Rights to compensation are much invoked and much disputed in recent liberal debates. The disputes are generally about supposed fundamental rights to compensation, whose recognition and legal enactment would transform some lives. For example, special treatment in education or employment are claimed as compensation for past denials of equal opportunity; special consideration for Third World countries in aid and trade terms is claimed as compensation for the injustices of the colonial past. We can make (...) ready sense of the idea of legal rights to compensation. Legal rights to compensation guarantee recompense for damage suffered. The damage for which compensation is given may or may not be produced by wrongdoing; it may also be negligent or accidental or due to natural causes. In law, compensation is not always contingent upon the victim having suffered injury as well as harm, nor upon saddling a wrong-doer with the costs of compensation. Insurance policies standardly cover damage due to accident and neglect. Legal rights to compensation may provide for payments to victims of violent crime, to those whose property is requisitioned or damaged, to victims of libel or malpractice, and even to victims of natural disasters such as floods or earthquakes. Legal rights to compensation are a standard way of dealing with the predicament of those who become victims, whether of others' action, of their own negligence, or of natural catastrophe. None of this shows that there are fundamental rights to compensation. Legal rights to compensation may lack moral grounding: and if they are morally grounded, they may rest not on fundamental rights to compensation, but on background positions in which rights are derivative or inessential. (shrink)

Calls for compensation are heard in many countries all over the world. Spokespersons on behalf of formerly oppressed and dominated groups call for compensation for the deeply traumatic injustices their members have suffered in the past. Sometimes these injustices were suffered decades ago by members already deceased. How valid are such claims to compensation and should they be honoured as a matter of justice? The focus of this essay is on these issues of compensatory justice. (...) I want to look at the issue from the perspective of the eradication of systematic poverty affecting particular groups—where injustices of the distant past can reliably be identified as one of the major contributory factors to people’s current poverty. In the paper I will examine the following issues: (1) What kind of injustices qualify to be remedied by means of compensatory justice? (2) Should there be a limit to how far back in history one should go to compensate for injustice? (3) How can an injustice from the distant past be reliably identified as a cause of current problems? (4) Who should be compensated? (5) Who is responsible for compensation? (6) What form should compensation take? (7) Is the concept of compensatory justice backward looking or forward looking? I will argue for a moral obligation to the effect that serious injustices, perpetrated long ago against a group of people and caused them to be poor, ought to be compensated by society in a variety of ways to the original victims (if still alive) and their descendants. (shrink)

When states are required to compensate victim groups for the historic wrongs they have committed, how should the compensation due be calculated? It seems that alongside the counterfactual world in which the wrongdoing never occurred, we should also consider the counterfactual world in which the wrongdoing has occurred, but the victims have responded to it in a prudent way. Under tort law, the damages a victim can claim are reduced if they are judged to have been contributorily negligent, thereby (...) exacerbating the harm they have suffered. The paper considers four reasons why victim groups could not be expected to respond collectively to injustice in a way that outsiders might judge to be prudent. 1. The wrongdoing has destroyed their capacity to act as a group agent. 2. The wrongdoing has inflicted psychological traumas that lead them to make poor decisions. 3. They would need to violate a moral norm that is deeply embedded in their culture. 4. They would need to adopt policies that risk inflicting severe injustice on an internal minority. In many instances of historic injustice, one or more of these reasons apply. So although in principle victims’ behaviour is relevant when compensation is being calculated, we must be very cautious in using that doctrine to assess real cases. (shrink)

Then newly elected Labor Prime Minister, Kevin Rudd, made a historic statement of “Sorry” for past injustices to Australian Indigenous peoples at the opening of the 2008 federal parliament. In the long-standing absence of a constitutional ‘foundational principle’ to shape positive federal initiatives in this context, there has been speculation that the emphatic Sorry Statement may presage formal constitutional recognition. The debate is long overdue in a nation that only overturned the legal fiction of terra nullius and recognised native (...) title to lan with the High Court’s decision in Mabo in 1992. This article explores the implications of the Sorry Statement in the context of reparations for the generations removed from their families under assimilation policies (known since the Bringing Them Home Inquiry as the Stolen Generations). We draw out the utility of recent human rights statutes—such as the Human Rights Act 2004 (ACT)—as a mechanism for facilitating justice, including compensation for past wrongs. Our primary concern here is whether existing legal processes in Australia hold further capacity to provide reparation for Australian Indigenous peoples or whether their potential in that regard is already exhausted. We compare common law and statutory developments in other international jurisdictions, such as Canada, as an indication of what can be achieved by the law to facilitate better legal, economic and social outcomes for Indigenous peoples. The year 2008 also saw Canadian Prime Minister Stephen Harper express his apology to residential school victims in the Canadian Parliament, providing thematic and symbolic echoes across these two former colonies, which, despite remaining under the British monarchy, both forge their own path into the future, while confronting their own unique colonial past. We suggest that the momentum provided by the recent public apology and statement of “Sorry” by the newly elected Australian Prime Minister must not be lost. This symbolic utterance as a first act of the 2008 parliamentary year stood in stark contrast to the long-standing recalcitrance of the former Prime Minister John Howard on the matter of a formal apology. Rather than a return to a law enforcement-inspired “three strikes and you’re out” approach, Australia stands poised for an overdue constitutional and human rights-inspired “three ‘sorries’ and you’re in”. (shrink)

This article examines the relationship between Jeremy Waldron’s supersession thesis and compensation. Recently, Waldron has argued that claims for material compensation for the original injustice cannot be superseded. He limits supersession to issues of restitution. Waldron’s supersession thesis is frequently cited by opponents of claims based on historical injustice, so his view of compensation warrants close examination. In our article, we explain the details of Waldron’s ‘simple model’ of compensation, offer an internal critique of it, and (...) try to sympathetically reconstruct it. We contend that a crucial claim about this model does not work; his model would result in many more backward-looking compensatory claims than he realizes. Waldron’s allowing for material compensation claims from historical injustice is in tension with, or incompatible with, his long-expressed view that the spirit of the supersession thesis is that justice should be forward-looking and look to present-day costs. We have argued elsewhere that the abstract possibility that restitution claims may be superseded due to changing circumstances (what we call the ‘supersession thesis proper’) is separable from the question of whether justice has a forward-looking or backward-looking orientation. We argue here that Waldron’s model of compensation can best be made sense of through our distinction of ‘full supersession’ and ‘partial supersession.’ This allows us to show that Waldron’s model relies on a more strongly backward-looking orientation than he seems to endorse in his earlier works on restitution and his most recent article discussing compensation. We conclude by offering external criticisms of Waldron’s model of compensation. (shrink)

This paper offers a critique of recent attempts, by George Sher and others to justify compensation to be paid to descendants of deceased victims of past wrongs. This recent attempt is important as it endeavours to avoid some well-known critiques of previous attempts, such as the non-identity problem. Furthermore, this new attempt is grounded in individual rights, without invoking a more controversial collectivist assumption. The first step in this critique is to differentiate between compensation and restitution. Once this (...) important distinction is clear, an examination of several factors follows: the importance of the passage of time vis-à-vis claims for compensation and/or restitution, the responsibility of the would be payers, the responsibility of the descendants of the victims, the welfare level of the descendants of the victims, information-related issues, and several additional factors. The conclusion is that once we take into account the distinction between compensation and restitution, and the additional factors mentioned, the case for compensation and/or restitution under the ‘continuing injustice argument’, is highly limited. (shrink)

There is lively debate on the question if states have legitimate authority to enforce the exclusion of (would-be) immigrants. Against common belief, I argue that even non- cosmopolitan liberals have strong reason to be sceptical of much contemporary border authority. To do so, I first establish that for liberals, broadly defined, a state can only hold legitimate authority over persons whose moral equality it is not engaged in undermining. I then reconstruct empirical cases from the sphere of international relations in (...) which what I call ‘colonial norms’ continue to play significant structuring roles. I argue that it is sometimes only by unveiling these colonial norms and the roles they play that we can understand how some states today culpably contribute to undermining the moral equality of persons over whom they will come to claim immigration-related authority. I thus contend that paying attention to colonial norms distinctly enables us to reveal a set of instances in which all liberals should agree that states forfeit legitimate authority over would-be immigrants. (shrink)

The scale and character of past injustice can seem overwhelming. Grievous wrongdoing characterizes so much of human history, both within and between different political communities. This raises a familiar question of reparative justice: what is owed in the present as a result of the unjust actions of the past? This article asks what should be done in situations where contemporary debts stemming from past injustice are massive in scale, and seemingly call for nonideal resolution or settlement. Drawing on recent work (...) by Sara Amighetti and Alasia Nuti on deliberative reparative processes, the article differentiates between two different approaches to settling claims for reparation. The first pursues settlement in a legal or quasi legal sense, seeking to close a matter through discussion, compromise, and bargaining in such a way as to maximize one’s interest while drawing a line under the events in question. The second is grounded not in one’s own interest but in an acknowledgement of the inevitable inadequacy of one’s reparative response. Such an approach to settlement centres the agency of the individuals and groups harmed by past wrongdoing. The article examines the reparations issue with reference to a range of recent cases of alleged settlement, including claims for reparation for torture by the British army in Kenya in the 1950s, for sexual slavery by the Japanese Imperial Army in East Asia in the Second World War, and for genocide by German colonial forces between 1904 and 1908. (shrink)

The discussion of global justice has mainly focused on global distributive justice. This article argues for global rectificatory justice, mainly by former colonial states in favor of former colonized peoples. The argument depends on the following premises: there is a moral obligation to rectify the consequences of wrongful acts; colonialism was on the whole harmful for the colonies; the present unjust global structure was constituted by colonialism; and the obligation of rectificatory justice is trans-generational so long as there are (...) at present identifiable beneficiaries and victims of past injustice. Although it is too demanding to ask for full compensation for 450 years of colonialism, the former colonial powers can in different ways and to the best of their efforts contribute to change the present inequalities that are the legacy of history. A theory of global rectificatory justice is complementary to a theory of global distributive justice and enables us to develop a fuller understanding of the meaning of global justice. Keywords: global justice; rectification; ethical presentism; colonialism; entitlement; reconciliation; Durban declarations; racism Citation: Ethics & Global Politics, Vol. 3, No. 2, 2010, pp. 85-99. DOI: 10.3402/egp.v3i2.1996. (shrink)

This work examines the case for international compensation programs for reasonably justly formed majority cultures facing threats due to the ordinary functioning of globalization. While many “majority rights” claims cannot withstand scrutiny, standard liberal-democratic arguments for minority rights couched in concerns about cultural vulnerability now apply to several majority cultures. Parity of reasoning from the minority rights literature thus provides some reasonably justly formed majorities with claims to cultural protections. Domestic laws are unlikely to adequately protect against transnational threats, (...) and some would threaten minority rights. But majority cultural vulnerability presents an injustice that international institutions should address. A well-designed international compensation scheme could maintain recognized benefits of globalization while compensating those who lose part of their cultural identity as a result. The following motivates and provides preliminary details on how to design a scheme. (shrink)

The extent to which English law remedies injury to autonomy as a stand-alone actionable damage in negligence is disputed. In this article I argue that the remedy available is not only partial and inconsistent but also gendered and discriminatory against women. I first situate the argument within the broader feminist critique of tort law as failing to appropriately remedy gendered harms, and of law more broadly as undervaluing women’s interest in reproductive autonomy. I then show by reference to English remedies (...) law’s first principles how imposed motherhood cases—Rees v Darlington and its predecessor McFarlane v Tayside Health Board—result in gender injustice when compared with other autonomy cases such as Chester v Afshar and Yearworth v North Bristol NHS Trust: A minor gender-neutral ITA is better remedied than the significant gendered harm of imposing motherhood on the claimant; men’s reproductive autonomy is protected to a greater extent than women’s; women’s reproductive autonomy is protected by an exceptional, derisory award. Worst of all, courts refuse to recognise imposed motherhood as detriment; and the deemed, mansplained, nonpecuniary joys of motherhood are used to offset pecuniary upkeep costs, forcing the claimant into a position she sought to avoid and thus further undermining her autonomy. The recent Singaporean case ACB v Thomson Medical Pte Ltd, awarding compensation for undermining the claimant’s genetic affinity in an IVF wrong-sperm-mix-up demonstrates some improvement in comparison to English law, and some shared gender injustices in the context of reproductive autonomy. ACB’s analysis is oblivious to the nature of reproductive autonomy harm as gendered; and prioritises the father’s interest in having genetic affinity with the baby over a woman’s interest in not having motherhood imposed upon her. (shrink)

ABSTRACTThe incorrect conceptualization and evaluation of reparations for colonial slave trade and slavery within the legal, as opposed to the political, domain, produces an interpretation of the demands in France that views them as morally absurd and politically deleterious. I’ll use Iris Marion Young’s distinction between a liability model and a social connection model of responsibility to suggest that the moral claim according to which we can be held responsible today for redressing the structural injustices inherited from slave (...) trade and slavery is not irrational, nor motivated by a political will to divide the body politic between blamed perpetrators and innocent victims. I’ll first analyze the difficulties posed by the liability model by focusing on a specific legal case, MIR and CMDP vs. French state. Then I’ll argue that using a political model of responsibility solves conceptual and normative issues and allows us to understand why, and to what extent, we are responsible for redressing the structural racial injustice that endures in French society. (shrink)

As a response to climate change, geoengineering with solar radiation management has the potential to result in unjust harm. Potentially, this injustice could be ameliorated by providing compensation to victims of SRM. However, establishing a just SRM compensation system faces severe challenges. First, there is scientific uncertainty in detecting particular harmful impacts and causally attributing them to SRM. Second, there is ethical uncertainty regarding what principles should be used to determine responsibility and eligibility for compensation, as well (...) as determining how much compensation ought to be paid. Significant challenges loom for crafting a just SRM compensation system. (shrink)

People react negatively not only to injustices they personally endure but also to injustices that they observe as bystanders at work—and typically, people observe more injustices than they personally experience. It is therefore important to understand how organizations can restore observers’ perceptions of justice after an injustice has occurred. In our paper, we employ a policy capturing design to test and compare the restorative power of monetary compensation, procedure changes and apologies, alone and in combination, from (...) the perspective of third parties. We extend previous research on remedies by including different degrees of compensation and procedural changes, by comparing the effects of sincere versus insincere apologies and by including apologies from additional sources. The results indicate that monetary compensation, procedure changes, and sincere apologies all have a significant and positive effect on how observers perceive the restoration of justice. Insincere apologies, on the other hand, have no significant effect on restoration for third parties. Procedural changes were found to have the strongest remedial effects, a remedy rarely included in previous research. One interpretation of this finding could be that observers of injustice prefer solutions that are not short sighted: changing procedures avoids future injustices that could affect other people. We found that combinations of remedies, such that the presence of a second remedy strengthens the effect of the first remedy, are particularly effective. Our findings regarding interactions underline the importance of studying and administering remedies in conjunction with each other. (shrink)

It is commonly argued that cultural objects ought to be returned to their place of origin in order to remedy injustices committed in the past. In this paper, it is shown that significant challenges attach to this way of arguing. Although there is considerable intuitive appeal in the idea that if somebody wrongs another person then she ought to compensate for that injustice, the principle is difficult to apply to wrongdoings committed many decades or centuries ago. It is not (...) clear that historic injustices can meaningfully be corrected, or compensated for, and there are several arguments why, even in cases where there is a prima facie moral case for compensation, repatriation might not be a legitimate means of remedy. In order to bring analytical clarity to the issue, this paper discusses the various steps of the argument that must be addressed in order to ground a valid repatriation claim based on historic injustices. (shrink)

The history of international relations is characterized by widespread injustice. What implications does this have for those living in the present? Should contemporary states pay reparations to the descendants of the victims of historic wrongdoing? Many writers have dismissed the moral urgency of rectificatory justice in a domestic context, as a result of their forward-looking accounts of distributive justice. Rectifying International Injustice argues that historical international injustice raises a series of distinct theoretical problems, as a result of the popularity of (...) backward-looking accounts of distributive justice in an international context. It lays out three morally relevant forms of connection with the past, based in ideas of benefit, entitlement and responsibility. Those living in the present may have obligations to pay compensation insofar as they are benefiting, and others are suffering, as a result of the effects of historic injustice. They may be in possession of property which does not rightly belong to them, but to which others have inherited entitlements. Finally, they may be members of political communities which bear collective responsibility for an ongoing failure to rectify historic injustice. Rectifying International Injustice considers each of these three linkages with the past in detail. It examines the complicated relationship between rectificatory justice and distributive justice, assesses the appropriateness of judging the past by contemporary moral standards, and argues that many of those who resist cosmopolitan demands for the global redistribution of resources have failed to appreciate the extent to which past wrongdoing undermines the legitimacy of contemporary resource holdings. (shrink)

Injustices of the past cast a shadow on the present. They are the root cause of much harm, the source of enmity, and increasingly in recent times, the focus of demands for reparation. In this groundbreaking philosophical investigation, Janna Thompson examines the problems raised by reparative demands and puts forward a theory of reparation for historical injustices. The book argues that the problems posed by historical injustices are best resolved by a reconciliatory view of reparative justice and (...) an approach that explains how people acquire intergenerational responsibilities and entitlements. It ranges in its subject matter from the claims of indigenous people to land stolen from their ancestors to the growing movement for reparations for slavery. The book provides an original and convincing answer to the questions of how citizens can have reparative responsibilities for wrongs committed before they were born, and why descendants of victims may be entitled to compensation for historical injustices such as slavery. It also explains how members of nations can make recompense for injustices of the past without ignoring the inequities of the present.Taking Responsibility for the Past is a significant contribution to philosophical and legal debates about reparative justice, and at the same time an accessible and thought-provoking book for general readers. (shrink)

The compensatory‐justice justification of affirmative action requires a comparison of the actual world in which the injured person lives with a relevantly similar possible world in which this person lives but where the unjust injuring act never occurred, in order to identify the degree of harm brought about by the unjust injurious act. The problem is that some unjust injuring acts, particularly acts of slavery, led to intercourse and the later creation of the ancestors of many members of minority groups. (...) Hence, there is no possible world in which these individuals exist and in which the injustice, e.g., slavery, did not occur. As a result, the counterfactual test does not allow us to measure or even understand the existence of a compensatable injury to these persons. I provide an inheritance‐based account of compensation that escapes this. (shrink)

On the basis of Waldron’s supersession thesis, this article discusses the historical injustice argument and contends that in order to evaluate moral claims for restitution of territorial titles it is important to consider the legitimate expectations of citizens that have been formed historically and have been sanctioned by the state through institutional mechanisms of stabilization of expectations. The legitimate expectations of citizens form normative demands that cannot be disregarded when rectifying historical injustices. In his arguments in favour of the (...) supersession thesis, Waldron does not give sufficient attention to the concept of ‘legitimate expectation’, even though the thesis is reinforced by this reference. Unlike exclusively restitutive and rectificatory measures, this paper relies on _present considerations_ of the consequences of past injustices, all within the framework of a theory of justice. In this sense, compensation deals with the past, but in a forward-looking way. (shrink)

The debate concerning the legitimacy of awarding reparations for historical injustices focuses on the issue of finding a proper moral justification for granting reparations to the descendants of the victims of injustices which took place in the remote past. Regarding the case of Romanian communism as a more recent injustice, and analyzing the moral problems entailed by this historical lapse, within this paper I argue that overcoming such a legacy cannot be carried out, as in the case of (...) historical injustices situated more remotely in time, through the means of selective reparations, such as restitutions or compensations. For, even though they are justified from the perspective of rectificatory justice, selective reparations do not fulfill the requirements of social justice. Rather, I argue that the fall of the Romanian communist regime should have been followed by an equal distribution of all properties illegitimately seized by the state, to all adult Romanian citizens at that time, in order to attain the imperative of equal distribution of property among all citizens. The equal distribution thesis is the only way through which the Romanian society could have complied, at that moment of political and social renewal, with the requirements of justice. I also aim at explaining why other principles of justice, which either have or could have been implemented, cannot be properly justified. Finally, I analyze two main objections which could be invoked against my thesis, namely the economic efficiency objection and the legal realist objection. (shrink)

In this chapter, we take stock of existing critiques of contemporary migration research and bring these debates into contact with ongoing debates among decolonial scholars and in feminist social epistemology. We illustrate how the ethical and epistemic concerns voiced by migration scholars in regard to the socio-epistemic functioning of their field can be understood using the conceptual apparatus that has been developed around the notions of epistemic injustice and oppression. In so doing, we illustrate the relevance and usefulness of both (...) feminist social epistemology and of decolonial theory for theorising the socio-epistemic challenges that migration scholars face. The conceptual framework of epistemic injustice and oppression not only offers clarity in what is at stake within migration studies both ethically and epistemically, but also elucidates moral and epistemic reasons for why these issues should be addressed. This framework both calls attention to issues of undue epistemic marginalisation, and centres these issues as a core concern as migration scholars critically reflect upon the knowledge production and dissemination practices of their field. Understanding the processes through which this happens, rather than just the epistemic outcomes, can help us to identify ways to address the structural inequalities with which the production of migration knowledge is often associated. (shrink)

This article debated how coloniality created religious illiteracy in Lesotho. Three parameters were suggested in this regard. Firstly, it is assumed that the prevalence of religious illiteracy started during missionary involvement in Lesotho. Secondly, it is argued that three strategies were applied in this exertion: the missionaries categorised Basotho as being without religion and, therefore, are liable for conversion into religion, which is Christianity. This predisposition ended up in the creation of religion synonymic to Christianity whilst all others disqualified, Basotho (...) were enticed into the binary of religious secularism and privatisation disassociated from spiritualism whilst connected to materialism and private affairs and Basotho were indoctrinated into accepting the existence of one universal religion which is Christianity through Western formal education. Thirdly and finally, decoloniality turn is recommended to curtail illiteracy in religion through the ontology of pluriversality, the hegemony of diversality and the epistemology of pluriversality.CONTRIBUTION: The article identified the pervasiveness of religious illiteracy in Africa with special reference to Lesotho. It highlighted its repercussions if left unchecked. Consequently, it examined and put forward the possible causes. As a result of the discoveries, the article suggested procedures to counter the causes in order to promote literacy in religion. (shrink)

Amartya Sen’s theory of enhancement of justice bears an insurmountable blind side that impairs and makes it incomplete, if not parochial. It dismisses coloniality as the veiled face of modernity without which any understanding of a theory of justice in a globalized world is impossible. Constructing a theory outside the complex frame of coloniality makes the theory vulnerable to severe hindrances. The duality produces a twofold but interdependent reality: for the western world it means the achievement of values such as (...) liberty and prosperity; for the non-western world, racism, extraction and exclusion. Since colonialism has been rearticulated into coloniality, these two categories cannot be isolated for they presuppose one another. Democracy remains a fallacy as long as real power depends on capitalism, which is the inextricable way of coloniality itself. Henceforth, free public discussion and free social choice remain chimerical, obtainable only when democracy as a true, unresolved conflict is a reality through the destruction of coloniality. Finally we propose a third principle of justice that would correct both Rawls’ and Sen’s conceptions of justice. Such corrections pinpoint the void in their approaches thus inverting the panoptic. (shrink)

A challenging question regarding compensation for historic injustices like slavery or colonialism is whether there is anyone to whom it would be just to ascribe duties of compensation given that allegedly all the perpetrators--the guilty parties--are dead. Some answer this question negatively, arguing it is wrong to ascribe to anyone compensatory duties for injustices committed by others who died multiple generations ago. This objection to compensation for historic injustice, which I call the Historical Responsibility Objection (...) (HRO), takes as its core premises (1) that one must be guilty of wrongdoing with respect to a given historic injustice in order to bear a duty to compensate for the injustice, and (2) that no one alive today can be considered so guilty because no one alive today was alive when the historic injustice occurred. The result is that we cannot ascribe compensatory duties to anyone for any historic injustic. While all arguments I am aware of that refute HRO reject premise (1), this paper sketches a novel refutation of HRO by exploring the implications of rejecting premise (2). Doing so would invoke the state as a collective agent, distinct from its constitutive individual agents, liable to acquire compensatory duties for wrongs it commits that none of its constitutive individuals bear. To the extent that states that are collective agents committed historic injustices, such states have duties to compensate for historic injustice. (shrink)

ABSTRACT In this paper I attempt to show that our commonly shared ideas of justice, which include principles of fair distribution and of compensation for past injustices, tend to come into conflict in practice, and generate serious dilemmas for persons in certain positions of authority, such as managers. I identify the source and nature of such dilemmas, and sketch a rough pattern for analysing and partially resolving conflicts between the duty not to discriminate unfairly and the duty to (...) compensate for past unfair discrimination. After stating what I regard as widely shared ideas of justice, I emphasise their application to actual policy decisions of the small‐scale sort, using general precepts for avoiding or minimising conflicts. The precepts include a commitment to the priority of compensatory justice. The paper includes theoretical portions, principally defences of my position against other views on the relationship between compensation and fair distribution. I end with an examination of the virtues and limitations of money as a tool for compensatory social policies. (shrink)

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the (...) Australian Prime Minister's formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted. © Springer Science + Business Media B.V. 2009. (shrink)

It is common to focus on the duties of the wrongdoer in cases that involve injustice. Presumably, the wrongdoer owes her victim an apology for having wronged her and perhaps compensation for having harmed her. But, these are not the only duties that may arise. Are other beneficiaries of an injustice permitted to retain the fruits of the injustice? If not, who becomes entitled to those funds? In recent years, the Connection Account has emerged as an influential account that (...) purports to explain cases such as Embezzlement. This account holds that benefiting from injustice can give rise to a corrective duty - that is, a duty of compensation - owed specifically to the victim of the injustice from which the recipient benefits. This duty is grounded in the connection between the victim and the beneficiary of a given injustice. This paper has two aims. First, I show that we must reject the Connection Account on the grounds that it risks failing correctly to identify those who become entitled to the fruits of injustice. I achieve this by developing and defending the fairness objection. Second, I offer an alternative account: the Moral Taintedness Account. This account states that, when identifying who is entitled to the fruits of injustice, the cause and the degree of the harm suffered by a victim are both relevant considerations, though it does not matter whether the victim is the victim of the injustice that gave rise to the fruits in question. This account avoids the problem associated with the Connection Account, and yields intuitive conclusions in an important range of test cases. (shrink)

This article articulates a sociological conception of settler colonial remembering as a tool of legitimation. Theories of memory in the context of settler colonialism generally center counter-memories by the subaltern or colonized, or official hegemonizing representations at the level of state institutions. Underexamined is the dialectical nature of memory and discursive representations that help reproduce settler colonial processes of accumulation and displacement at the micro-level. The article draws on archival data from avowedly socialist-leftist Zionist colonies to explicate patterned (...) representations of Palestinian villages that Zionist forces gradually displaced prior to and during the 1948 War/Nakba. I demonstrate how the colonial settlers attributed political meaning through five representational modes: contrasting the indigenous as backward and primitive and settlers as progressive and developed; denying an indigenous connection to the land; emphasizing amiable relations through the promotion of cultural progress and settler superiority; asymmetrically assessing settler and indigenous belongings to national collectives; and legitimizing land purchases that dispossessed indigenous cultivators, despite the settlers’ socialist ideology, while reducing conflict to the issue of economic compensation. I theorize a form of settler colonial memory based not merely on erasure, but on recognition and disavowal. Finally, I argue that local memory is a significant site of production in which the conceptual tools to both trace the historical processes of supremacy and subvert asymmetrical sociality lie. (shrink)

There is an emerging ethical consensus that injured research participants should receive medical care and compensation for their research-related injuries. This consensus is premised on notions of beneficence, distributive justice, compensatory justice and reciprocity. In response, countries around the world have implemented no-fault compensation systems to ensure that research participants are adequately protected in the event of injury. The United States, the world's leading sponsor of research, has chosen instead to rely on its legal system to provide injured (...) research participants with medical care and compensation. This article argues that US reliance on its legal system leaves injured research participants unprotected in the event of injury. Nearly every injured research participant will have difficulty receiving compensation in court, and certain classes of research participants will be barred from receiving compensation altogether. The United States’ outlier status also threatens to impede US-sponsored multinational research, potentially delaying important biomedical advances. To rectify this injustice, researchers, Institutional Review Boards, sponsors and research institutions should advocate systematic no-fault compensation in the United States to bring US law into accord with global ethical norms and ensure that injured research participants are adequately protected. (shrink)

This article continues the themes developed in a previous paper looking at reparations for past wrongs in post-colonial Australia. It narrows the focus to examine the scope of the law of tort to provide reparations suffered as a result of colonisation and dispossession, with particular emphasis on the assimilation policies whose legacy is now known emphatically, although it ought not be exclusively, as the Stolen Generations. The search for more than just words is particularly topical in light of the (...) Australian Prime Minister’s formal apology in early 2008. This highly symbolic step must not lose momentum. That momentum could be both political and legal. In the latter context, we explore here the concept of alien tort, in the light of current Australian tort jurisprudence, which has thus far proved inadequate to achieve compensation for the harms suffered. Taking a comparative approach, procedural and substantive developments are to better deliver justice consistent with community values. In particular, the greater acceptance of psychological harm as actionable tortious conduct in Canada and the United States is examined. The article further examines the scope for stolen children to bring suit under the US Alien Tort Claims Act 1789. While the Australian government enjoys sovereign immunity in the courts of the United States, non-state organisations such as churches that were complicit in the forcible removals may be subject to United States jurisdiction wherever they have a presence in that country. The procedural and substantive elements of such a claim are discussed. In particular, the relevant cause of action, the issue of forum non conveniens and the statute of limitations will be analysed to map out whether a claim could be developed and successfully prosecuted. (shrink)

Though a common language of science allows for easier communication of the results among researchers, the use of lingua franca also comes with the cost of losing some of the diverse ideas and results arising from the plurality of languages. Following Quine’s famous thesis about the indeterminacy of translation, we elaborate on the inherent loss of diverse ideas when only one language of science is used. Non-native speakers sometimes experience epistemic injustice due to their language proficiency and consequently, their scientific (...) insights get marginalized. Thus, it is important epistemically to include the results of all researchers independent of their native language. As a solution, we promote epistemic equity and inclusion both on the individual level and on the level of the scientific community. Epistemic equity means that researchers who suffer disadvantages because of their language skills get support from the rest of the scientific community that will compensate for their disadvantage and at the same time facilitate their epistemic inclusion. This can be achieved through the introduction of mitigating agents – the individuals and organizations that ought to serve as a communication bridge between individual researchers and the scientific community. (shrink)

This paper addresses the question of whether a statute of limitations on injustice is morally justified. Rectificatory justice calls for the ascription of a right to rectification once an injustice has been perpetrated. To claim a moral statute of limitations on injustice is to claim a temporal limit on the moral legitimacy of rights to rectification. A moral statute of limitations on injustice (hereafter MSOL) establishes an amount of time following injustice after which claims of rectification can no longer be (...) valid. Such a statute would put a time limit on the life of moral rights to rectification. Since ascribing a right to rectification for an injustice is a requirement of justice, and since the temporal limit called for by a moral statute of limitations on injustice is a constraint on that requirement, the idea of a statute of limitations on injustice is morally jutified only if we have good reasons for accepting this constraint. In “The Morality of a Moral Statute of Limitations on Injustice” I argued that neither the best arguments then extant in the philosophical literature, nor the arguments I proposed in favor of a MSOL, succeed in providing good reasons for accepting the idea as morally legitimate. I concluded, therefore, that a MSOL is not justified. Several discussions that have emerged since then suggest some support for a MSOL. My aim in this paper is to show that a MSOL remains unjustified by showing that none of the arguments arising from these discussions succeed. (shrink)

: My aim in this essay is to remove some of the rubbish that lies in the way of an appropriate understanding of rectificatory compensation, by arguing for the rejection of the counterfactual conception of compensation. Although there is a significant extent to which contemporary theorists have relied upon this idea, the counterfactual conception of compensation is merely a popular assumption, having no positive argument in support of it. Moreover, it can make rendering compensation impossible, and (...) absurd notions of compensation can result from its use, results that may themselves constitute injustices. This latter difficulty is most troubling when the CCC is employed in large compensatory cases like the case of rectificatory compensation for the descendants of American slaves. I want to suggest that, taken together, the difficulties with the CCC yield sufficient reason for rejecting it as an acceptable rectificatory notion. (shrink)

Regenerative agriculture refers to a suite of principles, practices, or outcomes which seek to improve soil health, biodiversity, climate, ecosystem function, and socioeconomic outcomes. However, recent reviews highlight wide heterogeneity in how it is defined. This impedes our ability to understand what regenerative agriculture is and has left the movement open to strategic repurposing by diverse stakeholders. Furthermore, the conceptual franchising of the regenerative agriculture debate by Western culture has omitted discussions surrounding social justice, relational values, and the contribution of (...) Indigenous and local knowledge that does not align with Western-centric producer-consumer frameworks. This is a continuation of injustice by creating barriers to representation and participation, and its confrontation will ultimately be necessary for regenerative agriculture to achieve its transformative potential. This article demonstrates that the farming techniques associated with the regenerative agriculture movement today have been practiced for centuries, and in some cases millennia, by Indigenous and local communities around the world. We propose that current Western academic attempts to define regenerative agriculture have resulted in long lists of practices, principles, and outcomes which fall short of describing the whole, because they lack the relational values component that is so integral to these Indigenous and local knowledge systems. We take an urgently needed, Indigenous-informed approach to defining regenerative agriculture, which confronts current epistemic injustice and prioritizes sociocultural and relational values. Finally, we propose an anti-colonial definition that draws on diverse knowledge systems including Indigenous ecophilosophies and published scientific analyses. (shrink)

As a site of colonial conquest, sub-Saharan Africa has experienced colonialism’s historic and continuing harms. One of the aspects of this harm is epistemic. In the analytic philosophical tradition, this harm can partly be theorised in line with the literature on epistemic injustice, although it does not fit squarely. I show this by arguing for what can be understood as a colonial state’s specific manifestation of epistemic injustice. This manifestation takes into account the historical context of colonisation and (...) the continuing coloniality of sub-Saharan African countries. From this, I argue for an approach to remediating this epistemic injustice that relies on the fair-minded pursuit of knowledge. This approach, I briefly argue, gains valuable insights from African epistemological traditions and can be beneficial to other epistemic injustice instances that result specifically from historical cases of oppression. (shrink)

Should contemporary citizens provide material redress to right past wrongs? There is a widespread belief that contemporary citizens should take responsibility for rectifying past wrongs. Nahshon Perez challenges this view, questioning attempts to aggregate dead wrongdoers with living people, and examining ideas of intergenerational collective responsibility with great suspicion. He distinguishes sharply between those who are indeed unjustly enriched by past wrongs, and those who are not. Looking at issues such as the distinction between compensation and restitution, counterfactuals and (...) the non-identity problem, Perez concludes that individuals have the right to a clean slate, and that almost all of the pro-intergenerational redress arguments are unconvincing. Key Features *Unique in claiming past wrongs should not be rectified *Analyses pro-intergenerational material redress arguments *Case studies include court cases from Australia, Northern Cyprus, the United States and Austria, and political and social movements from the US, Palestine and Arab countries. (shrink)

This book aims to help answer two questions that Western philosophy has paid relatively little attention to - what is injustice and what does justice require when injustice occurs? Injustice and Rectification offers a taxonomy of justice, which sets forth an initial framework for a moral theory of justice and focuses on framing a conception of rectificatory justice. The taxonomy is ground for this book's eleven other essays, in which a diverse group of authors brings philosophical analysis to bear on (...) the idea of injustice itself and on some important conceptual and normative issues concerning the rectification of injustice. (shrink)

When an agent suffers in their capacity as a knower, they are a victim of epistemic injustice. Varieties of epistemic injustices have been theorised. A salient feature across these theories is that perpetrators and victims of epistemic injustice belong to different social groups. In this paper, I argue for a form of epistemic injustice that could occur between members of the same social group. This is a form of epistemic injustice where the knower is first a victim of historical (...) and continuing oppression. Secondly, they internalise and appreciate the systems that harm them as a knower. This is possible because the victim subscribes to perniciously formed epistemic systems. This form of epistemic injustice is a valuable explanatory tool for non-standard and obscure instances of epistemic injustice where the victim a) accepts and appreciates the injustice they experience and b) is even the seeming perpetrator of the injustice against themselves. (shrink)

Literature on epistemic injustice has grown tremendously as an increasingly rich and diverse body of work in recent years. From the point of view of intercultural and anticolonial discussions, contemporary contributions have also helped to illuminate how epistemic injustice and other forms of cultural domination might be related to essential processes within the structures of colonial and racial supremacy. -/- This proposal aims to contribute to such relevant and illuminating discussions by focusing on the role that language and culture (...) might have in phenomena of epistemic injustice, particularly, hermeneutical injustice. Despite the central role played by semantics in epistemic injustice studies, the question about whether certain languages could also themselves be the recipients of epistemic injustice has been rather undertheorized. Simultaneously, recent movements to advocate for minority language rights, such as the Linguistic Human Rights Movement (LHR), raise important questions in this connection. -/- In the present paper, I argue that attending to the intercultural context reveals a new sort of hermeneutical injustice, one that, surprisingly, has never been articulated before. In particular, I am referring to a kind of HI that is essentially “linguistic” and “culture-specific”. I will be presenting two different subtypes for this kind of hermeneutical injustice: The first concerns the possibility of considering certain languages themselves as genuine objects of hermeneutical injustice, while the second has to do with certain specific culturally-established expressions or forms of talking. (shrink)

This paper addresses the question of whether astatute of limitations on injustice is morallyjustified. Rectificatory justice calls for theascription of a right to rectification once aninjustice has been perpetrated. To claim amoral statute of limitations on injustice is toclaim a temporal limit on the moral legitimacyof rights to rectification. A moral statute oflimitations on injustice establishes an amountof time following injustice after which claimsof rectification can no longer be valid. Such astatute would put a time limit on the life ofall (...) moral rights to rectification. Sinceascribing a right to rectification for aninjustice is a requirement of justice, andsince the temporal limit called for by astatute of limitations on injustice is aconstraint on that requirement, the idea of astatute of limitations on injustice is morallyjustified only if we have good reasonsfor accepting this constraint. I argue that theidea of a moral statute of limitations oninjustice is not justified, since we lackgood reasons for imposing the constrainton justice it requires. (shrink)

This paper presents a case for compensation of actual harm from climate change in the poorest countries. First, it is shown that climate change threatens to reverse the fight to eradicate poverty. Secondly, it is shown how the problems raised in the literature for compensation to some extent are based on misconceptions and do not apply to compensation of present actual harm. Finally, two arguments are presented to the effect that, in so far as developed countries accept (...) a major commitment to mitigate climate change, they should also accept a commitment to address or compensate actual harm from climate change. The first argument appeals to the principle that if it is an injustice to cause risk of incurring harm in the future, then it is also an injustice to cause a similar harm now. The second argument appeals to the principle that if there is moral reason to reduce the risk of specific harms in the future, then there is also moral reason to address these harms if they materialize now. We argue that these principles are applicable to climate change, and that given the commitment of wealthy countries to a “common but differentiated responsibility,” they lead to a commitment to address or compensate harm from climate change in poor and vulnerable developing countries. (shrink)

To the degree that citizens have participated in, or derived benefits from, social in- stitutions that have helped cause serious, life-threatening, or rights-threatening envi- ronmental injustice (EIJ), this article argues that they have duties either to stop their participation in these institutions or to compensate for it by helping to reform them. (EIJ occurs whenever children, poor people, minorities, or other subgroups bear dis- proportionate burdens of life-threatening or seriously harmful pollution.) After briefly defining “human rights,” the article defends the (...) four-premise responsibility argument. The argument is that people have duties to compensate for the serious, life-threatening, or rights-threatening EIJ from which they benefit, and that this compensation ideally ought to take the form of helping to reform social institutions that help cause EIJ. As such, this responsibility argument relies on two basic claims. One claim is that because citizens have benefited from, and therefore contributed to, EIJ they bear ethical respon- sibility to help stop it. The second claim is that because citizens participate in nations and institutions whose policies and practices help cause EIJ, they also have democratic responsibility to help stop it. The article closes by responding to four basic objections to this argument. (shrink)

The book provides the first systematic analysis of the question of responsibility for historical injustice since the publication of Karl Jaspers The Question of Guilt. Using the methods of modern philosophical analysis, it investigates the reasons and limits of moral and criminal responsibility and offers suggestions for solving the problem of compensation for past injustice.".

In this paper we engage with and contribute to the critical project of highlighting the dilemmas that arise from structurally unequal and unjust social, political, and institutional realities when dealing with past wrongs or, better phrased, historic injustices. We emphasise the present-time character of historic injustices. We think that there is a risk of allochronism in discussing historic injustices mainly as wrongs done in the past. This risk consists in making people forget that redressing these injustices (...) is something to be done in an unjust present structured by domination, and that those very past wrongs and harms helped to shape the present-time condition of structural injustice. As the misplacing in the past phenomena that occur in the present and in one’s practical context, allochronism has the effect that people do not feel responsible for those present-time injustices that derive from wrongs done in the past. Our aim is to propose one way of dealing with this risk of misallocating responsibility (and thus accountability), which consists in intersecting the notion of historic injustices with the notion of coloniality. After showing how an approach oriented by the notion of coloniality helps surmount the negative effects of allochronism and provides a significant complement to a structural approach to injustice (Sect. ‘ Coloniality and Responsibility for Justice ’), we turn to Frantz Fanon (Sect. ‘ Fanon ’) and José Carlos Mariátegui (Sect. ‘ Mariátegui ’) to illustrate the relationship between coloniality and justice and how it is possible to render a construal of ‘past wrongs’ without losing sight of their pervasiveness in the present time. (shrink)

A commitment to engage with the structural and historical processes that result in discrimination and injustice in the utilisation of natural resources and landscapes is an epistemic responsibility that must be achieved in order to imagine a just society in which environmental justice is a feasible possibility. Indian author Bhoopal’s Forests, Blood & Survival: Life and Times of Komuram Bheem (2023), translated from Telugu by P A Kumar, is one such literary narrative that vividly portrays the injustices endured by (...) tribal communities in India at the hands of colonial forest officers, money lenders, capitalist extractive authorities, and other oppressive authorities. In this context, the article explicates this narrative of tribal communities to demonstrate and encourage alternative viewpoints and positions of tribal cultures that may confront the dominance of colonial-capitalist logic as a monolithic framework in environmental discourse. In doing so, the first section discusses the natural environment of the tribes and their way of life, followed by an intervention on the colonial brutality and injustices that tribals have been subjected to, and finally, how their resistance is deemed to be subaltern environmentalism. (shrink)

It has been argued that most countries that had been exposed to European colonialism have inherited a Western Christianity thanks to the mission societies from Europe and North America. In such colonial and post-colonial (countries where the political administration is no longer in European hands, but the effects of colonialism are still in place) contexts, together with Western contexts facing the ever-growing impact of migrants coming from the previous colonies, there is a need to reflect on the possibility (...) of what a non-colonial liturgy, rather than a decolonial or postcolonial liturgy, would look like. For many, postcolonial or decolonial liturgies are those that specifically create spaces for the voice of a particular identified other. The other is identified and categorised as a particular voice from the margins, or a specific voice from the borders, or the voices of particular identified previously silenced voices from, for example, the indigenous backyards. A question that this context raises is as follows: Is consciously creating such social justice spaces – that is determined spaces by identifying particular voices that someone or a specific group decides to need to be heard and even making these particular voiceless (previously voiceless) voices central to any worship experience – really that different to the colonial liturgies of the past? To give voice to another voice, is maybe only a change of voice, which certainly has tremendous historical value, but is it truly a transformation? Such a determined ethical space is certainly a step towards greater multiculturalism and can therefore be interpreted as a celebration of greater diversity and inclusivity in the dominant ontology. Yet, this ontology remains policed, either by the state-maintaining police or by the moral (social justice) police. Contribution: In this article, a non-colonial liturgy will be sought that goes beyond the binary of the dominant voice and the voice of the other, as the voice of the other too often becomes the voice of a particular identified and thus determined victim – in other words, beyond the binary of master and slave, perpetrator and victim, good and evil, and justice and injustice, as these binaries hardly ever bring about transformation, but only a change in the face of master and the face of the slave, yet remaining in the same policed ontology. (shrink)

This paper presents an overview of the dimensions of unsafe motherhood, contrasting data from economically developed countries with some from developing countries. It addresses many common factors that shape unsafe motherhood, identifying medical, health system and societal causes, including women's powerlessness over their reproductive lives in particular as a feature of their dependent status in general. Drawing on perceptions of Jonathan Mann, it focuses on public health dimensions of maternity risks, and equates the role of bioethics in conscientious medical care (...) to that of human rights in public health care. The microethics of medical care translate into the macroethics of public health, but the transition compels some compromise of personal autonomy, a key feature of Western bioethics, in favour of societal analysis. Religiously‐based morality is seen to have shaped laws that contribute to unsafe motherhood. Now reformed in former colonizing countries of Europe, many such laws remain in effect in countries that emerged from colonial domination. UN conferences have defined the concept of ‘reproductive health’ as one that supports women's reproductive self‐determination, but restrictive abortion laws and practices epitomize the unjust constraints to which many women remain subject, resulting in their unsafe motherhood. Pregnant women can be legally compelled to give the resources of their bodies to the support of others, while fathers are not legally compellable to provide, for instance, bone‐marrow or blood donations for their children's survival. Women's unjust legal, political, economic and social powerlessness explains much unsafe motherhood and maternal mortality and morbidity. (shrink)

This paper presents an overview of the dimensions of unsafe motherhood, contrasting data from economically developed countries with some from developing countries. It addresses many common factors that shape unsafe motherhood, identifying medical, health system and societal causes, including women's powerlessness over their reproductive lives in particular as a feature of their dependent status in general. Drawing on perceptions of Jonathan Mann, it focuses on public health dimensions of maternity risks, and equates the role of bioethics in conscientious medical care (...) to that of human rights in public health care. The microethics of medical care translate into the macroethics of public health, but the transition compels some compromise of personal autonomy, a key feature of Western bioethics, in favour of societal analysis. Religiously‐based morality is seen to have shaped laws that contribute to unsafe motherhood. Now reformed in former colonizing countries of Europe, many such laws remain in effect in countries that emerged from colonial domination. UN conferences have defined the concept of ‘reproductive health’ as one that supports women's reproductive self‐determination, but restrictive abortion laws and practices epitomize the unjust constraints to which many women remain subject, resulting in their unsafe motherhood. Pregnant women can be legally compelled to give the resources of their bodies to the support of others, while fathers are not legally compellable to provide, for instance, bone‐marrow or blood donations for their children's survival. Women's unjust legal, political, economic and social powerlessness explains much unsafe motherhood and maternal mortality and morbidity. (shrink)