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Law and Philosophy

, Volume 14, Issue 2, pp 149–184 | Cite as

Historical rights and fair shares

  • A. John Simmons
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  1. 2.
    I have in this first paragraph already used the languages of “reparation,” “rectification,” and “compensation” as if there were no interesting differences between them. Many will find this objectionable. But the many who agree that there are important differences here seem unable to agree on just what those differences are. Loren Lomasky, for instance, distinguishes “rectification” (“restoring precisely that which was removed”) from “compensation” (“providing something equivalent in value to that which has been lost”) inPersons, Rights, and the Moral Community (New York: Oxford University Press, 1987), p. 142. Onora O'Neill, on the other hand, considers “compensation” and “reparation” (both defined roughly as Lomasky defines “compensation”) as kinds of “rectifications,” with “restitution” as another kind, this last being defined in terms of restoring what obtained before some wrong (“Rights to Compensation,”Social Philosophy & Policy 5 [1987]: 74–75). And Bernard Boxhill distinguishes “compensation” (a “forward-looking” concept) from “reparation” (a “backward-looking” concept, concerned with the righting of past wrongs) in “The Morality of Reparation,” in B. Gross, ed.,Reverse Discrimination (Buffalo: Prometheus Books, 1977), pp. 273–74. I will use “rectification,” “compensation,” and “reparation” loosely here, referring in all cases to that which is due the victim of a wrong in consequence of the wrong. As will become apparent, I regard “restitution” or “restoration” (in O'Neill's sense) as in one sense the ideal of rectification (or “correction”), from which we should depart only when it is impossible to achieve. Thus, the ideal is a return to the pre-wrong condition, with no losses for anyone but the wrongdoer. This ideal is, of course, typically impossible to achieve, so we must aim more generally to secure the conditions that would have obtained in the absence of the wrong. Punishment, another traditional branch of rectificatory or corrective justice, is normally taken to be due the wrongdoer, not the victim, and it will not be discussed here.Google Scholar
  2. 3.
    Robert Nozick,Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 153–55.Google Scholar
  3. 4.
    Ibid., p. 154.Google Scholar
  4. 5.
    David Lyons, “The New Indian Claims and Original Rights to Land,”Social Theory and Practice 4 (1977): 254.Google Scholar
  5. 7.
    In fact, I think that an “original acquisition” theory of property, of a Lockean sort, can be plausibly stated, motivated, and defended from the standard objections. See myThe Lockean Theory of Rights (Princeton: Princeton University Press, 1992), ch. 5, and “Original-Acquisition Justifications of Private Property,”Social Philosophy & Policy 11 (1994): 63–84.Google Scholar
  6. 8.
    “The rectification principle ... seems to be the most problematic part of the entitlement theory. It is certainly an essential part; for, without it, ... if there has been a single injustice in the history of a state, no matter how far back, the state will not be able to achieve a just distribution of goods in the present.” Lawrence Davis, “Comments on Nozick's Entitlement Theory,”The Journal of Philosophy 73 (1976): 839.Google Scholar
  7. 9.
    Nozick,Anarchy, State and Utopia, p. 152.Google Scholar
  8. 10.
    Jeremy Waldron, “Superseding Historic Injustice,”Ethics 103 (1992): 8.Google Scholar
  9. 11.
    To reiterate, we are speaking here only about questions of reparation, which are independent of further questions about whether or what punishment is appropriate for the wrong. It is possible, of course, that reparation or compensation may be due the victim of a wrong simply for the breach of his rights, even when this breach is accompanied by no loss of well-being (or by a gain in well-being). I do not consider such cases here. For discussion, see Lomasky, “Compensation and the Bounds of Rights” and Gerald Gaus, “Does Compensation Restore Equality?,” both in J. Chapman,Compensatory Justice: Nomos XXXIII (New York: New York University Press, 1991), pp. 28, 33, 67, 69–72.Google Scholar
  10. 12.
    Waldron, “Superseding Historic Injustice”: 8–13.Google Scholar
  11. 13.
    Despite Nozick's apparent belief that this is the only real problem. Nozick suggests using nonhistorical patterned principles of distributive justice as “rough rules of thumb” for approximating historical rectification in real world cases where information about the past is incomplete (Anarchy, State, and Utopia, pp. 230–1).Google Scholar
  12. 14.
    Davis, “Comments on Nozick's Entitlement Theory”: 844.Google Scholar
  13. 15.
    This is roughly the analysis of counterfactuals suggested in David Lewis,Counterfactuals (Cambridge: Harvard University Press, 1973).Google Scholar
  14. 17.
    Waldron, “Superseding Historic Injustice”: 13–15. We can, for instance, confidently claim about Native American tribes that, in the absence of the deception and violence that in fact typically caused their loss of territories, they would not have given away or sold the land or resources necessary to the survival of their tribe or culture. This judgment is based not on some simple assumption about the authority of (hypothetical) rational choice, but rather on our knowledge of the actual prior histories of tribal choices and the vitality of their cultures, and on conservative assumptions about background conditions (and thus about the consequences of choice).Google Scholar
  15. 18.
    Anarchy, State, and Utopia, pp. 238, 171–72. See also Lomasky: “Persons' rights are rights to particular performances and are rights over particular items of property” (Persons, Rights, and the Moral Community, p. 142).Google Scholar
  16. 19.
    John Locke,Second Treaties of Government, §27.Google Scholar
  17. 21.
    Historical theories are often criticized for their apparent inability to explain how alienation (transfer) of property rights is even possible. If my labor is mixed with an object, thus preventing any legitimate non-consensual appropriation of the object by another (since taking the object would involve taking my labor as well), why doesn't my labor continue to inhere in the object when I try to alienate my rights to the object, rendering consensual transfer impossible? See Jeremy Waldron, “Superseding Historic Injustice”: 17, andThe Right to Private Property (Oxford: Oxford University Press, 1988), pp. 259–62. The answer, I think, involves reinterpreting the Lockean idea of mixing one's labor with a thing in terms of incorporating that thing into legitimate purposive activities. One's rights over a thing are (in part) determined by its role in our pursuits or projects. Since one purpose we may have for a thing is that it be transferred to another person as a legitimate holding, our purposive incorporation of the thing (our “labor” in it) ends with the transfer. No “residue” of our “labor” persists in the thing, any more than it does when we abandon property, allowing it to “revert to common.”Google Scholar
  18. 22.
    Nozick,Anarchy, State, and Utopia, p. 180.Google Scholar
  19. 23.
    Locke,Second Treatise of Government, §27.Google Scholar
  20. 24.
    Lyons suggests that in such a situation it may be legitimate to require the original castaways to give up their private property altogether. If all the islanders are better served by a system of collective ownership, all may be obliged to pool their resources (“New Indian Claims”: 263). My own view is that mandatory downsizing is the typical requirement in such circumstances, with collective property being a legitimate result only of voluntary joining of individual holdings or of collective purposive activities. To suppose otherwise is, I think, to suppose — mistakenly, in my view — that justifications of property must always beoptimality justifications rather thanpermissibility justifications. See my “Original-Acquisition Justifications of Private Property,” section II. There may, of course, be some things that are not privately appropriable in the first place (because they are indivisible or because fair shares are unusably small, say). Locke, for instance, discusses the English common in these terms. And downsizing may in certain cases result in individual rights in undivided shares. Finally, considerations of charity may in some cases require that private property be surrendered. But while these kinds of possibilities may motivate a voluntary move to collective ownership, I take none of them to be equivalent to that of requiring the nonvoluntary conversion of private to collective property.Google Scholar
  21. 25.
    See, for one among many such arguments, Husain Sarkar, “The Lockean Proviso,”Canadian Journal of Philosophy 12 (1982).Google Scholar
  22. 26.
    Anarchy, State, and Utopia, p. 181.Google Scholar
  23. 28.
    Davis, “Comments on Nozick's Entitlement Theory”: 840–1. As Davis notes, Nozick seems content to employ an indifference standard (earlier in his book) in formulating his Principle of Compensation.Google Scholar
  24. 29.
    Ibid.: 842, 844.Google Scholar
  25. 30.
    Eric Mack, “Nozick on Unproductivity: The Unintended Consequences,” in J. Paul, ed.,Reading Nozick (Totowa: Rowman & Littlefield, 1981), 186–87. See also Robert P. Wolff, “Robert Nozick's Derivation of the Minimal State,” inReading Nozick, p. 86; Jeffrey Paul “Property, Entitlement, and Remedy,”The Monist 73 (1990): 569–71; O'Neill, “Rights to Compensation”: 78–79; Lomasky,Persons, Rights, and the Moral Community, p. 143.Google Scholar
  26. 31.
    “Superseding Historic Injustice”: 24–25.Google Scholar
  27. 33.
    George Sher argues that there are “necessary conditions for desert of compensation which become progressively harder to satisfy over time.” But his arguments are only to the conclusion that entitlements are very likely to diminish over time; and this diminution has nothing to do with the mere passage of time (simpliciter). “Ancient Wrongs and Modern Rights,”Philosophy & Public Affairs 10 (1981): 6, 13.Google Scholar
  28. 34.
    Waldron, “Superseding Historic Injustice”: 18–19.Google Scholar
  29. 35.
    See my discussion of this issue inOn the Edge of Anarchy (Princeton: Princeton University Press, 1993), pp. 111–12.Google Scholar
  30. 36.
    This is roughly the approach taken by Will Kymlicka inLiberalism, Community, and Culture (Oxford: Oxford University Press, 1989). See especially the long footnote on pp. 158–61 in which Kymlicka expresses scepticism about the moral importance of “the fact of original occupancy.” Lyons also concludes that “it is highly doubtful that [Native Americans] have any special claims based upon their distant ancestors' original occupation of the land” (“The New Indian Claims ...”: 268). Waldron seems sympathetic to this approach as well (“Superseding Historic Injustice”: 26–28).Google Scholar
  31. 37.
    A good recent example of this approach can be found in James Tully, “Rediscovering America: theTwo Treatises and Aboriginal Rights,” inAn Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993).Google Scholar
  32. 39.
    Waldron, “Superseding Historic Injustice”: 15.Google Scholar

Copyright information

© Kluwer Academic Publishers 1995

Authors and Affiliations

  • A. John Simmons
    • 1
  1. 1.Dept. of PhilosophyUniversity of VirginiaCharlottesvilleUSA

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