Historical Redress

Must We Pay for the Past?

Richard Vernon

• Publisher: Continuum
• Year: 2012
• ISBN:
  9781441159786
• Edition: 1
• Topic: Philosophy
• Subtopic: Political Philosophy

Should the British Museum return the Elgin Marbles to Greece? Should settler societies in North America and Australasia compensate the aboriginal peoples whom they dispossessed? Should Israel have accepted Germany's compensation for Nazi extermination policies? The last twenty years have seen a remarkable surge of political and ethical interest in historical redress - that is, the righting of old wrongs. In this fascinating book, Richard Vernon argues that whatever the kind of redress that's at issue, and whether the wrong is large or small, an important philosophical issue arises. Exploring recent and high profile cases, Vernon focuses on the issue of responsibility. Responsibility isn't something inherited, like property or one's DNA. How, then, can it fall to one generation to make good the wrongs done by another? The book addresses all the main issues and arguments relating to justice, memory, apology and citizenship, and concludes by arguing for a forward-looking approach that focuses on the right of future generations to live just lives.

1

DOES THE PAST
HAVE RIGHTS?

Many atrocious things have happened in the past. Anyone with any sort of moral sense, however primitive, must regret them deeply, and not to regret them is to read oneself out of the human race. ‘Regret’ is of course far too tame a word – many appalling things in the past horrify, disgust and distress us, and may literally go beyond our comprehension. But we can regret and even be horrified and disgusted by things without always having a responsibility to do anything about them. Some, for example, may be distanced from us by space – if we are not Japanese, our responsibility (as distinct from our revulsion) is not engaged by the atrocities committed by the Japanese army in Nanking, China, in 1937: not at all because we do not think they were horrific – we have seen the newsreel footage – but because they are not ours. Others may be very distant in time – the pitiless ways in which the Roman Empire punished slave rebellions, for example, or in which medieval European societies treated witches or heretics. So if we have to make redress for any past injustices, those injustices must be shown to survive, in some way or other, in our present. They have to be somehow connected to us. As the Introduction suggested, this may be the most difficult single issue posed by the idea of historical redress, from an ethical point of view.

Perhaps the hardest case of all to deal with is the sort that involves deceased generations. When survivors of past atrocity or oppression still live, we can do something – however inadequate – for them. There are survivors of British oppression in Kenya (who are actively pressing their case for redress, at the time of writing): Some South-East Asian ‘comfort women’ still live, and demand apology and reparations from Japan; there are survivors of the residential schools that were forcibly imposed on native populations in North America and Australia; there is a dwindling number of Holocaust survivors. It is not too much of a stretch to add the victims’ immediate relatives, whose lives were transformed by their loss, to this list. Alternatively, when some object – land, an artefact – was wrongfully taken, it may still exist even if its original owners do not, and we can at least think about what ought to be done with it: Should looted art, for example, be restored to its country of origin? But when a wrong was done to people’s lives or freedom or dignity, and those who suffered it are now deceased, an especially severe version of the ‘that was then’ issue, mentioned above, comes into play: not only was that then, some might say, they were then, and the idea of making redress seems at least one large step removed from what we might do in terms of compensating living survivors or victims’ close relatives, or returning some existing object to its historical owner. It is not the distance in time, as such, that explains why no claims for redress arise from the Crusades, but, as one writer has said, ‘the lack of claimants’.¹

For that reason, it is attractive to think about the idea that although victims of wrongdoing do not themselves survive, something about them, some important feature or property of theirs, does survive; and the most promising avenue is to consider whether or not their rights do. If so, that opens up the possibility that although we can do nothing for them as persons, we can still think about ways of doing something about their rights, as things that in some way represent them or stand in for them in the present. That makes some idea of redress at least thinkable, and if a case can be made out, it will lead us to a distinctive (and important) position. For as we shall see in later chapters, approaches to redress frequently stake out their position in relation to present circumstances: the present effects of past injustice, for example, or the present possession of what was once unjustly taken away. Uniquely, however, the approach based on the ‘rights of the past’ addresses itself to something that can be done for those who are deceased – that is, to respect their rights. This may seem, initially at least, a puzzling idea; but, if nothing else, it has the great merit of focusing on past injustice itself, rather than on its present effects. So, convincing or not, it is certainly on point.

This chapter discusses three versions of the ‘surviving rights’ approach. The first version draws on the familiar idea that we respect the rights of deceased people when we execute their wills and fulfil promises made to them: Does this show that past generations can have rights, in a way that could make sense of historical redress? The second concerns victims of injustice who have surviving descendants: Can we say that the victims had an interest in the well-being of their descendants, and so, perhaps, a right that we should treat them well? The third concerns people who were killed, or whose lives were drastically shortened, by oppressive regimes, and it draws upon a paradox that has intrigued philosophers: If we are to say (as surely we do) that their rights were violated, doesn’t that mean that we must believe in posthumous rights – in rights that continue after the death of those who possessed them?

The chapter will argue that the first and second of these approaches do not do what we need to do in order to arrive at a theory of redress. The third comes closer, although it may initially look like a bit of detour, and also has to take a twist and turn in order to become usable for our purposes in this book. But before all this gets under way, we need to pause for a moment to think about the idea of rights itself: Why are people’s rights so important that their survival into the present – even if it could be demonstrated – would make a difference to what we should do?

Why rights matter

Rights are very powerful things, from an ethical point of view. They cannot properly be ignored, or set aside just because it is convenient for governments or societies to do so, even if by doing so they could do things that would otherwise be considered good. Rights, according to one very influential statement, are ‘trumps over some background justification for political decisions that states a goal for the community as a whole’.² In this way, rights differ from ordinary ‘interests’. We can of course hope (if we are optimists) that all our interests will be protected, and do what we can to see that they will be, but we cannot say that we are actually entitled to their protection, or that we are wronged if someone overrides them. I have an interest, for example, in being allowed to park my car outside my house as long as I wish, that is to say, I can derive some advantages from being allowed to do so, in terms of pursuing various purposes of importance to me. But suppose traffic on my street greatly increases and the city decides that to maintain good traffic flow, the street must have four clear lanes with no parking allowed: My interest may (and reasonably) be overridden by the interests of the larger number of people who need my street to become a free-flowing traffic artery. Rights, however, cannot be overridden just like that. I have a right to a fair trial, for example, and the government must not dispense with a fair trial just because the courts are really busy right now, or because it wants to make an example of my misdeeds in a prompt and efficient way. It has to bear the costs of providing people with trials, costs that are very considerable, for they include not only the direct costs of maintaining courts, prosecutors and defence lawyers, but also a whole infrastructure of legal education so that such things as courts and lawyers can exist, plus a whole system of policing and detection and punishment so that trials can be conducted and their outcomes enforced.³ If rights were overridden by a refusal to pay the cost of protecting them, they would mean nothing at all.

That is not to say that rights cannot ever be overridden. One right, after all, may have to be overridden, or at least compromised in some way, because it conflicts with some other right. (That is the limitation of the ‘trump’ metaphor quoted above – sometimes, as is not the case in the game of bridge, it is as though there is more than one trump.⁴) My indisputable right to play my favourite Cajun music may have to be constrained, at night, in consideration of my neighbour’s equally indisputable right to sleep. My indisputable right to my property may have to be overridden if you need to cross my land in an emergency – if the straightest route to the hospital happens to be across my front lawn. But rights are at least very hard to override or compromise: They demand our serious attention, and only something very compelling, such as a still more urgent right, can override what they require.

So, if it is true that the victims of past injustices have rights that survive their death, the injustices that they suffered will demand attention even if it would be convenient to ignore them, or annoyingly expensive to respect them. (Trials, as just noted, are very expensive – but we still have a right to them.) People alive now would not be free to ignore them: They would amount to strong constraints on policies that governments, or voters, might really much prefer to adopt or pay for, if they could get away with it. Rights, in short, are ethically important obstacles to things that might be convenient to do – such as, notably, forgetting the past. And attending to them is not an optional matter, or one that falls into the realm of our discretion, or our freedom to follow our preferences or do things to suit our own interests. Can we say, though, that the rights of past generations have this sort of compelling force? If so, the case for redress will be very attractive.

The testamentary model

When the topic of the rights of deceased people comes up, it is both common and natural to think of what looks like a really simple case: the right of people that their legal wills should be executed. This is certainly a familiar case in which it makes sense to think of deceased people as having rights that survive their death. But – unfortunately for this version of the argument for historical redress – it does not do what is needed to support that argument. While they are alive, people (or most people) have a strong interest in what happens to things that they have worked for, or else value for some other reason, after their death. Legal arrangements for the making and execution of wills reflect and respect this interest, which is actually best thought of as an interest of living people, even though it bears upon what happens after their death. To be sure, we continue to respect and execute wills after the death of those who have made them, but unless we had this ongoing practice, the whole business of making wills would, obviously, make no sense at all, and the interest of living people in distributing their property would not be respected. So what is really at stake is the interest of living people, not of deceased people, in the reliability of a social and legal arrangement.⁵

A generation of cynical and unfeeling people could refuse to honour wills on the grounds that those who had made them could no longer know or care about whether or not they were honoured. But then the cynical and unfeeling generation would not be entitled to rely on the practice themselves, knowing that their descendants would be entitled to be no less cynical and unfeeling than they were. (The idea that each generation has obligations to the past as part of a ‘chain’ of this kind is an important idea that we shall discuss in Chapter 4.) When we say, then, that deceased people have a right that their wills be honoured and executed, we are really talking about rights that make sense as part of an accepted, established intergenerational practice that, just because it is an ongoing one, creates expectations that certain things will be done. There clearly isn’t any such thing, though, in the case of the sort of events that attract historical redress. There isn’t an established legal practice here that gives people rights. Rather, the argument is reversed in this case, the idea of rights preceding the practice, and calling for it, instead of following from it: because oppressed people had rights, the argument goes, we must develop a new practice that respects them. For the practice of respecting the rights of people certainly is not one that victims of chronic oppression could, when living, have relied upon – what they were painfully accustomed to, in fact, was a system that was based on the wholesale and systematic violation of their rights. So we have to explain its basis in some other and quite different way – not in terms of their ‘expectations’.

The second case that naturally comes to mind, that of making promises to people on their deathbed, leads to the same sort of result. If a dying person asks you to look after, say, his or her library of precious books, and you promise to do so, we do not suppose that, as soon as he or she dies, you are free to pack up the book collection and take it to Sotheby’s for auction, on the grounds that the person in question would not know about it. But again, it seems that the best way to explain this is in terms of the interest of living people in maintaining a practice – not a legal one this time, but an ethical one. We think the practice of making promises is important to the way human life is carried on, we know it could not be carried on if people were free to break promises when, for any reason, they could do so without consequences for themselves, and so deathbed promises should be honoured for much the same reason as wills.⁶ So again, what we need for historical redress is some kind of argument that does not depend (only) on the interest of living people in maintaining some kind of practice. What we need is an argument that shows that rights survive death even when their survival does not depend on some important interest of people who are still alive. Otherwise, isn’t it much simpler and more compelling to explain what is required in terms of the unproblematic idea that living people have important interests?

We (meaning here people in Western societies) do not always act as though we had obligations to respect what deceased people expressly wanted, and in some cases, it isn’t even entirely clear that we should.⁷ A case in point is the archaeological exploration of buried remains.⁸ When kings in ancient times caused themselves to be buried, with their prized possessions, in elaborately defended structures, they could hardly have made it plainer that they wished their remains to be undisturbed. But exploration of their tombs is so crucial an activity in understanding ancient civilizations that their wishes are hardly likely to be respected. (Ironically, of course, it is exactly the monumental nature of the defences that they built that attracts the attention of both altruistic archaeologists and mercenary tomb robbers.) Shakespeare’s gravestone, in Stratford-Upon-Avon, is inscribed with a simple rhymed plea that his remains not be disturbed: but it is very doubtful indeed that this plea would be honoured if DNA analysis were to be needed in order to settle disputes about the identity of a national cultural icon. No doubt our willingness to disturb graves reflects the fact that we give no credence to the ideas that led the deceased to forbid the practice: We do not accept pre-Christian beliefs that deceased kings would need their ships and jewellery in the afterlife, or – most of us – Christian beliefs in the resurrection of the body. But, actually, that only makes the point more strongly. Not only are we prepared to violate what particular deceased people would have demanded as something due to them, we are also prepared, it seems, to discount whole schemes of belief within which their demands made sense to them.

Our interests survive us

But let us turn to the second model. The case of African slavery is best suited to bring it into play. While the slave trade was in operation, about 14 million Africans were seized and transported, under vile conditions, to plantations and households in North and South America and the Caribbean. (There are several estimates of the numbers: Some are higher, some lower.) Legally classified as property rather than as people, their most basic interests as human beings were systematically violated. They were physically abused, sometimes branded or otherwise mutilated. They were compelled to work under harsh and degrading conditions. They were subjected without recourse to the arbitrary will of their owners. They could be bought and sold. No one who knows anything of the facts of African slavery could refuse to believe that a response to them is called for, even though so much time has passed – doubts, if any, arise only because no response seems anywhere near adequate, because the damage that was suffered is beyond repair.

But is it? Perhaps one of the victims’ major interests survives. No one could doubt that the disruption of families, and the terrible prospects that slaves knew to face their children, were among the most unbearable costs of slavery. Slaves were drawn from a cultural background in which family life was highly valued; and in the conditions in which they were compelled to live, family life was – if they were lucky – the only area in which they could enjoy any of the essential features of a human life. And we can certainly suppose that, among their interests, there was an interest in promoting the well-being of their descendants. One philosopher has written:

One of the ways in which we can benefit the dead, if we can benefit them at all, is by promoting the welfare of their descendants. Most slaves probably cared very much about the welfare of their descendants, so the United States could provide reparations to the slaves by promoting the welfare of their descendants.⁹

I have put part of this quote in italics in order to stress the point that, in this argument – as distinct from the arguments that we will consider in Chapter 2 and 5 – it is the deceased slaves themselves, not living African-Americans, who are owed something. While we can no longer do anything, for example, to remedy the inhumanly cruel and often lethal conditions that were suffered by slaves as they crossed the Atlantic, promoting their descendants’ well-being is actually within our grasp. Their descendants exist, and there are certainly things that can be done to promote their well-being: affirmative action policies in employment, admissions quotas in professional schools, scholarship programmes and so on. Even acts of redress of a non-material kind, such as memorial events recognizing the wrong of slavery, could be understood as contributions to the slaves’ descendants’ well-being, to the extent that, in some more indirect way, they tend to improve their relative social position by diminishing prejudices against them.

I see no reason why, if we decide that this interest of deceased slaves survives, we should not speak of it in terms of rights. It meets all the standard tests. Above, to be sure, we distinguished rights from ordinary interests, or interests that can simply be overridden...

Table of contents

• Cover
• Half-Title
• Introduction
• 1    Does the past have rights?
• 2    Who benefits?
• 3    What memory calls for
• 4    Because we are who we are
• 5    Back to the future
• Conclusion
• Notes
• Bibliography
• Index