Abstract
On the basis of Waldron’s supersession thesis, this article discusses the historical injustice argument and contends that in order to evaluate moral claims for restitution of territorial titles it is important to consider the legitimate expectations of citizens that have been formed historically and have been sanctioned by the state through institutional mechanisms of stabilization of expectations. The legitimate expectations of citizens form normative demands that cannot be disregarded when rectifying historical injustices. In his arguments in favour of the supersession thesis, Waldron does not give sufficient attention to the concept of ‘legitimate expectation’, even though the thesis is reinforced by this reference. Unlike exclusively restitutive and rectificatory measures, this paper relies on present considerations of the consequences of past injustices, all within the framework of a theory of justice. In this sense, compensation deals with the past, but in a forward-looking way.
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Notes
These are common problems. For example, the Special Indigenous Jurisdiction in Colombia sanctions traditional punishments such as whipping (fuete), an inhuman and degrading treatment that violates what Amnesty International often considers to be basic human rights. However, the Constitutional Court has rejected indigenous claims for protection against these forms of punishment (judgement 523/97). Kymlicka (1995) famously tries to avoid these problems by distinguishing between self-government rights that function as ‘external protections’ and ‘internal restrictions’. But this is a false dichotomy that hides a trade-off, since most external protections imply internal restrictions (Loewe 2023).
This paper refers to claims to territorial rights as part of private law. The reference to powers of autonomy and self-government involves complications that I cannot deal with in this limited space. Schematically, theories of territorial rights can be grouped into three families. Theories that link self-determination and territory to processes of property acquisition (individual or collective) that then aggregate and consensually generate self-determination or sovereignty. These positions are associated with Locke’s theory (2000, §116, 117 and 120). (Steiner (1992) calls them ‘magic date’ theories because they rely on a moment in time when property and sovereignty are ‘magically’ fused, preventing subsequent dissociation.) Waldron’s supersession thesis is framed within these models. Although I assume them in this analysis, I find them implausible. I have discussed such theories elsewhere (Loewe 2022). The second family provides a basis of identity for self-determination and territorial rights. It can be a shared history, mutual sympathies, the transformation of a territory, common cultural elements, or a landscape, among other things. Nationalist claims are often based on these theories because they fit well with the ethno-cultural definition of groups. I discuss some of these theories elsewhere (Loewe 2023). A third family (with very different members) links sovereignty or self-determination to states as territorially anchored institutional structures. These theories are sometimes called ‘functionalist’, since self-determination is based on the fulfilment of certain tasks that are considered important, such as the maintenance of social peace and/or the guarantee of certain normative commitments (the protection of the rights of its members, etc.). Sometimes these theories are articulated under some interpretation of Kantian law (in Kantian law, property is an expression of the use of freedom, which in turn is the only original right of human beings). These theories have problems similar to those of the Kantian theory: from the duty of practical reason to enter into right relations with all of those with whom we can potentially interact, it does not follow that political units must be territorially mapped in any way, or that they must include particular classes of individuals (contrary to Kant’s interpretation, the coherence of his theory of right seems to require a strong cosmopolitan positioning—not just a right of hospitality). Lea Ypi (2013), drawing on interpretations of the Kantian cosmopolitan law, attempts to defuse the problems of establishing territorial rights: what is wrong with colonialism is that it is a kind of forced association, since the inhabitants are forced to join a political association that is unilaterally imposed on them and that denies its members equal and reciprocal terms of cooperation. This argument presupposes the prior existence of political associations. In this strategy, territorial rights are of secondary importance and are normatively derived from the right of individuals not to be unilaterally included in political associations. I am grateful to a reviewer for pointing out the need for this clarification.
Compare footnote number 2.
For example, de Vitoria (2021) and other representatives of the Salamanca school did not question the land titles of the Indians. The monarch could not claim as his own the territories where organized populations existed. The justification for the conquest was based on the ‘right of communication’, i.e. the right to establish trade relations and to spread the Gospel by entering and staying in the indigenous territory (a right of permanence that Kant denies in his interpretation of the right of communication, thus making colonization impossible; in his interpretation, it would only be the right to try to establish relations of communication without being treated as an enemy). But since the realization of this right could be met with violent resistance from the indigenous population, self-defence and the subjugation of the Indians could be resorted to if necessary.
The story of the pirates is similar to the one depicted by David Lyon (1977).
In the right of necessity, the injustice committed (for instance, taking away a fellow shipwrecked person’s log by which he is kept afloat, in order to use it yourself to save your own life) does not render ineffective the right of others to prevent their rights from being violated, at least under life-threatening conditions, and therefore the shipwrecked person can legitimately defend his log even by killing the threatening person. To have taken his life-wood from the castaway is still morally reprehensible; but as Kant clearly states in Metaphysik der Sitten, it would not be punishable (impunibile).
Waldron also refers to ‘expectations’ in his argument. However, there are some differences between his understanding and use of the concept and the one I propose in the next section. When referring to legal prescription, in addition to procedural pragmatic reasons (as time goes on, difficulties related to evidence and memory increase), Waldron advances as a reason in favour of prescription (in his words: ‘non-procedural pragmatic arguments’) the fact that people form structures of expectations around the resources under their control (Waldron 1992, p. 16): ‘If a person controls a resource for a long period of time, he and others may organise their lives and economic activities around the premise that the resource is ‘theirs’… Upsetting these expectations in the name of restitutive justice is bound to be costly and disruptive’. My normative conception of ‘expectations’ is different in that it presupposes the existence of an institutional framework in which expectations are expressed in the present (it is not enough, to use Waldron’s example, that my stolen car is discovered decades later to presuppose a change in the valence of expectations). Moreover, my conception requires that this institutional frame be fair in order for expectations to be legitimate. Not just any institutional framework makes expectations legitimate (e.g. the institutional framework of slave society does not). Perhaps my conception is broader in that it refers to the expectations of all social actors, and to expectations generated in social interaction and cooperation within an institutional framework, and not merely to the expectations of those who control the resource (whether this conception is broader or not depends on how one interprets the ‘and others’ in Waldron’s quote). Finally, his reference to ‘expectations’ occurs in his discussion of the statute of prescriptions on property and the doctrine of adverse possession. In my interpretation, the legitimate expectations that arise qualify the restitutionary obligation, but do not necessarily imply a ‘prescription’ of the original rights.
Of course, we can consider it in another way. For example, from a hedonistic conception of value based on sensory pleasures, it is possible to explain the value of life as the aggregation of pleasurable moments that are valuable in themselves and as such. Thus, the temporal structure—and its projective aspect—does not seem to be a condition of the value of life. Compare Feldman (2010).
Buchanan has argued that in this way, many expectations that are not unjust would cease to be legitimate if conditions changed in such a way that it became necessary to change the social institutions required to meet the demands imposed by the principles of justice. For comparison see Buchanan (1975).
Meyer and Truccone have argued (2022, pp. 3–6) that constraints are required to assess expectations as legitimate or not. On the one hand, an epistemic condition must be satisfied (either through behaviourist inductive mechanisms—on the basis of past behaviour we infer future behaviour—or through speech acts, i.e. statements); on the other hand, a justice condition must be fulfilled, whose constraints are ‘universality’, ‘consistency’, and ‘reasonableness’. The epistemic condition is necessary because without it expectations would be epistemically unjustified; the constraints of the justice condition are not, in my view. In its interpretation, ‘universality’ implies that the expectation which a subject forms is legitimate only if it is willing that other subjects in the same position may also form that expectation. But if this is so, then the legitimacy of an expectation depends on the particular moral disposition of the subject who forms it, so that many individuals may have the same expectation, but only some of them would be legitimate (because they accept the constraint of universality), while the others would not. This can be a way of assessing the moral disposition of subjects. So, for example, we can say, in a Kantian way, ‘your expectation is not legitimate because you are not willing to give yourself the same law that you demand of others’. But it is not an appropriate way of thinking about public policy. Arguably, any modern morality is universalist (there are no privileges associated with birth, and inequalities must be justified on the premise of the fundamental equality of human beings), as is a liberal political morality, according to which the burden of proof lies in justifying privileges. Thus, it is sufficient that the expectation conforms to institutional principles of justice written with a universalist grammar to be considered legitimate, regardless of the moral disposition of individual persons (Moore (2017, p. 232) argues that social practices or social conventions are sufficient to create legitimate expectations—in my understanding, this would only be the case within the just institutional system of a liberal democracy). With appropriate modifications, something similar can be said about the other two counter-arguments (‘consistency’ and ‘reasonableness’). Attempting to define public policy or public rules by distinguishing between legitimate and illegitimate expectations on the basis of people’s moral dispositions is a moralization of social life. I have argued that the more just the institutional structure of society, the more legitimate are the expectations formed within it, and I have defined institutional justice by reference to the normative content of liberal democracies. Thus the legitimacy of expectations does not depend on the moral dispositions of agents.
‘Total supersession’ would occur when all the reasons for an original right (prior to the injustice) lose moral weight with a change in circumstances, while a ‘partial supersession’ would occur when the moral weight of those reasons is weakened but is not entirely lost (Meyer and Waligore 2022).
An important question is whether legitimate expectations can be frustrated, provided that the expectation holders are compensated, at least in those cases where the frustration of legitimate expectations is necessary to achieve a just society. In a different argumentative context (on transitional processes to a low-carbon society), Meyer and Truccone (2022) have argued that this is the case. Their argument applies to cases of conflict where moving towards the goal of a low-carbon society has negative effects on the legitimacy expectations of different social groups, and they offer decision criteria and criteria for deciding which legitimacy expectations can be frustrated, so long as they are compensated in some way. In some cases, ‘means-replacing compensation’ should be chosen, for example, if allowing internal combustion engines in rural areas is incompatible with the goal of a low-carbon society (2022, p. 17). Note that these are ‘transitional processes’ and, given that we are moving from one state at T1 to another at T2, it is obvious that some legitimate expectations will be frustrated. Thus: ‘given the possible frustration of LE [legitimate expectation], the state must take this fact into account when designing (and revising) policies so that frustration can be avoided or at least minimised’ (2022, p. 8). This is self-evident. In any case, it is important to note that what is at stake is primarily the quality and justification of the new rule. If there are good reasons for it, then the frustration of expectations that results from it should be taken into account in order to make it less burdensome through measures, often through temporary exemptions, but it is not a question of questioning the quality of the new rule. If we apply this to the subject of this article, it would mean that when we move from a state in T1 where settlers have territories to one in T2 where indigenous people are being restituted, the first thing we have to ask ourselves is whether there are good reasons for this restitution (the new rule). Only if there are, should we ask ourselves how to do it so as to frustrate the least legitimate expectations, or frustrate the least important ones, or compensate for their frustration. But precisely what I have argued is that the reasons for a rule involving the restitution of territory are not convincing, at least not in all cases. According to my argument, there are good reasons to compensate the dismissed, who are in a bad situation today because of the dismissal, in a forward-looking way animated by principles of fairness. Waligore (2017) has argued that this favours settler expectations over indigenous expectations; it would create perverse incentives to convert unjust appropriations into legally legitimate titles by relying on settler expectations. I cannot address all of these issues here. For a discussion of these kinds of criticisms, see Moore (2017). I am grateful to one of the referees for pointing out to me that this needed to be clarified.
Interestingly, and in open opposition to his own critique of distributive justice, Nozick (1974, p. 133) argues that: ‘Perhaps the sorts of considerations about distributive justice and equality… play a legitimate role in this subsidiary choice’. But this is incomprehensible. If we take his critique of distributive justice seriously, what distributive justice would require when the counterfactual exercise produces different descriptions, and it is not possible to assign a higher probability to the realization of any of them, is to leave the choice of one of them to chance. After all, chance inevitably has a role to play in the resulting portions of the historical processes of acquisition and transfer. It is an illegitimate move to introduce considerations of distributive justice through the back door—albeit in a subsidiary way—as if through the historical processes of acquisition and transfer they have had a legitimate role in defining the resulting distributive shares.
I cannot deal here with the problems of counterfactuals, which sometimes require normative positions to determine which is the closest relevant world. There is also another problem, which is not related to the instability of property rights (as in the supersession thesis), but to the instability in the transmission of property rights. As Sher (1981) has argued, there is an indeterminacy in the counterfactual transmission of property over time that precludes the redress of injustice. The position of the descendants of a realized historical injustice is traced back to the original injustice (e.g. the usurpation of territory that impoverishes them) plus their own contribution to the current course of events. In the corrected counterfactual world, on the other hand, their position is traced back to the correction of the injustice plus the actions supposedly taken in that world. Since it is unreasonable to assume that anyone is responsible for actions taken in a counterfactual world, the responsibility of the descendants of historical injustice for their own position would be expressed as an opportunity to achieve the good that would have been had in the counterfactual world (but not as a right to that good). As time passes and generations follow, the weight of demands for reparations for historical injustice diminishes as the responsibility for contributing to one’s own position increases. Against these positions, Butt (2013) has argued that the discounting assumption is rendered ineffective by focusing on the wrongdoers who, in each successive generation, fail to rectify the historical injustice: each generation that fails in its duty to repair the damage or violates the inheritance rights of the successive generation whose claim has not been respected. In my view, and as Butt argues, it is true that the victim must be taken as he is (the classic doctrine, which he also cites, is the crystal skull doctrine). But it is also true that there is another principle of tort law: civil liability also follows from consideration of what the ‘reasonable’ person would have done, the reasonable man doctrine (Calabresi 1990). For example, if you are injured in an accident for which I am responsible, but you refuse to see a doctor and get worse or do not improve your health, or even die as a result, you have not acted as a reasonable person and I am not liable for all your damages. Similarly, if the descendants of the victims of historical injustice do not behave like a reasonable person and thereby make their situation worse or fail to improve it when they could have done so, then responsibility for the damage is reduced. Across generations, this seems to argue that the burden of reparations claims can be reduced.
Waldron (2022) defines compensation in a way that can be integrated into my understanding. When someone suffers an injustice, for example the usurpation of land, there is a right to restitution of the usurped land and a right to compensation for the damage caused by the usurpation. His supersession thesis applies to restitution (property rights are sensitive to circumstances), but not primarily to compensation. However, it does have implications for compensation over time: as circumstances change to weaken the original rights, the compensation due to each generation may diminish. Waldron suggests that compensation is aggregative across generations (though often decreasing). Thus, whether the original rights have lost strength, there would be an obligation to compensate. My understanding of compensation is that it includes the original rights adjusted for their moral weight in the present.
The point is more complicated, and I cannot address all of the complexities here. In a certain sense, what I am arguing is similar to the idea of Leif Wenar (2006). In the article, Wenar argues that forward-looking reasoning can refer to past events, but when this is the case, it is only to determine how to improve the future. For example, if the descendants of those wronged today were similarly situated to the descendants of those who committed the injustice (whether people of colour and white people enjoyed similar positions in the American society), there would be no (forward-looking) reason to take responsibility for the injustices of the past. In this view, forward-looking considerations are guided by the value of improving relations and building trust in society.
One of the most obvious legal expressions of the facticity of injustice and the continuity of life are the various types of prescriptions.
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This research has been developed within the framework of the FONDECYT Project: ‘Human mobility, freedom, and autonomy: Towards a normative proposal on immigration’ (1200370).
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Loewe, D. Compensation and Overcoming of Historical Injustice. Res Publica (2024). https://doi.org/10.1007/s11158-024-09654-2
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DOI: https://doi.org/10.1007/s11158-024-09654-2