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Excerpted from: David C. Gray, A No-excuse Approach to Transitional Justice: Reparations as Tools of Extraordinary Justice, 87 Washington University Law Review 1043 (2010) (392 Footnotes) (Full Document)


David C Gray“It wasn't me!”

There is, perhaps, no defense claim more fundamental. It reflects the basic proposition that we can only be held to account for what we do and the harm we cause. This intuition is ubiquitous in normative fields of law and moral philosophy, where oceans of ink have been spilled teasing out the nuances and applications of a proposition that all three-year-olds understand: we do not punish people for crimes they did not commit. With few exceptions, we do not hold people liable for harms they did not cause. We do not bind people to agreements to which they have not bound themselves.

Perhaps because the claim that innocence matters is so ubiquitous, or perhaps because it is just True, there is no better way to poke the limbic bear of moral outrage than to hold one person responsible for conduct not his own or to order him to compensate for harms he has not caused. Thence the most basic challenges to theories of vicarious and strict liability--which usually respond by identifying a voluntary act or informed decision that may serve to anchor liability--arise and, thus, our ready willingness to let ten guilty men go free rather than embrace procedures that risk convicting one innocent man.

This quaint little commitment to punish only the guilty and to hold liable only those responsible is also at the heart of contests over reparations. The protest is particularly pronounced in domestic debates about reparations for slavery. Contemporary whites asked to contribute directly or through taxes protest that they have never owned slaves and were born generations after the practice was abolished. Some even point out, with varying degrees of accuracy, that nobody in their family has ever owned slaves. If they have no direct, or at least personal, connection to the abuses, it seems beyond contest that they should not be held responsible for paying compensation objection only amplified by the fact that the proposed beneficiaries were never themselves slaves. These same concerns were cited in the record of a recent Senate Resolution apologizing for slavery and Jim Crow laws, which declined to endorse claims for reparation. While cast historically, these objections are nothing more than the familiar “I didn't do it. It wasn't me.”

Similar objections play a common and powerful role in transitional justice debates. Transitional justice asks what a successor regime committed to democracy, human rights, and the rule of law can and should do to achieve justice for human rights abuses perpetrated by and under an abusive forebear. “Transitional justice is a field on an upward trajectory” that recently has emerged as an interdiscipline in its own right, but the animating question dates back at least to 405 BC after the fall of the twelve tyrants. Contemporary interest in transitional justice reflects the encouraging decline over the last twenty years or so of autocratic states committed to institutionalized human rights violations as part of the “Third Wave” of democratization. In the wake of this tsunami, a number of states have proposed reparations as at least a partial response to past wrongs.

While the atrocities addressed in transitional justice debates are of more recent vintage than the United States' history of slavery, the objections are familiar. Many asked to pay disclaim the past regime and contend that they did not personally commit human rights abuses. Those directly connected to atrocities argue that they relied on existing law, which told them that targeted abuses against a particular group were right, necessary, or at least not illegal. While those in this latter group cannot claim that they did not do it, they can displace responsibility to the state or protest that imposing liability would violate prohibitions against ex post facto enforcement of law. Whether packaged as “I didn't do it” or “I didn't do anything wrong,” the core objection is the same.

Reparations advocates share the foundational belief that only the guilty should be punished and only those responsible can be held liable. Unfortunately, this commitment seems to impose an insurmountable barrier against collective funding of reparations, which is the only realistic way to provide the necessary finances. The halfhearted solution has been to sketch theories of associational responsibility, derivative collective responsibility, or moral taint. These attempts seldom persuade, and for good reason. They run full-force into the individualism fundamental to our common intuitions of blame and responsibility. Other reparations supporters have sought to change the debate by appealing to theories of “restorative justice” that eschew entanglement with the past in favor of a future-oriented focus on reconciliation or redemption. These novel efforts raise their own conceptual concerns. Perhaps worse, they fail to lay any foundation for claims that reparations are imperative and also fail to provide a robust normative justification for any particular form of reparation.

More troubling than these theoretical worries are concerns that reparations do not work. This is the most significant and least addressed objection to reparations. Even where reparations are paid, the money itself is insufficient to the task of reparation. Moreover, recipients frequently remain in a persistent condition of material and social inequality. “Forty acres and a mule,” the reparation promised by General Sherman to former American slaves and codified by Section Four of the Freedmen's Bureau Act, was not even paid, and lesser grants of land, goods, and money certainly did not leave former slaves in a condition of justice. Many now trace the absence and inadequacy of those reparations efforts to contemporary achievement gaps between black and white Americans. Native American groups have, for the most part, fared no better despite large land grants, mineral rights, and sovereign exemptions from state regulations. Reparations paid in South Africa have done almost nothing to improve the lot of black South Africans and arguably have left them in a worse condition, occasioning deep ambivalence with the entire transitional justice process. Some victims of institutionalized human rights abuses have made gains, but seldom if ever due to reparations. For example, contemporary Japanese Americans bear the marks of internment, but, measured by demographic achievement, have made significant economic and social gains in the interim. However, those gains cannot credibly be explained by reparations, which were not paid until 1988 and, at any rate, were minimal and regarded as symbolic by most recipients. Even where the amount of reparation paid is more significant, such as in Argentina, political realities and abiding guilt among survivors concerned with spending “cursed money” limit the capacity of reparations to significantly change the lot of victims or recipients. The simple fact that reparations programs largely fail to achieve any demonstrative gain for victims has largely been ignored in practice and the literature.

This Article proposes a new path. It contends that normative objections to and the practical failures of reparations derive from some combination of two conceptual mistakes. The first is to treat transitional justice generally as a special case of ordinary justice, and reparations in particular as a species of tort claim. The second is to engage in a temporal bias, viewing reparations as either solely retrospective or entirely prospective. In keeping with prior work contending that transitional justice is extraordinary justice, this Article argues that “I didn't do it” is a non sequitur in debates about reparations where the fundamental question is “How do we make it right?” .

Part II provides an overview of the reparations debate. “Reparations” encompasses a variety of potential responses to mass atrocities. This section attempts to bring some order to the debate by charting the potential forms reparations may take alongside their corresponding objections. Part II then describes how these objections depend on one or both of the cited conceptual mistakes: (1) treating reparations as tort claims, or (2) assuming that reparations either are entirely retrospective or entirely prospective.

Part III reviews some of the most common justifications for and defenses of reparations and points out how they too fall victim to one or both of these cognitive mistakes and therefore fail to meet some or all of the most compelling objections to reparations proposals.

Part IV sets the stage for a novel approach to reparations that takes seriously the unique characteristics of transitions and transitional justice. In particular, it argues that transitional justice is Janus-faced and that reparations are liminal tools for addressing the social conditions that lie beneath pretransitional abuses.

. . .

While further elaboration of the approach to reparations as part of a broader transitional justice program must wait for another day, its potential to avoid or moot common objections motivated by ethical individualism is apparent. The goal in transition is not to return from a high-point of mass atrocity to a baseline of persistent injustice--the view that is implied by tort models and counterfactual measures of harm. Rather, the animating justification for transitional justice is to open a society up entirely, to examine and correct the causes of abuse, and to exploit positively the liminal period of transition to achieve the cognitive and structural changes that will ensure peace, justice, and stability going forward. This is an obligation to justice that inheres to every transitional society and to each of its members in the wake of institutionalized human rights abuses. Objections to reparation such as “It wasn't me” that reflect a background commitment to ethical individualism are therefore non sequiturs. For heirs to an abusive paradigm, there simply is no excuse for refusing to make it right.

Assistant Professor of Law, University of Maryland School of Law