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 went back to Nozick for an answer that we called the counterfactual test.

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.

Having a description of what a just world would have been like back in historical time, 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.

Which injustice?

We started off with a problem that James had noted last time. Which injustice are we imagining didn’t happen?

1. The capture and transportation of people from one place to another.
2. Their uncompensated forced labor.

The implications of making our world resemble a world in which slavery never happened are monstrous. That would involved forced deportations.

Boxill just ignores the first and focuses on the second. But I think James was right in saying that looks arbitrary and narrow. Why doesn’t the first injustice call for reparations too?

What if we partly abandon the counterfactual test? Give people some amount of money to compensate for the first injustice and then use the counterfactual test for the second injustice.

I can’t say that I love this. It feels just about as arbitrary as the attempt to ignore the first injustice. When do we use the counterfactual test and when do we ignore it? Maybe we could leave it at the discretion of the recipients: the descendants of slaves.

James noted that we’re inclined to use the counterfactual test only when doing so helps the recipients. That seems right to me. Maybe that means we aren’t fully committed to it.

I think Alex was on the right track in suggesting that this might be because we are looking at the wrongdoer. Reparations are supposed to accomplish two different things. They are supposed to repair the injustice done to the party that suffered it and to extinguish the debt owed by the other party. Suppose that you can’t extinguish a debt by harming the person to whom it is owed. Then we might have a reason for saying that rectification can’t harm its recipients.

Waldron’s arguments

There is 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.

Our discussion

Sarah thought that group responsibility could address many of these problems. For example, the fact that different people would be alive does not matter if the two groups, black and white, would be the same either way.

While the bicycle example does not clearly support group responsibility, Sarah thought that was OK. She did not find the bicycle example compelling to start with.

Gigi noted that any reparations scheme is going to be imperfect. When we are talking about transferring money among two large populations, there are limits to how precise we can be. And even if we could be very precise, we can’t know exactly who owes what given the passage of time.

But Gigi was OK with that. She reminded us that there can be an important symbolic function of reparations as a way of acknowledging that a great injustice was done. Reparations can serve this function even if they are not precisely targeted to the heirs of the original victims.

Skye noted that reparations for slavery would just be the beginning. There are a lot of instances of historic justice that would have be to put right.

Main points

1. Nozick’s counterfactual test.
2. The problem of multiple injustices.
3. How Waldron’s observation that people might have made bad financial choices is relevant to the counterfactual test.