Abstract
The Non-Identity Problem (NIP) has been recognized as a hindrance in justifying compensation for historical injustice. Since NIP applies to individuals, an attractive way of trying to remove the obstacle is by shifting the focus from the allegedly harmed individuals to the harmed group. However, critical examination of this move shows that (a) there are groups—most conspicuously African Americans—who were created by the unjust wrongs for which compensation is now claimed and hence fall under the same category as any wrongful life case on the individual level, and (b) even when the group already existed when the wrongs were perpetrated, with the long passage of time it changed its identity in the narrative sense, which means that its contemporary members are attached to it as it is defined today but not as it was when the wrong was done. The paper suggests, therefore, that the Group Non-Identity Problem (GNIP) is the parallel impediment to that of NIP in doing historical justice to social groups which were maltreated in the past.
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Notes
I am using the term ‘compensation’ in its general standard sense as making up for someone's loss, damage or injury by giving the injured party an appropriate benefit (usually in proportion to the worsening of the condition of the subject after the wrongful damaging act relatively to his or her condition before the act). Note that the compensated party must be the party which has suffered the loss (although it can be a loss caused by a damage done to another person, such as a dead ancestor). This is what makes the NIP challenge troubling.
See, for example, Daniel Butt (Butt 2009, p. 106) who believes that NIP is a philosophical question that cannot prescribe or block solutions to the problem of compensation for historical wrongs. Obviously NIP does not concern governments which articulate policies of such compensation, but that does not mean that philosophers should not grapple with the question of how to justify such compensation in the face of the logical obstacles such as NIP.
A similar problem arises in Herstein’s solution to NIP through members’ affiliation to groups, as will be shown below. Richard Vernon also tries to overcome the obstacle of NIP by proposing that ‘if someone has a general duty not to expose others to a lethal danger, it applies to anyone who is led to incur the danger’ (Vernon 2012, p. 49). This is of course true, but that does not mean that any specific person who happens to incur the danger, when this danger led to his or her birth, can claim compensation for the wrongful act of the subject of that general duty. For Vernon himself notes in the preceding paragraphs that harm assumes some worsening in the condition of the claimant of compensation, and non-existence is not a baseline for assessing this aggravation.
For a critique of Sher’s solution in terms of ‘the continuing injustice argument’, see Perez (2011). Since my concern here is with the proposed solution in terms of group rights and the NIP as it applies to groups, I will not discuss Sher’s argument any further. But Perez is correct in mentioning that even in Sher’s argument NIP can raise its head since the continued injustice to those who deserve to be compensated can affect the identity of their children (p. 157).
This may explain the asymmetry between states and the victims of state-perpetrated injustice: since states are enduring in their identity, a state today can be responsible for the actions of the (same) state in the past; but this does not mean that the victims—either as individuals or as groups—hold corresponding rights against the state.
Jeff Spinner-Halev (2012, Ch. 3) takes the endurance of injustice as the distinguishing feature of historical injustice strictly speaking (as against any other injustice done in the past to ancestors of present group members such as exploited workers). But he ignores NIP altogether since he believes it is too counterintuitive to merit discussion in this context (pp. 32–33).
The counterfactual analysis of harm is an ambiguous concept. It could mean: (a) Would the individual/group exist had the harmful act not taken place?; or (b) Would the condition of the individual/group have been better had the harmful act not taken place? My claim is that (a) logically precedes (b), which makes the satisfaction of the identity condition necessary for claiming compensation.
A less pure and politically explosive issue concerns the national identity of the Palestinians. Historians dispute whether the Palestinian identity gradually evolved in the second half of the nineteenth century independently of the immigration of Zionist Jews into Palestine (roughly at the same time) or that local Arabs started defining themselves as Palestinians as a result of the pressure of the conflict with the Jews, a conflict which reached its peak in the 1948 naqba. For some Israeli politicians the latter option is the reason for denying the Palestinians the right of self-determination, which is obviously wrong, for even if the Palestinians cannot claim damages for events leading to the creation of their unique group, they have now a full right to national self-determination since they now exist as a well-defined group.
The Return-to-Africa Movement is a counterexample. But it must be noted that despite its persistence throughout the nineteenth and twentieth centuries, all of the repeated initiatives ended in failure. The repatriated African Americans in nineteenth-century Liberia have suffered a shocking mortality rate and the Movement always met a very strong resistance by African Americans who considered the idea of repatriation as a white conspiracy—not without justification—for some white people considered it to be the means for solving the racial problem in the US.
Of course, as Posner and Vermeule point out (2003, p. 741), if a society retains its identity throughout the relevant period (like American society from the time of slavery till our own days) then GNIP presents no barrier to the claim for compensation. Slavery has definitely changed the character of American society but not to the extent that it became a numerically different society than it was before or would have been without slavery. Posner and Vermeule devote only a few lines (p. 702) in their comprehensive article to NIP since they concentrate on ‘remedial schemes’ and institutional designs on a ‘lower level of abstraction’ (p. 746).
There are, of course, philosophers who do not accept this individualist analysis of the nature of social groups. The debate between liberalism and communitarianism is a large and deep issue to which I cannot enter here in more detail. I follow Appiah’s approach discussed in the next paragraph. I would only add that although we do talk about the quality of life of a group, there is no way to analyze it but in some way related to the quality of life of its individual members—usually as a generalization or the average of their quality of life. Admittedly, with group interests, the analysis is more complex since, for example, we may wish to distinguish between genuine and non-genuine interests based on class identity, as Marxists do. In the case of rights, the analysis starts more naturally (both historically and theoretically) with individuals, and group rights are conceptually derivative.
Nahshon Perez’s excellent article (2014) is one of the rare discussions of the relationship between NIP and GNIP. I fully share with Perez the skeptical conclusion about attempts to overcome NIP in the attempt to justify compensation for historical justice. However, my argument is different from his in grounding it on two fundamental distinctions: numerical vs. narrative identity (applied on both the group and the individual level) and what I referred to as harm in belonging to a group and harm by belonging to a group. Even if by having a Jewish identity in nineteenth-century Poland one pays a painful price (being victim to antisemitism), one is not harmed in having a sense of belonging to the Jewish community because Jewishness is part of his or her narrative identity (you may add, for better or for worse).
This takes us back to Parfit’s attempts, mentioned above, to avoid the counterintuitive implications of NIP by introducing the concept of a ‘general person’ (which is similar to a de dicto identified person). For a critique of these attempts see Heyd (2014).
I owe this point (as well as some other constructive suggestions) to one of the anonymous referees of this article. Indeed, the identity of Jews has been maintained for centuries and even millennia but that does not mean that contemporary Jews regard their expulsion from their land in the first and second century (CE) as calling for compensation.
References
Appiah, Kwame Anthony. 2011. ‘Group rights’ and racial affirmative action. Journal of Ethics 15: 265–280.
Butt, Daniel. 2009. Rectifying international injustice: Principles of compensation and restitution between nations. New York: Oxford University Press.
Fishkin, James. 1991. Justice between generations: Compensation, identity, and group membership. Nomos 33: 85–96.
Herstein, Ori. 2008. Historic justice and the non-identity problem: The limitations of the subsequent-wrong solution and towards a new solution. Law and Philosophy 27: 505–531.
Herstein, Ori. 2009. Historic injustice, group membership and harm to individuals: Defending claims for historic justice from the non-identity problem. Harvard Blackletter Law Journal 25: 229–276.
Heyd, David. 2014. Parfit on the non-identity problem, again. Law Ethics and Human Rights 8: 1–20.
Kukathas, Chandran. 2006. What? Whom? Reparations and the problem of agency. Journal of Social Philosophy 37: 330–341.
Kumar, Rahul and David Silver. 2004. The legacy of injustice: wronging the future, responsibility for the past. In Justice in time, ed. Lukas Meyer, 145–158. Baden-Baden: Nomos.
Lu, Catherine. 2017. Justice and reconciliation in world politics. Cambridge: Cambridge University Press.
Meyer Lukas. 2021. Intergenerational justice, In The Stanford encyclopedia of philosophy (Summer 2021 Edition), ed. Edward N. Zalta, https://plato.stanford.edu/archives/sum2021/entries/justice-intergenerational/.
Meyer. Lukas. 2001. Transnational autonomy: Responding to historical injustice in the case of the Saami and the Roma peoples. International Journal of Minority and Group Rights 8: 263–301.
Page, Edward. 2006. Climate change, justice and future generations. Cheltenham: Edward Elgar.
Parfit, Derek. 2011. On what matters, vol. 2. Oxford: Oxford University Press.
Perez, Nahshon. 2011. On compensation and return: Can the ‘Continuing Injustice Argument’ for compensating for historical injustices justify compensation for such injustices or the return of property? Journal of Applied Philosophy 28: 151–168.
Perez, Nahshon. 2014. Must we provide material redress for past wrongs? In Contemporary debates in applied ethics, ed. Andrew I. Cohen and Christopher Wellman, 203–215. Chichester, UK: Blackwell.
Posner, E. A., and A. Vermeule. 2003. Reparations for slavery and other historical injustices. Columbia Law Review 103: 689–747.
Sher, George. 2005. Transgenerational compensation. Philosophy and Public Affairs 37: 181–200.
Spinner-Halev, Jeff. 2012. Enduring injustice. Cambridge: Cambridge University Press.
Truccone, Santiago. 2022. Responding to historical injustices and the moral irrelevance of group identity. European Journal of Political Theory.
Vernon, Richard. 2012. Historical redress: Must we pay for the past? Bloomsbury Publishing.
Waldron, Jeremy. 2004. Redressing historic injustice. In Justice in time, ed. Lukas Meyer, 145–158. Baden-Baden: Nomos.
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Heyd, D. Group (Non) Identity and Historical Justice. Res Publica (2024). https://doi.org/10.1007/s11158-023-09649-5
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DOI: https://doi.org/10.1007/s11158-023-09649-5