Legal Theory 8 (2):243-267 (2002)

Authors
Stephen Kershnar
Fredonia State University
Abstract
Slavery harmed the slaves but not their descendants since slavery brought about their existence. The descendants gain the slaves’ claims via inheritance. However, collecting the inheritance-based claim runs into a number of difficulties. First, every descendant usually has no more than a portion of the slave’s claim because the claim is often divided over generations. Second, there are epistemic difficulties involving the ownership of the claim since it is unlikely that a descendant of a slave several generations removed would have retained the claim of inheritance given the loss of wealth and disinheritance that often characterizes families. There are also problems in determining the amount of inheritance. This is in part because of the problems of calculating in the effects of offsets, especially crime-related offsets, which are owed by a significant portion of the descendants. Even if this inheritance claim can be established with sufficient confidence certain entities may not be asked to pay it. The federal government does not owe compensation since as a historical matter it permitted but did not cause enslavement. The beneficiaries of slavery do not owe compensation since merely receiving the benefit of an unjust activity does not by itself generate a debt of compensation. When combined these problems constitute an overwhelming case against reparations.
Keywords Reparations  Affirmative Action  Slavery  Jim Crow Laws  Non-Identity Problem
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DOI 10.1017/S1352325202082046
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Black Reparations.Bernard Boxill - forthcoming - Stanford Encyclopedia of Philosophy.
Uncertain Justice: History and Reparations.Stephen Winter - 2006 - Journal of Social Philosophy 37 (3):342–359.
The Counterfactual Conception of Compensation.Rodney C. Roberts - 2006 - Metaphilosophy 37 (3-4):414–428.
On the Possibilities of Group Injury.Stephen Winter - 2006 - Metaphilosophy 37 (3-4):393–413.

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