Overview

We are seeing how a historical theory of justice, such as Nozick’s, works by considering Boxill’s case for reparations. This involves an analogy with a bicycle theft. Suppose someone took a bicycle, gave it to someone else, and the original owner died. The person who received the bicycle, no matter how innocent, should return it to whoever is the heir to the original owner’s estate. That’s the idea.

However, as Boxill notes, reparations for slavery won’t involve anything as simple as returning concrete items like bicycles. The effects of slavery are too pervasive. So how are we going to figure out who owes what to whom?

We are going back to Nozick for an answer that we called the counterfactual test. Remember Nozick’s principle of rectification? He actually makes a fairly concrete proposal about what it involves. Here it is.

This principle [of rectification] uses historical information about previous situations and injustices done in them … and information about the actual course of events that flowed from these injustices, until the present, and it yields a description … of holdings in the society. The principle of rectification presumably will make use of its best estimate of subjunctive information about what would have occurred … if the injustice had not taken place. If the actual description of holdings turns out not to be one of the descriptions yielded by the principle, then one of the descriptions yielded must be realized. (Nozick 1974, 152–53)

It’s called “counterfactual” because it asks to imagine that the world had been counter to the way it was in fact. Specifically, we’re supposed to imagine that the injustice of slavery had not happened.¹

Having a description of what a just world would have been like before the Atlantic slave trade began, we imagine the historical clock rolled forward until we get to our time. Then we compare this imagined just world with our own unjust world. This tells us how reparations should work: transfer resources (primarily money) until our actual unjust world resembles the imagined just world.

Waldron criticizes the counterfactual test.

Waldron’s arguments

Waldron notes a problem with the counterfactual test. We don’t know what decisions people would have made. We don’t know if some of our ancestors would have made incredibly bad financial decisions and others would have made very good ones. So we don’t know what the present value of an ex-slave’s estate would have been if the slave had been paid. Maybe it would be quite large, maybe it would be negligible.

Well, what if we imagined what would have happened if people had made economically rational choices? We could assume that the growth of a slave’s estate would roughly equal the growth of a non-slave’s estate. Would that give us enough information to apply the counterfactual test?

One thing to note is that this does not fit well with Nozick’s entitlement conception of justice. The whole idea behind the entitlement theory is that the only criterion for determining whether goods were rightfully transferred from one person to the next depends on what people freely choose to do with their property. What matters is what did happen, regardless of whether a pattern is met or not. But the counterfactual test asks what would have happened in different circumstances. Whether that is an interesting question or not, it doesn’t carry any moral weight in the entitlement theory. The fact that I would have paid for you to serenade me to sleep if I had appreciated how sweet and soothing your voice is does not mean that I actually owe you money for your singing services. If I agreed to pay you and you sang, then I owe you the money. If I did not agree, I don’t, whether you sang or not.

Waldron lists a number of other problems as well.

1. Everyone’s property is tainted, not just the estates of the slaves and slave owners.
2. Different people are alive now than the ones that would have been alive without slavery.
3. Why shouldn’t we do a similar sort of test for all estates? That is, ensure that everyone has, say, an average sized estate compared with others.
4. Why start with the imagined elimination of just one historical injustice? Why not imagine that none of them happened and compare the resulting imagined world with our own.

Why should Harry take a loss?

Here is another problem that was implicit in some of what was said in our discussions last time. I think it is worth spelling out.

Look at the second version of the bicycle story: Dick steals the bicycle from Tom and gives it to Harry. What you are supposed to say is “Harry has to give the bicycle to Tom even though he, Harry, did not do anything wrong.”

But what if we made the example just slightly more realistic? Imagine that Harry paid Dick $100 for the bicycle. If Harry has to give the bicycle to Tom, Harry loses $100. Why should he take that loss? He did not do anything wrong! Dick is the one who has to make Tom whole so he has to give Tom a replacement bicycle (or the cash equivalent). If Dick cannot be held responsible, why does the responsibility fall to Harry? Unlike Dick, he is innocent.

The second step of Boxill’s argument seems easier than it really is because Harry did not give up anything of value in exchange for the bicycle. So if he has to give it to Tom, he’s no worse off than he would have been.

In the case of reparations for slavery, the stolen wages of slave labor have entered the economy because innocent people have exchanged things for them. Reparations will not be as simple as just returning stolen goods. Someone who did nothing wrong is going to have to take a loss.

Maybe that is the right thing to do, but it is not clear to me that the bicycle argument proves that it is the right thing.

Main points

1. Nozick’s counterfactual test.
2. Why should Harry take the loss?