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Restitution: The Basics

So far, so good. Suppose now that at time t1 A takes a good g which is in B’s de facto possession. Let us first assume that B was not gs rightful owner. Even so, it does not follow that A did have a justification for so acting: the fact that B is not entitled to g does not establish that A is, and it may well be, therefore, that A is under a duty to hand over g—if not to B, to some other party.

Let us now assume that B is gs rightful owner but that she forfeits her rights over it. For example, she starts using her gun to shoot at some defenceless bystander. In this case, A is justified in seizing the gun at t1; likewise if B shoots at him. But even so, A is under a duty to return g at t2 if he does not have a justification for holding on to it.

Suppose finally that at t1 B was gs rightful owner, was not under a duty to give it away, and (thus) did not forfeit her rights over it. Here we must distinguish between two scenarios. In the first scenario, there is a lesser-evil justification for taking g anyway: for example, by taking g away from B, who is not under a duty to divest herself from it, A would save a number of lives. If that or any other justification no longer applies, then A is under a duty to return g to B at t2. In the second scenario, A was not justified in taking g from B at t1. In so far as A was under a duty not to take g, it seems that he is under a duty to give it back at t2. For A wrongfully took from B something that rightfully belonged to her and indeed still rightfully belongs to her, period. To the extent that B was, and still is, gs rightful owner, and that there is no reason why she should not be allowed to use g, g should be returned to her—not just by A, in fact, but by whomever happens to have g.

In sum, even if dispossessing B of g is morally justified, A does not thereby acquire ownership of g and is therefore under aprima facie duty to return it, either to B when B can still be described as gs rightful owner, or to some other party when B cannot be so described. More clearly still, if dispossessing B of g is not morally justified, A is also under a prima facie duty to restitute it to her, for B is still its rightful owner.

Some might worry that those remarks rely on the viciously circular claim that B still owns g at t2 following As act of seizure at t1. Appealing to the claim that she does begs the question—or so they might say—for the question is precisely whether that is the case. I do not think that the argument is circular, but highlighting why sheds light on an important distinction in the political philosophy of ownership—between justifying the conferral on agents of (exclusive) rights, powers, liabilities, etc., in respect of g on the one hand, and ascertaining the conditions under which a given agent actually does have those rights. Let me explain. Earlier, I justified ownership rights by appealing to individuals’ interest in durably enjoying and controlling the resources they need to lead a flourishing life. But from the fact that enjoying and controlling g would so protect B’s interest, it does not follow that B has ownership rights over g. To see this, suppose that B has a gun in her possession, with which she has already shot at A once without justification. Suppose further that A has the means to defend himself. Clearly, once A fires back, for B to use her gun in her own defence (at that point) would serve her interest in remaining alive. Yet she ought not to kill A, even in self-defence: rather, she ought to surrender, which implies that she does not at that point have the exclusive right to use her gun.

In other words, the flourishing-life justification for ownership rights must be supplemented with an account of the conditions under which agents acquire (and forfeit) those rights. I shall assume along Lockean lines that B rightfully owns g if and only if she has appropriated it ab initio, or produced it out of resources which she rightfully owned or obtained it from someone who rightfully owned it, and provided that her having exclusive rights over g does not wrongfully cause some other party to have a less than flourishing life.[1] Now, suppose that B rightfully owns g at t1. By unjustifiably taking it away from her without her consent, A does not acquire rights over it: he has not produced it, nor was it given to him by its rightful owner. There is, thus, independent support for the claim that B still rightfully owned g at t2, and the argument for restitution is not viciously circular.

There is also independent support for the claim that if B’s descendants would have rightfully owned g at t3, in virtue of having rightfully inherited it, then A is under a prima facie obligation to give it back to them. However, victims’ descendants, here and now, have an inheritance-right over those objects only if

  • (a) individuals in general have inheritance rights over their ancestors’ estate and
  • (b) it is plausible to hold that those descendants would have inherited those artefacts had it not been for the initial wartime taking. On the first point, subject to inheritance taxes as required by the imperative to ensure that all individuals enjoy prospects for a flourishing life, sufficientist justice does make space for both the right to bequeath and the right to inherit as one important way in which agents can exercise the personal prerogative to attach greater weight to their own projects and attachments than those of others. B, that is, might well enjoy the personal prerogative to bequeath a prized heirloom to a loved one; should she die intestate with respect to that particular heirloom, her heir might well enjoy the personal prerogative to inherit it. However, and with regard to the second point, the more time lapses the less certain one can be that such claims can be made, since the more time has passed, the more likely it is that the chain of ownership linking current claimants to their ancestors would have broken anyway through sales and gifts to outsiders.10

Now is as good a time as any to address an often-rehearsed objection to corrective claims as made by victims’ descendants. The objection—or non-identity problem— begins by noting that those descendants would not exist were it not for the initial rights violation (since their parents were brought together through that initial act, without which they would therefore not have procreated when they did and would therefore not have created those particular children). How, then, can they plausibly claim that they were wronged by that act, and that they are owed reparation?n Although the objection is raised against reparations in general, it applies equally, if it does at all, to restitution claims in particular, for example as follows: ‘had A’s troops not invaded TB and wrongfully appropriated its resources, consequent population movements would not have occurred, and you yourself would not exist, and so you have not been wronged by the invasion and therefore cannot demand that A should return what they took’.

book is not itself Lockean. There is no reason why Lockean conditions on the conferral of ownership rights must, first, imply a commitment to self-ownership and, second, imply a denial of robust (non rectificatory) rights to resources.

  • 10 For a well-known defence of the familiar claim that time can extinguish rights and obligations, see J. Waldron, ‘Superseding Historic Injustice’, Ethics 103 (1992): 4—28. Christopher Kutz makes a similar claim in the specific context of land reparations in central Europe to individuals and groups who had been despoiled by Communist regimes. See Kutz, ‘Justice in Reparations’.
  • 11 The locus classicus for the non-identity objection is D. Parfit, Reasons and Persons (Oxford: Clarendon, 1984), chs. 16—17.

Of all the response which the non-identity objection has generated, one in particular is worth explicitly rejecting in the context of this book. It goes like this: we cannot say in individuals’ cases ‘had this person’s ancestors not been victims of discrimination, she would now not be a victim of injustice (since she would not exist)’; but in group cases, we can say: ‘had members of this group not been victims of slavery and subsequent discrimination in the past, members of this group, here and now, would not be victims of injustice qua group members’^2 In so far as war tends to pit groups of individuals against each other at least as much as it pits multitudes of combatants each individually killing other individual combatants and/or non-combatants, a group-based account of corrective justice might seem to avoid the non-identity objection. Unfortunately, however, it grants individuals a claim to reparations in general, and restitution in particular, not in virtue of their having been harmed as a result of their ancestors having been wronged, but simply in virtue of belonging to a given group. In so far as cosmopolitan justice regards group membership per se as irrelevant to the rights and liabilities of individuals, one must look elsewhere for a way around the non-identity problem. One must do so, moreover, in a way which preserves the claim that in failing to satisfy restitutive demands arising from past wrongful harms, one is derelict in one’s duties to the very same person who is a victim of injustice here and now.

An attractive response to the objection which I will adopt here and which applies not just to the restitution of moveable resources but also to territorial restitutions, the right of return and reparations, has been offered by a number of authors. As they note, even if an unjust act brings about the existence of a particular individual and thus does not make that individual worse off overall than she would have been otherwise (on the assumption that existence is not worse than non-existence), failure to provide reparations to her parents for that unjust act after she has been conceived might well have severely harmful effects on her—so harmful in fact as to constitute an injustice for which she in turn is owed reparation.[2] [3] In addition, to the extent that wrongdoers commit a given injustice not merely at time t1 but also, and ongoingly, at t2, an individual whose existence is in part caused by the commission of that injustice at t1 nevertheless has a t2-related grievance against those wrongdoers. The point, though obvious, bears stressing in the present context, precisely because as we saw in ch. 2, belligerents do not merely start a war at t1: they continue to fight it at t2, t3, and so on, and at each stage their decision not to desist from their initial course of action calls for moral scrutiny. A child born of citizensB who would not have met but for the fact that they both fled in the aftermath of As wrongful appropriation of resources within TB at t1 might not have been made wrongfully worse off by A’s regime at t1; but to the extent that A’s continued appropriation and failure to return what it took impaired her prospects for a flourishing life (for example, because the loss of those resources undermined the ability of B’s institutions to deliver justice to citizensB), she does have a legitimate grievance against A. To object to that child’s demand for the return of those resources on the grounds that she owes her existence to the annexation at t1 will not do, since at t2 A’s regime could have returned the resources, and yet wrongfully failed to do so.

Let us take stock. I have argued that ownership, occupancy, and sovereignty-cum territorial rights protect their holders’ interests in having control over their social, economic, and political environment, but that sufficientist justice constrains both the right to bequeath and the right to inherit. Turning to restitutive justice in general, I have defended the following theses: wrongful appropriation of what individuals rightfully own generates restitutive duties on the part of the appropriators, so long as those individuals can still be considered rightful owners of what was taken; the fact that someone is not the rightful owner of a good does not licence all and sundry to appropriate that good, and wrongful appropriations in such cases can generate a duty to return the good; a rightful appropriator is sometimes under a duty to restitute that which he has taken. In the remainder of this chapter, I bring those general principles to bear on wartime appropriations.

  • [1] I lack the space to defend those Lockean conditions here. I hope that they are intuitively plausibleenough to warrant endorsing, even though the theory of justice which underpins my arguments in this
  • [2] See, e.g., J. S. Fishkin, ‘Justice Between Generations: Compensation, Identity, and GroupMembership’, in J. W Chapman (ed.), Compensatory Justice (New York: New York University Press,1991). Fishkin couches the argument in terms of individuals being worse off or better off, and not interms of being wronged or not.
  • [3] See G. Sher, ‘Transgenerational Compensation’, Philosophy & Public Affairs 33 (2005): 181—200;Waldron, ‘Superseding Historic Injustice’; J. Waldron, ‘Redressing Historic Injustice’, The Universityof Toronto Law Journal 52 (2002): 135—60; Butt, Rectifying International Injustices E. F. Paul, ‘Set-asides,Reparations, and Compensatory Justice’, in J. W. Chapman (ed.), Compensatory Justice (New York:New York University Press, 1991). Note that this move only blocks the non-identity objection in itsbackward-looking invocation (that is to say, in the form: ‘we are not under a duty to compensate youfor past wrongs which led to your existence, since you would not exist but for those wrongs and sinceyour existence is not worse than your non-existence’). It does not block the objection in its forward-looking invocation (that is to say, in the form: ‘we are not under a duty to you now not to makesuch and such decisions some of which consequences will harm you, since not making those decisionswill lead you not to exist, and since your existence is not worse than your non-existence’).
 
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