Reparations within the Rule of Law

At the upcoming reparations conference, I will speak on the topic of reparations within the rule of law. My paper is still (ahem) a work in progress. However, I know the structure of my remarks, and I just turned in my abstract (so that our publicity folks could get to work on the printed materials). The abstract of my presentation is as follows:

Kaimipono David Wenger

Reparations within the Rule of Law

The question of reparations for slavery raises a number of concerns. One important question is whether reparations can fit within the rule of law. This question relates to underlying concerns about who defines the rule of law and what the rule of law includes.

The rule of law is a broadly respected concept in legal discourse, and is viewed as an important element undergirding society’s interaction with the law. A strong rule of law creates several benefits for individuals and for society. The rule of law can serve as a safeguard against certain kinds of tyranny and oppression. In addition, a perception of a robust rule of law lends legitimacy to laws and legal regimes, and streamlines legal experience.

The rule of law as a concept is not always well defined. At its most basic, the concept requires that individual interactions with law be based on application of law rather than arbitrary exercise of power; that laws be equally applied to all individuals; and that laws be knowable and performable. Some influential formulations of the rule of law, such as that offered by A.V. Dicey, follow this basic structure and are almost entirely procedural in nature. Such exclusively procedural formulations are not universally accepted, however, and longstanding debates exist on whether the rule of law is capable of bearing substantive content.

Slavery reparations present special challenges to the rule of law. Reparations potentially involve the transfer of large amounts of money to a class of people – descendants of an original harmed group – who are seeking payment over a century after the initial harm. In addition, the cost of this transfer will necessarily fall on at least some parties who are not morally culpable for the original harm. These aspects of reparations raise complex concerns relating to the rule of law, which should be addressed before any restitution is possible. While these concerns are certainly reasonable, examination of the broader rule of law concerns shows that the greatest offense to the rule of law would arise from not paying reparations.

Reparations are an acknowledgment of the displacement of the rule of law under slavery, a displacement which in turn created a regime of lawlessness and repression. Slavery was only made possible through the removal of rule of law protections as applied to one segment of the population – Blacks. The denial of rule of law protection for Blacks did not end with slavery, but continued for a century or more after slavery’s end. Blacks were denied civil and political rights and meaningful participation in the political process until the civil rights era; even today, they struggle for equal rights.

Given this background, reparations serve as a form of atonement – a crucial signal to the Black community that society wishes to atone for its error and take concrete steps to repair the damaged community. Absent such a signal, the rule of law breach that began with slavery will continue, unhealed. The consequences of the breached rule of law – resentment, distrust of law, a perception that law is beholden only to power – will continue to negatively impact society and undermine faith in the rule of law.

Societal expression of remorse for rule of law breaches – coupled with concrete steps to ameliorate the harm – is a necessary step in repairing the damage done by slavery to the rule of law. Reparations show societal will to set things right following the removal of the rule of law protections for Blacks. They are also a way of affirming that such breach of the rule of law will not recur. Thus, payment of reparations allows society to move forward, and encourages disadvantaged groups to regain confidence in the rule of law. Not only are reparations consistent with the rule of law, they are in fact a product of the rule of law.

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13 Responses

  1. John Jenkins says:

    You lose points for using impact as a verb, a sure sign of jargon. Critical race theorist maybe?

    At least you recognize the moral problem (people who did nothing wrong having to pay for others morally bad acts). But do you recognize that, to at least some degree, government has already tried to do what you seem to indicate reparations will do with other efforts (e.g. affirmative action)? These have not been successful and there’s no reason to believe that reparations would be any more successful than those efforts.

    If you really want to cure the problems, stop funding elementary and secondary education through property taxes. (that still won’t be entirely successful, given what passes for pedagogy today, but it will do more than AA or reparations).

  2. Al Brophy says:

    John, I disagree that all previous reparations efforts have been unsuccessful–I think the great society (which many people talk about as a form of reparations) was a benefit to our entire nation. But I’m not going to restart that discussion right now.

    And I’m with you on reforming dramatically the funding of primary and secondary schools. Improving public education is a noble and worthy goal; but it is not inconsistent with reparations talk. In fact, reparations might be a basis for arguing for reform. (One of the shames of Jim Crow was its abysmal separate public education system.)

    As to Kaimi’s paper: the rule of law has made a huge comeback in recent years. Remember how E.P. Thompson was attacked for his appendix on the rule of law in Whigs versus Hunters? Very interesting how our attitude towards the rule of law changes over time.

    Appeals to the rule of law are American as apple pie–and it’s significant that people on both sides of many political debates (slavery vs. anti-slavery; Reconstruction proponents vs. “redeemers”; proponents of Jim Crow vs. its attackers) appeal to the rule of law. I was struck in particular by how much Thomas Dixon’s novel The Clansman appeals to the rule of law–at about the same time as those opposing lynching and the second Klan (which was inspired in part by Dixon) appealed to the rule of law to stop lynching.

    Looking forward to your paper, Kaimi.

  3. logicnazi says:

    Whoa, you were nice and carefull there for the first couple paragraphs but then you leap for your conclusion with careless abandon.

    The first place where the argument begins to get questionable is the claim, “Reparations are an acknowledgment of the displacement of the rule of law under slavery, a displacement which in turn created a regime of lawlessness and repression.” Now slavery was obviously a very bad situation morally but in what way was it lawless? If faithfully applied bills enacted by a significantly more representitive government than most of pre-colonial english law you are in the danger of arguing that the very basis of our legal system was not ‘lawfull.’ Your argument only seems to go through if you are simply defining law to be that which is right.

    Yet if you are doing that then what you actually need to establish is that giving reparations is right not that slavery was a violation of right. There are simply many cases where paying compensation for a true violation of ‘right’ is not in itself right. For instance should the scandinavians be paying reparations for Viking raids in the middle ages? While surely the two situations are not the same the point is that it isn’t as simple as saying that ‘wrong was done hence compensation must be mage’.

    Even if you have some other conception of law and can show that this was broken reparations is obviously not now part of the law. If it was part of the law you would be arguing that the supreme court would be right in requiring reparations now without act of congress, despite the explicit acceptance by the original constitution of slavery, the principle that one can’t be held responsible for one’s father’s crimes, and the lack of any authorizing statute or constitutional doctrine. Since I suspect you are not arguing that reparations is required by law in this sense what you are really arguing is that reparations should be required by law.

    Yet unfortunately you give no reason to believe that reparations should be required other than ‘someone was wronged.’

  4. logicnazi says:

    Ohh and the “law be equally applied to all individuals buisness” doesn’t even seem to be well defined.

    There is no formal difference between the laws that say, “Blacks are not allowed to drink at white’s only fountains,” and those that say, “People under 4 foot are not allowed to ride amusement rides of type X.” Both laws forbid a certain immutable class from a certain activity. The difference is that we think one law is ‘fair’ because it has a good effect (protecting people from being injured) while the other is ‘unfair.’ Yet people used the same justification (this case fear of hurt from racial violence) to claim that Jim Crowe was valid law and if Jim Crowe is valid law I don’t see how “If you skin is black you can be owned.” is a formally invalid law.

    Of course morally the laws are quite different but the point is there is no fact about what is an ‘equal application’ seperate from our judgements of likelihoods (extremely bad racial violence) and our values. Yet surely something does not need to be based on our value judgements (blacks are just as good as whites but animals are not on the same level as people) to count as law so it is unclear how you can establish that slavery was genuienly unlawfull.

  5. meep says:

    I’ve got a couple of questions — how would my cousins (black mother, white father) get reparations? Would they get only 50%? (my aunt and uncle got married after the civil rights movement, and these kids have just graduated college.) Is there a measurement of % blackness? Is there a one-drop rule? Will there be a paper bag test? How could we make sure the children of more recent African immigrants don’t dip into the reparations pool? Could the descendants of Union soldiers make a claim to reparations, too? Would I have to pay more taxes because I have Confederate soldiers as ancestors?

    It’s nice to talk about theories of justice, but the reality is that if the idea is to give a direct cash payoff, there’s no practical way of doing it without some really bad injustices and a heightening of racial enmity.

  6. Ken Arromdee says:

    I’m waiting for the reparations for my Jewish ancestors being enslaved by Africans in Egypt. It was quite a while ago, so the interest should have really piled up by now.

    It would be particularly useful to have these reparations available to offset the cost of the reparations I’d have to pay to other people.

    Funny how people who ask for reparations always want there to be a cutoff so that what was done to their ancestors requires payment, but what their ancestors did to someone else doesn’t.

  7. Sarah Simkovitch says:

    I’ll combine this post with the one above it: I wonder if the reparations movement is a conspiracy by conservatives to marginalize the civil rights movement with a set of claims so politically unrealistic, unworkable, and bizarre that it manages to keep activists from working on more promising projects. I mean, who thinks that this stuff actually has a chance of working in the real world? Karl Rove must love it. I’m just sayin’.

  8. Humble Law Student says:

    My father immigrated to the US in the 60s, so why should he have to pay?

    What about families who ancestors died fighting for the North? What kind of twisted notion of justice would demand payment from the descendants of those who gave the ultimate sacrifice?

    While this argument may be rather inflammatory, here it goes. For the immense suffering that blacks endured under slavery, the average African-American is substantially better off than 99% of blacks in Africa. This does not justify what happened to the slaves, but they have had access to the most important source of “reparations” – access to the wealth creation possibilities of the United States and have benefited enormously from it.

    Also, if we demand reparations from America as a society, why aren’t we demanding reparations from the blacks left in Africa? From what I’ve read, huge numbers of the blacks were sold into slavery as a result of African tribal feuds and wars. Many, if not most of the slaves, would never have become such if it weren’t for the fact they were sold by fellow Africans to the slave traders.

    As well, we already have a system in place that practically operates as a vehicle for reparations: welfare and other such services. While whites make up a larger percentage of the welfare rolls, blacks are highly overrepresented per their percentage in the general population, resulting in a direct transfer of wealth from society to blacks specifically.

    Finally, there is little to indicate that such a massive transfer of wealth would really do much to alleviate any current suffering of blacks. The blacks who need it most are likely not to use it wisely (those far down the socioeconomic ladder usually don’t have the skills and/or education to make proper use, regardless of skin color). While the ones who could use it wisely, the wealthier and more successful, don’t really need it as much.

  9. Dylan says:

    Logicnazi wrote:

    “Now slavery was obviously a very bad situation morally but in what way was it lawless? If faithfully applied bills enacted by a significantly more representitive government than most of pre-colonial english law you are in the danger of arguing that the very basis of our legal system was not ‘lawfull.’ Your argument only seems to go through if you are simply defining law to be that which is right.”

    This is true, but it doesn’t go nearly far enough. It was, in fact, the freeing of the slaves that was pretty clearly lawless and not in accordance with the rule of law. If we’re to base reparations on this principle, it’s the plantation owners’ descendants who should receive a check.

  10. Simon says:

    For all the reasons offered by other commenters above, and many more, I simply can’t avoid the conclusion that “reparations” for slavery – a dubious term in any instance, frankly – is a flawed solution to an illusory problem, which faces insurmountable practical and moral objections. To advocate it is essentially to argue that people who have personally done no wrong be robbed to pay people who have not been personally wronged.

    One hopes, Kaimi, that your paper will lay out precisely who will pay whom, and how much – or at least, outline a prospective methodology by which one could reach those conclusions.

  11. Kaimi says:

    Well, lots of comments. I’ll start from the bottom.

    Simon, my paper is a 20 minute conference piece focusing on a specific issue — namely, rule of law concerns. My roadmap for this piece is pretty clearly laid out in the initial post. There’s no way I’m laying out a payment matrix in this piece, sorry. A number of articles have discussed distributional concerns. (See, e.g., Robert Westley’s piece or Roy Brooks’ book). They aren’t my area — I haven’t focused on them in my past work, and I’m not focusing on them in this piece.


    Slave owners are owed all the compensation that is normally given to owners of stolen property.

    Humble Law Student,

    My original post didn’t elaborate on a theory of causation. There are various strands in the literature discussing the payment obligation of later arrivees. They basically divide into three major categories: Unjust enrichment; later arrivees later shareholders; and general obligation of society to repair breaches. The unjust enrichment prong focuses on the benefits that later arrivees receive from the economic legacy of slavery. The shareholder model focuses on the corporate entity of the United States — if you buy stock in a company, as a shareholder, you may end up on the hook for prior obligations. Anyway, there is a good deal of writing on the topic, but it’s way beyond the scope of this post, or of my own conference piece.


    And we’re back to distribution. I don’t doubt that any distribution will be difficult and complicated. That said, difficult and complicated distribution frameworks have been put into place before, as in the mass tort context.


    You’re right that I’m using a model of the rule of law that includes more substantive content than is the norm in American jurisprudence. I think that this is sustainable, and hopefully my paper will establish this.

  12. Ken Arromdee says:

    Wouldn’t the unjust enrichment route mean that black people already got “reparations” by living in the United States and therefore benefiting from the economic legacy of slavery in the same way that a recent immigrant did?

  13. Drew says:

    The point that many people missed is that white Americans received the benefits of slave labor which has been handed down from one generation to the next. Resources that should have been owned by blacks were handed down to the children and grand children of white slave owners.