker" sense of "democratic reciprocity". In this conception reconciliation goes beyond peaceful coexistence to include the give-andtake of deliberation and democratic decision-making. One could argue that South Africa's negotiated settlement and amnesty provision made elections possible and thus contributed to democratic reciprocity. Moreover, the TRC, which helped implement the transition from apartheid, employed internal democratic processes and achieved broadbased popular participation. It is unclear, however, that South Africa's victims were democratically represented initially in the negotiations; more importantly, they might not have agreed freely to an arrangement that gave even the worst rights violators the opportunity to exchange amnesty for truth. Tutu argues that the negotiated agreement should be taken as the will of the victims of apartheid, since many of the negotiators were themselves victims, and the ANC gained a resounding victory in the initial (and subsequent) national election (5657). But these arguments are flawed. The fact that some of the negotiators were themselves victims does not guarantee that the victims excluded from the negotiations would have agreed to the same amnesty provisions. As has been the case in Latin America, opponents negotiating a peace accord might postpone the question of amnesty or, were that not possible, exclude particularly heinous crimes or categories of rights violation from the amnesty option. ° Even the 1990 agreement between Chile's Pinochet government and its opponents excluded from the self-amnesty law (which the Pinochet government had passed in 1978) those who took part in a 1976 car bombing in Washington, D.C., which killed former Chilean ambassador Orlando Letelier and his U.S. assistant.61 Moreover, ANC electoral success does not imply endorsement by victims of the amnesty provision. The ANC might have received even more support had provisions for individual amnesty not been part of the negotiated agreement, or if conditions for amnesty had been limited even further. What's more, given the other electoral options, some voters might have voted for ANC candidates but not endorsed the amnesty provision. Although the parents of the brutallymurdered Steve Biko may well have voted for the ANC, they also brought an unsuccessful court challenge against the amnesty provision, forcefully arguing that Biko's murderers be brought to trial. One can also ask how successfully the strategies of amnesty-forgiveness, on the one hand, and prosecution-punishment, on the other, promote the process of democratic reciprocity in contrast to whatever outcomes issue from deliberative procedures. Again, little empirical evidence is available, and one must rely on anecdote and hypothesis. 60

For a comparative discussion of various ways in which Latin American countries have limited amnesty for past perpetrators, see M. Popkin and N. Bhuta, "Latin American Amnesties". 61 Recently the Chilean courts have further limited the 1978 amnesty law. Those who ordered - including Pinochet himself - the "disappearance" of hundreds of Chileans are liable to prosecution today for torture because in 1998 Chile signed the International Torture Convention and Chilean courts have ruled that the torture of those still unaccounted for continues into the present.

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Means to Ubuntu

One wonders whether the South African amnesty mechanism and private acts of forgiveness actually promoted reconciliation in Tutu's preferred sense of social healing and harmony. Results so far are mixed. On the one hand, Tutu recounts wonderful stories of hardened killers who confessed their crimes, expressed remorse, and asked for (and received) forgiveness (150-51). In all likelihood, when confessions are sincere, the granting of forgiveness helps repair personal relationships, esp. in cases where perpetrators undergo an inner transformation or voluntarily pay restitution to their victims. On the other hand, one should be skeptical about how widespread such transformed personal relationships have been. Notably, Nielsen-Market Research Africa found that twothirds of the 2,500 South Africans questioned believed that the TRC had caused a deterioration of race relations in South Africa.62 What might have been the effects on ubuntu if the TRC had given a more robust role to prosecution and punishment? Might not national healing be furthered if South Africa conducts trials of those who were denied (or never applied for) amnesty when these individuals are suspected of planning or executing the most egregious crimes? Many hold the view of philosopher Jean Hampton, among others, that a broken relationship cannot be healed until the perpetrator, who arrogantly violated his victim's dignity, is "humbled", and the victim, who has been degraded, returns to something approaching her proper status.63 Judicial processes, punishment, and the payment of reparations can both bring down rights abusers and properly elevate their victims. An act of forgiveness that ignores proper rectification results in a relationship in which at least the victim - if not the offender - feels that the new relationship is not deserved. Hence, genuine forgiveness may require trial, penalty, and restitution if strong reconciliation among persons is to be achieved.64 Moreover, one can find increasing evidence that fair indictments, trials, sentences, and punishments "stay the hand of vengeance", diminish the likelihood of a cycle of reprisals, and thereby both reduce the polarization between adversaries and help unify 62

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One can plausibly believe that seeing the guilty escape punishment, let alone resume their official - even judicial - positions diminishes the credibility of a new democracy and reduces citizen commitment to it. Moreover, fair judicial processes and deserved punishment would sharply distinguish past injustice and present justice - with the result that most people would strengthen their commitment to democratic institutions that instituted fair prosecutions and sanctions. 7.3

DeUUration

"Only Half of People Feel TRC is Fair and Unbiased: Survey", South Africa Press Association, March 5, 1998. Quoted in P.B. Hayner, Unspeakable Truths, 156. See also ibid., 30, 37, as well as the important research of the Centre for the Study of Violence and Reconciliation, for example B. Hamber et al., Survivors' Perceptions of the Truth and Reconciliation Commission and Suggestions for the Final Report (1998), at http://www.cvsr.org.2a/papers/ papkhul.htm (last visited May 9, 2002); H. Van der Merwe and L. Kgalema, The Truth and Reconciliation Commission. A Foundation for Community Reconciliation? at http://www.csvr.org.2a/ articles/artnch&l.htm (last visited May 9, 2002). J. Hampton, "The Retributive Idea". For a view of forgiveness that captures some elements in the retributive idea, see D. Little, "A Different Kind of Justice". B. Hamber et al., Survivors' Perceptions of the Truth and Reconciliation Commission and Suggestions for the Final Report, 5, 7, 11-14.

the nation. Since Pinochet's arrest in England, threatened extradition to Spain, return to Chile, and possible trial in Chile, more than twenty-five of Pinochet's former officers have been arrested for kidnapping. Former Chilean political prisoners, not blocked by something like South Africa's amnesty agreement, have filed more than 177 criminal complaints accusing Pinochet of torture and kidnapping. Not only did complaints and (prospective) prosecutions not undermine Chile's January 2000 presidential campaign and election, but both candidates - including Joaquin Lavin, a former official in Pinochet's government - said prior to the election that Chilean courts should have jurisdiction over Pinochet and justice should be done. As a New York Times editorial observed: the fact that "none of this has disturbed Chile's fledgling democracy ... suggests that those who feared the destabilizing power of justice underestimated its healing effect."65 Seven months after the election, the Chilean Supreme Court (voting 14-6) stripped Pinochet of his senatorial immunity from prosecution. Although a small band of Chileans desperately search for a strategy to keep him out of the dock, most Chileans believe prosecuting Pinochet would help unify a divided nation as well as consolidate Chile's democracy. It is undeniable that national or international trials - because of insufficient resources and or a lack of will to arrest those indicted (Yugoslav and Rwandan tribunals), scapegoating (U.S. trials after the My Lai Massacre), politicization (Leipzig, Constantinople, Republika Srpska), or overly ambitious prosecutions (Argentina) - have not always had such healing effects.66 In reckoning with past wrongs, trials must be combined with other tools, such as truth commissions, reparations, and judicial reform, to achieve success - and even then the beneficial results will not come quickly. Nuremberg, however, shows that reasonably fair trials and deserved punishment of those most responsible for atrocities help dissolve bitterness and rehabilitate a nation. It might be argued, of course, that the sort of healing that the Times editorialist extols or that Nuremberg achieved is not that of the mutual love and social solidarity enjoyed by family members. Instead, the healing achieved may be the mutual respect and tolerance of fellow citizens who together deliberated and decided on the common good. This kind of reconciliation is a tremendous accomplishment nonetheless. Amnesty -esp. conditional amnesty that is democratically approved - and personal forgiveness may play a role in achieving and sustaining this important goal. Yet, as I have argued, in reckoning with past wrongs, a society must be wary of overestimating the restorative effect of amnesty and forgiveness as well as underestimating the reconciling power of justice. 8.

Concluding Remarks

If my assessments of Tutu's arguments and possible counter arguments are sound, several conclusions follow concerning judicial justice and reconciliation. First, Tutu correctly distinguishes the goal of reconciliation in a fledgling democracy from the goal of penal justice. However, since Tutu inadequately conceptualizes both, they are for him unalterably at odds. For Tutu, punishment is nothing more than vengeful getting even for the wrongdoer's past wrong, while reconciliation requires that the wrongdoer be immune from punishment and unconditionally forgiven for his past wrong. The only 65 66

e" New York Times, January 15, 2000, A18. "New 1 wisi in me i mw.. <- • See G.J. Bass, Stay the Hand of Vengeance.

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prospects, at least for South Africa, were retribution and "a society in ashes", on the one hand, and amnesty combined with forgiveness and reconciliation, on the other. In contrast, I have argued that punishment and reconciliation not only are distinct, but that they are intrinsic goods that may reinforce each other. One can view legal punishment, the state's or international tribunal's intentional imposition of some deprivation, as justified, among other reasons, because it is prima facie just - or, at least, not unjust - to punish the wrongdoer in a way that does not exceed his crime, apart from whatever good consequences also might occur. Further, both moral and practical reasons exist that justify defining reconciliation not as a social harmony which might threaten individual rights - but as peaceful co-existence or "civic friendship" (these words are John Rawls'). Through public deliberation fellow citizens respect each other's rights, are tolerant of differences, and try to reduce disagreements and arrive at compromises that all (or most) can reasonably accept. Considered in this way, each goal also can instrumentally promote the other. Former enemies can agree to live together nonlethally under the rule of law and reduce their remaining differences through public deliberation. This kind of reconciliation can lead to further agreement that it is not wrong to prosecute and punish at least those on both sides who are most guilty of the worst crimes. Likewise, punitive justice can have reconciling power in the sense that upon getting (no more than) what they deserve, perpetrators have set things right and can be reintegrated into society. (This rectification may include - as part of and not a substitute for the punishment - court-ordered restitution of victims). Furthermore, societies and the international community should design institutions in which the ideals of both just punishment and reconciliation are realized simultaneously in various institutions and tools. Fair trials and just punishments not only mete out what wrongdoers deserve and reject a culture of impunity; they also may bring people together as fellow citizens. Unfair trials, unjust verdicts, or excessive punishment, of course, do just the opposite. Adequate truth commissions not only provide the occasion for a society to deliberate about its past but also to recommend prosecution and provide evidence to judicial authorities. The goals of penal justice and reconciliation, then, can reinforce each other and be jointly realized in or effected by the same tools. At the same time, these two goods can also create tensions, since (among other things) morally justified punishment is partially oriented toward the past while reconciliation is an ideal for creating a better future. Unfortunately, in this as in many other cases, all good things do not always go together, and morally costly choices must be made. At least four ways exist to address clashes of these two ideals. First, the creation of new tools can promote the joint realization of just punishment and reconciliation. One example, arguably, is the Spanish indictment and request for the extradition of Pinochet, leading to his subsequent house arrest in England, extradition to Chile, and indictments of Pinochet in Chile. Even if Pinochet never stands trial in his native land, the Spanish, British, and Chilean actions have (i) brought him to "moral ruin";67 (ii) shown that "even former heads of state do not enjoy impunity for crimes against humanity, and may be tried outside the country where the crimes were committed";68 and again (iii)

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I. Allende, "Pinochet without Hatred", New York Times Magazine, January 17, 1999,24. "New Twist in the Pinochet Case".

helped liberate Chileans from some of their former divisions as well as deepened their fragile democracy. A second way to resolve the clash of ideals is by a division of labor. For example, trials and truth commissions can work cooperatively, each responsible for emphasizing one of the two ideals - punishment and reconciliation - but not completely ignoring the other. It is better if neither tool is overloaded with functions that the other can perform better. For example, the International Criminal Tribunal for the Former Yugoslavia has indicted, is trying, and is punishing some middle-level implementers, some high (not yet the highest) military commanders, former Yugoslav president Slobodan Milosevic and other alleged planners of atrocities in Bosnia. In contrast, a proposed truth and reconciliation commission, comprised of representatives of the Serb, Croat, and Muslim communities, could investigate and deliberate together concerning the truth about the past. This kind of investigation and a resultant authorized report would partially settle accounts with the great number of rank-and-file rights violators. Such a report would also go beyond the scope of judicial processes - recognize and applaud those from all sides who found ways to aid their ethnically diverse and endangered neighbors.69 The relations of trials and truth commissions can be complementary in a stronger sense, since each body may enhance as well as supplement the other. Fair trials and punishment may contribute to the reconciliation and truth sought by truth commissions. On the one hand, if victims believe that their testimony might be used by national or international tribunals to bring perpetrators to justice, this knowledge can satisfy the thirst for justice and lead to healing. Moreover, as Hayner argues, "prospects that its documentation could be used for international prosecutions could add weight to a commission's work, focus its targeted investigations, and help shape or clarify its evidentiary standards."70 On the other hand, the evidence that truth commissions unearth may have a positive role to play in judicial proceedings. Moreover, truth commissions, after evaluating the fairness and independence of a country's judicial system, might recommend judicial reform or argue that an international tribunal should have jurisdiction.71 Similarly, a third way to deal with a clash of the two ideals is to embody them sequentially. Among other things, reconciliation was most prominent in the initial stages of both Chile's and South Africa's transitions to democracy. Since 2000, however, the time has been ripe for Chile to prosecute Pinochet's chief lieutenants, if not Pinochet himself.72 Similarly, subsequent to the work of the TRC, one can be hopeful that in the 69 70

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See N.J. Kritz and W.A. Steubner, A Truth Commission for Bosnia and Herzegovina. P.B. Hayner, Unspeakable Truths, 211. This complementarity, of course, is not automatic; for, as Hayner demonstrates, there are "potential areas of tension" as well, for example, the award of amnesty limits the reach of criminal trials and civil litigation. See P.B. Hayner, Unspeakable Truths, 206-212, esp. 208. For a review of Hayner's fine book, see D.A. Crocker, Review of Unspeakable Truths by Hayner and Transitional Justice by Ruti G. Teitel, 152-54. Ibid., 210. Pablo DeGreiff has objected that this sequencing of the ends of retribution and reconciliation might be embraced retrospectively but runs into problems as a matter of forward-looking policy. DeGTeiff remarks, "Announcing to former perpetrators that they will not be prosecuted now, but rather in five years, will not do much to make prosecutions more acceptable to them" or, we might add, to their supporters. (P. DeGreiff, e-mail message, February 15, 2000). This point is indeed worrisome because it seems to be changing the rules of the game during the match as well as keeping a potential indictee in limbo with respect to whether or not he will be indicted and tried. There are two possible strategies to meeting this objection. Authorities could either refrain from adopting sequencing as public policy ("first reconcile and then try"), but later seize it when politically feasible, esp. if political will is determined by democratic deliberation. Alternatively, the sequencing of reconcilia-

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near future South Africa will vigorously indict and bring to trial those who were denied (or never applied for) amnesty.7 Each of these approaches avoids a clash and establishes a reasonable and balanced approach to the goals of just punishment and reconciliation. Notably, Tutu himself justifies South Africa's foregoing of justice by appeal to the ideal of balance: "We have had to balance the requirements of justice, accountability, stability, peace, and reconciliation" (23). The trouble is that the balance that Tutu advocates for South Africa and other societies virtually disregards justice. Even with respect to P.W. Botha, the intransigent and unrepentant former South African president who defiantly rejected a court order to appear before the TRC, Tutu disagreed with those who wanted to see "the leaders of the old dispensation getting a dose of retributive justice" (250). What should be done when no resolution of the clash of values seems possible? Perhaps there are cases when (civil) conflicts cannot end or democratization begin unless or until some sort of amnesty agreement is reached in peace accords or the formation of a new government. Perhaps plans for trials may have to be postponed, abandoned altogether, or restricted to those suspected of the worst crimes. Perhaps nonretributive considerations such as reconciliation or stability will be the basis for imposing less than the punishment deserved. Under circumstances in which a clash of good ends cannot be deferred or avoided, societies and international bodies in a variety of venues should engage in democratic and public deliberation and decide on the best balance or trade off in that particular situation. The choices are not merely between, as Tutu assumes, the immoral world of politics on the one hand and the moral/religious realm of forgiveness and love on the other. Politics can be a sphere in which fellow citizens reason together and make costly choices when it is clear that, at least for now, all good things do not go together. As Washington Post editorialist Jim Hoagland observes: "There is no more important new subject on the international agenda than the necessity of balancing the human need for justice and retribution with the state's interest in stability and reconciliation."74 I would amend Hoagland's point to say that in reckoning with past evil, nations and the international community must strive to realize (among other things) both penal justice and reconciliation and balance them in morally appropriate ways.

Bibliography Amson, C , "Introduction", ed. Arnson, Comparative Peace Processes in Latin America, Stanford University Press, 1999. Ash, T.G., "Kosovo. Was It Worth It?", New York Review of Books, September 21, 2000.

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tion-retribution could be democratically agreed to as a matter of policy, as arguably occurred in South Africa's policy of making those refused amnesty vulnerable to judicial processes. Of deep concern is the possibility that the South African government will have insufficient funds or political will to carry through with the judicial processes called for upon the TRC's denial of applications for amnesty. I owe this point to discussions with Alex Boraine and David Dyzenhaus. J. Hoagland, "Justice for All"; D.M. Tutu, No Future without Forgiveness.

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List of Contributors

David A. Crocker is Senior Research Scholar at the Institute for Philosophy and Public Policy and the Maryland School of Public Affairs (MSPA) at the University of Maryland. Jon Elster is the Robert K. Merton Professor of Social Sciences, Columbia University, Political Science Department. George Fletcher is the Cardozo Professor of Jurisprudence at Columbia Law School. Andreas F0llesdal is Professor of Philosophy, Department of Philosophy, University of Oslo (on leave), Professor, Norwegian Centre for Human Rights, Faculty of Law, University of Oslo, and Research Professor, ARENA-Advanced Research on the Europeanisation of the Nation-State. Chaim Gans is Associate Professor of Law and Director of the Israeli Minerva Center for Human Rights at Tel Aviv University. Axel Gosseries is Post-Doctoral Research Fellow (Belgian National Fund for Scientific Research - FNRS, Belgium), Universite catholique de Louvain. David Heyd is Professor of Philosophy at Hebrew University, Jerusalem. Rahul Kumar is Assistant Professor of Philosophy at the University of Pennsylvania. David Lyons is Professor of Law as well as Professor of Philosophy at Boston University. Jaime Malamud Goti, former Solicitor General to the Supreme Court of Argentina, is Professor of Law at the University of Palermo, Argentina, and Director del Instituto de Investigaciönes "Carlos Nino". Andrei Marmor is Professor of Law and Philosophy at the University of Southern California. Lukas Meyer is Wissenschaftlicher Assistent for Political Theory and Philosophy at the University of Bremen, Institute for Intercultural and International Studies, Germany. Claus Ojfe is Professor for Political Science, Chair for Political Sociology and Social Policy, Institute for Social Sciences, Humboldt-Universität zu Berlin. Paul Patton is Professor of Philosophy at the University of New South Wales, Sydney, Australia. Thomas W. Pogge is Associate Professor of Philosophy at Columbia University.

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Ulrike Poppe is Director for Political Studies and Contemporary History at Evangelische Akademie Berlin-Brandenburg. George Sher is the Herbert S. Autrey Professor of Philosophy, Rice University, Department of Philosophy. David Silver is Associate Professor of Philosophy at the University of Delaware. Ruti Teitel is the Ernst C. Stiefel Professor of Comparative Law at New York Law School. Janna Thompson is Associate Professor at La Trobe University, Victoria, Australia. Christian Tomuschat is Professor of Public Law, International and European Law, Humboldt-Universität zu Berlin. Jeremy Waldron is the Maurice and Hilda Friedman Professor of Law at Columbia Law School and Director of Columbia's Center for Law and Philosophy.