Posner and Vermeule seek to describe the options available to those who advocate (or oppose) reparations. They do not take any position themselves on the propriety of reparations for slavery or other historical wrongs. Rather, they seek to identify the different ways of arguing for reparations.
I find their article is valuable for two reasons. First, they taught me that reparations claims are a lot more common than I had appreciated. Second, they introduce some distinctions that help us to clarify exactly what we mean when we are talking about reparations.
Posner and Vermeule draw distinctions between two grounds for reparations and three and a half ways of characterizing the parties who either have to pay the reparations or who are to receive the reparations.
The two grounds for reparations are compensation for harm and restitution. The difference is that reparations owed as compensation for harm have to be paid by the person who committed the injustice. Reparations paid as restitution only require that the person making the payment has something that rightly belongs to the person being paid. The person paying need not have done anything wrong to the person being paid (other than holding the things in question, presumably).
They characterize Boxill’s article as basing the argument for reparations on a claim of restitution. That seems right to me. He is not saying that reparations compensate the victims for the harm done to them: they are dead, after all. He says that reparations are based on returning goods to people who should have them. That fits the model of restitution.
The three and a half ways of characterizing the parties are as follows:
Hard ethical individualism: only individuals have rights or duties, so reparations have to be the responsibility of individuals and owed to indviduals.
Soft ethical individualism: groups can have rights or duties and so can receive or owe reparations. They describe two cases.
In one, the group’s members join it voluntarily and so they voluntarily accept its rights and duties as well.
In the other, a corporate body such as a corporation or government, is treated as a moral person on its own, with its shareholders or citizens inheriting the benefits and costs and benefits of its rights and duties (Posner and Vermeule 2003, 703–4).
Ethical collectivism: groups can have rights or duties and so can receive or owe reprations. Ethical collectivism differs from soft ethical individualism in its understanding of the relationship between individuals and groups. Individuals are not members of groups because they have voluntarily joined the group or because they participate in a group’s formal structure (by being a shareholder or citizen). Rather, they belong because they derive their identity from the group (Posner and Vermeule 2003, 706–7). The kinds of groups that ethical collectivists have in mind include nations and races.
Finally, there is something they call “moral taint.” The idea is that people may have either duties or rights based on the “taint” that comes from their association with a group (Posner and Vermeule 2003, 709–11). They introduce moral taint in order to provide an alternative to ethical collectivism. Even people who do not think that individuals derive their identities from membership in a group like a race or nation sometimes feel responsible for what other people have done. This is a general phenomenon that spans all varieties of ethical individualism and ethical collectivism: I can be embarrassed by, and feel compelled to apologize for, my friend, my team, or my nation.
I think this is where they are going with moral taint. Even if you buy hard ethical individualism, you might still feel this taint. If making reparations removes the taint, you might feel responsible for doing so even though you don’t think you are responsible for the original wrong. That’s the idea. I think. (Because I am uncertain about what to make of moral taint, I call it a “half” view.)
In any event, leaving moral taint to the side, the borderline between soft ethical individualism and ethical collectivism is not sharp. I take it that they think there is a middle territory between the extremes of hard ethical individualism and ethical collectivism. The idea is to find corporate bodies that meet two conditions.
First, the corporate bodies seem like the kinds of things that can be held responsible. Corporations and governments are parties to lawsuits, for example, so they seem to fit the bill.
Second, there is a reasonably close relationship between the individual members of the corporate body and the corporate person. The idea is to make the relationship close enough so that when the members bear the costs of holding the corporate body responsible, there will not be too great a departure from the idea that individuals can only be responsible for their own actions.
I think you can legitimately ask whether there is a viable middle position like that. Many of us think there is, but it might turn out that we cannot spell it out in any satisfying detail. I take it that Posner and Vermeule are making a conditional point: if there is a satisfying version of soft ethical individualism, as most of us believe, then it could be used in reparations schemes in ways X, Y, and Z. But you should feel free to think that our unreflective thought that there is a middle position cannot actually be spelled out in satisfying detail.
Posner and Vermeule believe that the case for reparations is going to be most difficult to make for those who believe hard ethical individualism is true and easier if you assume that one of the other, more collectivist, accounts of moral parties is true.
There are two ways you can go with that kind of argument. Suppose you think that reparations really do not make sense unless ethical collectivism is true. You might reason like this: “I cannot believe that ethical collectivism is true, ethical collectivism is the only account that could make a case for reparations, therefore, there is no case for reparations.”
Or you could reason like this: “I cannot believe that there is not a strong case for reparations, ethical collectivism is the only account that could make a case for reparations, therefore, ethical collectivism must be true.”
Posner, Eric A., and Adrian Vermeule. 2003. “Reparations for Slavery and Other Historical Injustices.” Columbia Law Review 103 (3): 689–748.