Law and Philosophy 27 (5):505 - 531 (2008)

Authors
Ori Herstein
King's College London
Abstract
The "non-identity argument" has been applied to reject the validity of claims for historic justice, often generating highly unintuitive conclusions. George Sher has suggested a solution to this problem, explaining the harm to descendants of historically wronged peoples as deriving not from the historic wrongs but from the failure to provide rectification to the previous generation for harm they suffered. That generation was likewise owed rectification for harm they suffered from failure to provide rectification to the generation preceding them. In this chain of injustices each failure to provide rectification to one is the source of wrongful harm to the next. Such chains form a "bridge" between the historic wrong and the harm suffered by living individuals. I call this approach the subsequent-wrong solution (SWS). I argue that bypassing the non-identity argument in this way is problematic. First, SWS cannot justify rectification in seemingly legitimate historic-justice claims, such as historic wrongs generating delayed harms that skip generations. Second, SWS justifies rectification for the wrong reasons, denying the essence of historic-justice claims: that past wrongs, for which original wrongdoers are responsible, harm descendants of original victims. Finally, SWS does not fully account for group membership's role in historic injustice, unable to distinguish between claims of descendants of historic victims and claims made by others with unrelated interests in the rectification of the previous generation. A supplementary solution is needed, focusing on the role of group harm and group membership. The plausibility of this approach, tying individual harm to group harm, derives from these three limitations of the subsequent-harm solution. I give a rudimentary account of what such a solution would look like.
Keywords Law   Logic   Political Science   Social Sciences, general   Philosophy of Law   Law Theory/Law Philosophy
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DOI 10.1007/s10982-008-9025-y
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Intergenerational Justice.Lukas Meyer - 2008 - Stanford Encyclopedia of Philosophy.
The Nonidentity Problem.Melinda Roberts - 2010 - Stanford Encyclopedia of Philosophy.
Appropriating Resources: Land Claims, Law, and Illicit Business.Edmund F. Byrne - 2012 - Journal of Business Ethics 106 (4):453-466.
Is Rawls's theory of justice exclusively forward-looking?Moisés Vaca - 2013 - Tópicos: Revista de Filosofía 45:299-330.

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