Affirmative Action VII: Sidebar on Reparations

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I haven't done anything further in my series on affirmative action in a while (see the introductory post to links to the rest of the series), but I hope to be putting together a few more entries in the next week or so because I'm about to cover the issue in my classes again. I've just done some more reading on the reparations issue, which I first covered in Part V of this series. There are actually two separate and unrelated arguments for reparations, and I now think the issue is much more complicated than I did before, so I wanted to say some things about that.

The main argument I'm considering come from Bernard Boxill's paper "A Lockean Argument for Black Reparations" in The Journal of Ethics 7 (2003):63-91. If you have universty or other access to the internet, you can find this at the Kluwer site for online papers, but you'll probably need to access it through you're library's website. The main objections I'm considering are all available online without academica access of need for registration. Thomas Sowell: Reparations for Slavery?, The Reparation Fraud, and The Reparations Fraud: II and then John McWhorter, The Reparations Racket. McWhorter later develops this argument in a chapter of his Authentically Black, but the key points are in this piece.

Boxill gives two arguments for reparations. He calls the first The Inheritance Argument and the second The Counterfactual Argument. I'll summarize each one and then look at the objections and his responses to them.

The Inheritance Argument starts from a small set of assumptions, all of which he finds support for in John Locke, the indirect author of the American jurisprudential system, through Thomas Jefferson. First, someone who harms another through wrongful actions owes the person reparation or compensation. Boxill distinguishes these two, but I'm not going to worry too much about that at this point. Second, a debt is owed from one estate to another, and when the owner of an estate dies, that estate changes hands. If there is enough money left in that estate to pay the debt, then the money inheritated less the money owed is all the heir legally should inherit, so the debt transfers.

I think that's all you need now to get the argument going. Slaves were clearly harmed by wrongful actions, and those who inherited the estates of those who committed those acts, if the estates still contain enough to pay the debt, owe that money. The only question will be who owes it and to whom, which are tricky issues. We'll deal with those in due course, but I want to point out that this argument does not assume any harm to present-day descendants of slaves. It also doesn't assume that slaveowners benefited from slavery, just that their estates had enough money to be able to transfer the debt along with the rest of the estate when they died.

The second argument is the Counterfactual Argument. For those not familiar with contemporary philosophical usage of the term 'counterfactual', it is basically a statement of the form 'If X were the case, then Y would be the case", where X is not the case but could have been so if things had gone differently. The counterfactual in this case will be: "If there hadn't been wrongs committed in slavery, then present-day African Americans would be better off." Therefore, the first premise of the Inheritance Argument kicks in. The wrongful practice harms today's African Americans. I'll point out now that the one assumption the previous argument did not make is crucial for this argument, but the second premise of the first argument plays no role here. There's no assumption of descent. An African American whose ancestors were never enslaved, if harmed by the legacy of slavery, would therefore be considered to be legally harmed and due compensation by this argument. So if both arguments succeed, then someone who is either a descendant of slaves or has been harmed by the legacy of slavery would be in the running for reparations, even if only one of those is true of the person.

Now let's look at the objections. A far as I can tell, Boxill deals with almost every point made by Sowell, and people may differ on whether he deals with them satisfactorily. He doesn't address McWhorter's concern at all, but one of the things that will undermine his point a good deal is one of McWhorter's other views, one I agree with.

Sowell first says that reparations will not be paid, and therefore the motivation for calling for reparations is mere victimology, taking delight in what's barely victimhood for the sake of alienation from the maintream and one-upmanship but not for any positive change. I think the victimology tendency is very harmful and indeed a form of black anti-black racism when it does occur (not that it's merely a black thing; I give three non-racial kinds of victimology in the post I just linked, one being Christian victimologists). I don't think Bernard Boxill is a victimologist. He's a very good philosophers who has read Locke carefully and concluded that Locke's principles of political philosophy require reparations based on slavery. Maybe Al Sharpton's call for reparations at the Democratic National Committee was victimology. I don't know his motivations, though he gives reason to be suspicious. He does benefit greatly from thi kind of grandstanding, both financially (from poor black people giving to their rich "Reverend" thinking he'll come through for them) and politically (e.g. winning a speaking spot at the DNC despite being a failure of a presidential candidate simply because a lot of people want what he wants said being said at such things to keep the black voters lined up for Democrats). Whether it's true of him or not, I don't think it's true of genuine philosophers thinking about political principles for the sake of a more just society. Maybe Sowell wasn't thinking of people like Boxill when he said this, but I'm considering Boxill and not Sharpton, and Sowell's comment doesn't seem to me to apply.

Sowell points out that not every white person today is descended from a slaveowner, and not every black person is descended from a slave. This doesn't touch the counterfactual argument, but it might threaten the inheritance argument. Boxill's response is to move to the generational level. Boxill points out that Lockean grounds for consent are simply being aware of something and not protesting. That's why Locke sees everyone in society as consenting to be governed by the current government. Those who do not oppose or question a policy they know about are tacitly consenting. So only abolitionists did not consent. I suspect it would be hard to find someone today who does not have any ancestors who were not abolitionists. Recent immigrants and those descended from exclusively immigrants who came here after slavery was ended (who didn't also have ancestors involved with the slave trade to America) might get out of the inheritance argument, but the counterfactual argument still might include many of those. That issue comes up pretty clearly in the next objection, so I'll look at that now and in the process return to this question.

Sowell says an apology doesn't make sense when the person who did the wrongdoing is dead. It's not as if anyone around today did the wrongdoing. This brings us back to the issue of who owes the reparations and on which of the two grounds. The inheritance argument doesn't assume any harm to current descendants of slaves, so it doesn't assume an apology is warranted, just payment of the debt. The apology idea must come out of the counterfactual argument, then. Well, as it turns out, Boxill has an argument for something that would also justify an apology. It's not that someone today can apologize for slavery, but the argument assumes continued harm to black people today because of slavery. In explaining why he thinks there is such present harm, Boxill also explains why an apology might be necessary, though he doesn't address that issue directly.

Why would we think there's current harm? Well, it's obvious that whatever harm done to slaves has not been removed. There's still injustice in terms of proportionality. Black people are proportionally more poor than whites. A greater number of blacks are poor compared to their percentage in society than is true of whites. Other injustices occur, but only one is really needed to show that there's harm. The question Boxill needs to answer is whether each continuing generation of whites is responsible for that harm or whether black people themselves have held themselves back. Boxill's answer is that each succeeding generation of whites has engaged in behavior and at least tacitly consented to policies (through not explicitly protesting them) that have led to a slower recovery than would otherwise be the case. He says that the only way to conclude otherwise would be to show that black people themselves are entirely responsible for every element of their lack of recovery.

This is where I think John McWhorter has some interesting things to say. See my Victimology, Separatism, and Anti-Intellectualism posts (all linked to from here) for my summary of the three self-destructive practices McWhorter finds in African American culture today. I think McWhorter is right that these attitudes have slowed recovery. At the same time, though, it seems to me that genuinely white attitudes and practices have harmed black people, some of them purely unintentional and out of ignorace, but they still have prevented full recovery from all the effects of slavery. See my Normative Whiteness, White Voyeurism, and Racial Narratives posts, all linked to from the same entry I just linked above. The other issue is that McWhorter himself insists (and Sowell agrees) that white liberals' policies have contributed toward slowing down black economic recovery from the legacy of slavery. This would include current effects of affirmative action (though McWhorter, unlike Sowell I presume, thinks it was a good thing initially to help overcome vast disparity, though he now agrees with Sowell that it should be removed). It would also include the expansion of welfare in the 1960s to take self-sufficient and economically recovery blacks and put them into a system of dependency on the government from which it's now hard to break out, even with the Republican-initiated welfare reform of the mid-late 1990s (which, by the way, John Kerry supported, or so he says -- I haven't checked on that) that now requires proof of some initiative and responsibility before gaining welfare benefits. That means conservatives on such issues should agree with Boxill that the generation responsible for that is responsible for preventing recovery from slavery. Sowell will claim that many objected, which complicates matters, because these policies were controversial, but the fact is that many who objected were still doing the other things I mentioned above. That's why I think Boxill is correct in his claim that the current generation of whites is partly responsible for some of the harm of the legacy of slavery that still besets black Americans, even ones who were not descended from slaves. It's a lot harder to get out of this objection than Sowell thinks.

One objection Sowell gives does trouble me. He says that we can't hold people responsible for everything their ancestors did. One problem is that we can't keep track of things that well, and how far back do we go? Another is that some people may have been more responsible and others less. Should we calculate those differences or distribute it equally? The first is unmanageable, and the second seems unjust. Also, some white people have so little resources that they shouldn't be expected to have inherited enough of an estate to pay the reparations. In that case, they should be excused from the debt, according to Boxill's argument.

The counterfactual argument actually requires collective responsibility, because the present generation of African Americans would not exist if it weren't for slavery, so we can't calculate the harm to them based on slavery. If their lives are of positive value, then they personally have benefited from slavery because they owe their existence to it. I think Sowell too dismissive of collective responsibility, though. We Americans are so highly individualistic that we seem to think there's no reason to expect someone to help someone else in dire need when we're walking by. Other countries have what we call Good Samaritan laws. That means they hold someone liable for not at least calling for help from the proper authorities when witnessing a crime or emergency. This assumes something the radical individualism of American thought despises. It assumes we have obligations to those around us. We're the worse for it.

What's worse is that we adopt collective mentalities when it suits us. We identify with our own groupings when we want to and consider ourselves separate individuals when a collective mentality is inconvenient. After 9-11, American solidarity was the thing to emphasize. We're Americans, and anyone who opposes us deserves our wrath. It doesn't matter that we personally might not have been harmed by the attacks. They attacked us. That's collective thinking about moral categories. Then when it comes to reparations, we can't do that. It's not exactly a consistent moral framework. It doesn't help that so many Americans consider themselves Christians and forget (or don't know because of biblical illiteracy) that the Bible has a much stronger notion of communal responsibility than reparations arguments could require. Every single human being is morally responsible for the state of sin that we find ourselves in. Isaiah, Jeremiah, Daniel, and Ezra all considered themselves sharing in the shame and guilt of the sin of their people. Consider the prayers of Daniel and Ezra in chapter 9 of each of the books named after them. Christians should have nothing of the absolute individualism proposed by Sowell. It turns out that this whole cluster of objections goes away if you allow for group responsibility, but on the other hand it removes any sense of reparations distributed to individuals, I think rightly. That just couldn't be done in a just way, even if in principle justice might seem to require it. So reparations, if they are to occur, must be done on a more large-scale level. No individual should be receiving monetary reparations in the form of checks (as some liberals arguing for this propose) or tax breaks (as Alan Keyes has suggested).

What form could the reparation take, then? John McWhorter has a suggestion. It should be government policies to try to even the scales between blacks and whites in society. Then McWhorter emphasizes that this has already largely been done by white liberals from the 1960s on. I discussed this a bit in my earlier reparations post that was focusing on the affirmative action issue more specifically. Affirmative action and the expansion of welfare were intended to be exactly that. The problem with this suggestion is that McWhorter, rightly in my view, thinks these policies have created more harm than good. They thus can't count as reparations. Liberals perhaps should find them to be a step toward recovery, perhaps with more to follow, but conservatives who see these as harmful policies can't say what McWhorter says and leave it at that. Well, McWhorter doesn't, as it turns out. He thinks we should still have policies that give incentive to reponsibility, that encourage recovery without creating dependencies, that encourage private and perhaps even religious groups to help black people get on their feet or care for them if they really can't work. I agree. I think that's the form reparations should take, and I think it changes nothing of how I already thought our political policies should look like. So I acknowledge that Boxill has actually given what seem to me to be two very good arguments for reparations that don't lead to any change in my views on what should be done. The results will be the same for the specific issue of affirmative action, so I don't want to modify my conclusions of the post I already wrote when I dealt with that. I just realized I needed a more careful argument for them, and I hope this is careful enough.

Update [3:35 pm]: As I was teaching this stuff today, I realized three additional things that are probably worth mentioning. First, it's not too much of a stretch to say that women during the time of slavery were not quite in a position to consent to slavery, tacitly or otherwise. It's not as if the really had a voice. That means half the population wasn't responsible in the way that the rest were. That seems ok, but you have to remember that women can't have children without men, and everyone descended from women of that time is also descended from men of that time. I don't see how this issue changes much.

Second, I have to acknowledge that the harms of slavery included harms to whites. It's stupid to think the harms to whites were anything like the harms to the slaves themselves, but I think it's important to keep in mind that by harming slaves the way they did the perpetuators of the slave trade and the practice of slavery were also harming whites in robbing them of the kinds of relationships they could have had with these people and in robbing them of the benefits to society that would have taken place had they not been slaves. The same goes for current conditions. Any policy that harms black people, either by perpetuating something caused by slavery or simply not allowing full recovery from the harms of slavery, harms white people as well, in the same ways I just explained, just not to the same degree as with slavery (and both not to anything like the kind or degree of harm to slaves and their descendants). What does this mean? Does it mean we need reparations to white people too? Given that we're talking on the collective level, and given that the group owing and the group owed are basically the same group, that's a little strange. The answer has got to be no. It's different with the many cases of black people descended from both slaveowners and slaves, because there's less harm in the case of white people decended both from those who have harmed and those who have been harmed than with black people who are descended both from those who have harmed and those who have been harmed. So I don't think this issue changes anything either.

One worry that occurred to me as I was moving through the counterfactual argument in class is that some of the harms I elucidated in the post may not be as wrongful as slavery, and the premise was that wrongful behavior that harms requires reparations. The expansion of welfare in the 1960s and the existence of affirmative action policies when they're no longer necessary for the purpose of just getting any representation at all are harms, according to McWhorter and Sowell, but it's not clear that they're wrongful. They were intended to help. Now there's always the question of whether the people instituting them should have known better. Maybe it was just negligence. McWhorter seems to me to want to excuse them but to blame those who came after them who should have seen their harmful effect but were unwilling to change them due to not wanting to offend those receiving those services. That kind of moral spinelessness really is a moral wrong, so perhaps those things could get back in, just not from the outset. It's the later generation that opposed removing them that's responsible. The same worry also shows up with the unconscious harms and barriers to progress from racial narratives, normative whiteness, etc. If it's not intentional, how can someone be blamed to the point of owing reparations? The reparations argumeny requires showing moral blame, and people will disagree on whether blame can be assigned for such unconscious residual racism. I tend to think you can assign some blame, but I think I'm in the minority on that. This is a real debate among philosophers working on the problem of moral luck, which I don't really want to get into here.

I'm not sure if this is a devastating problem, since there are a number of ways that harm is caused that people tacitly consent to that you can blame them for, for instance making decisions on what kinds of products to market and where based purely on economic grounds. That kind of thing can harm black people if it means fewer black dolls or something. This isn't a great harm, but it can add up. People do defend such decisions on mere economic grounds, and it can harm, so the argument has all it needs there. There are lots of cases like that. Also, if the issue is just simply whites in power not doing what they can to right the scales then there does seem to be knowledge that that's not happening enough. So I think it's very hard to get away from the argument just by saying that many of the harms are not intended.

Update 2 [11/11 10:26 am]: I was reading an interview with Boxill in this book, and he presents an interesting dilemma. I'm wondering if it's a false dilemma, but I can't make it explicit how it is if it is. Locke wasn't consistent in his individualism, but Jefferson was. Jefferson insisted that every 19 years we're in a new generation, and we should forget about the debts and obligation coming from the previous generation. In some ways this is reminiscent of the Year of Jubilee in the Hebrew Torah, which sets slaves free and forgives debts every 70 years. Jefferson just speeds it up. Boxill says most white people don't want to take this to its logical end by redistributing wealth every 19 years, because property inheritance and debt inheritance should follow the same set of principles. Yet the alternative is what Locke himself says, that debt gets inherited in exactly the way the Inheritance Argument above requires it to transfer. I guess what I'm wondering is whether these two things really do need to go together. Do you have to believe debt should transfer if property does? What plausible principle allows you to separate them? I can't think of any.

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I have not followed this issue very closely (I just stopped in via Carnival of the Vanities), but one point I have not seen discussed is the fact that had slavery never existed, the decendents of those who would have been slaves in America would, for the most part, still be living in Africa. Those who were made slaves suffered dearly, and the decendents of slaves were clearly disadvantaged relative to free immigrants. But compared to the physical and economic well-being of a typical sub-Saharan African, isn't a modern US African-American far better off for their ancestor having been a slave?

Yes, that's the most common objection to the Counterfactual Argument, and Boxill discusses it. You have to keep in mind that the argument he's giving doesn't depend on individual well-being. It's corporate responsibility and corporate harm that's at issue, because it's corporate well-being that would be the goal of any reparations that anyone could feasibly do in a remotely just way. There's no way to do the individual thing, especially in monetary terms.

So what matters for the counterfactual is not that any individual descendant of a slave alive today would have been alive if there hadn't been slavery. What matters is that the actual descendants of slaves have, as a group, been harmed because of slavery, even if their existence also depends on slavery. That seems plausible to me, but let me say a little more in defense of in, because I suspect it wouldn't be plausible immediately to everyone.

Their existence depends on slavery. Yet it's not slavery that's being offered in support of the harm now. It's the legacy of slavery that's harmed African-Americans, and the harm is not that it's brought their standard of living down or anything like that. It's that they haven't fully recovered as a group from the low standard of living caused by slavery. So if the wake of slavery had gone differently, and if those who could have sped up the recovery had acted differently, and if those who are still resisting the recovery in whatever way that is taking place had been more insistent on not doing so, then the descendants of slaves would be better off. So they've been harmed by it. That's why Boxill doesn't think it matters that the particular people who would be receiving these reparations wouldn't have existed if there hadn't been slavery. The simple form of the counterfactual that the objection assumes isn't the relevant counterfactual to the argument Boxill is making.

I read your piece with some interest and aside from the doctrine of infinite liability (and let's be honest that is the end result of any sort of reparations) how do you identify who should receive funds?

My family has Louisiana ancestry that goes back to the 18th century. The there is almost certainly significant amounts of African blood in my makeup through the Indian side of my family even though I look as Caucasian as any Englishman. If there are reparations to be paid I feel that I should garner a share as well based on my ancestry.

Furthermore, there are many many African Americans that have more than a little European blood should they get less? I think so, after all they have the same genetic material that makes all whites in the US culpable for acts that occured almost 150 years ago. It seems that it would be only fair that they should share the liability as well as the reparations.

Oh, no, it's entirely dishonest to attribute infinite liability to reparations advocates. After all, the assumption of the inheritance argument is that enough of the estate must remain, and the Roman persecution of early Christians didn't leave anything we could consider part of the same inheritance. The counterfactual argument assumes there's a current group continuing (or preventing recovery from) the same harm, and you don't get that sort of thing there either.

I thought I made it clear that this isn't about receiving individual funds. There's no just way to do anything remotely like that. It's not about who has more of what genetic material on an individual level. It's about group responsibility for group harm, both current harm (and prevention of recovery from harm) and group responsibility for having benefited from the estates of those who caused harm in the past but didn't make reparations. In either case, the arguments you give are irrelevant, as I made clear in the post when I gave exactly those arguments for the sake of refining the view to something much more doable.

Thanks for your response. I would just clarify that my point was not that today's decendents of slaves would not exist had there been no slavery. I was considering the nearly opposite case, supposing that there had been no slavery, but the chain of ancestors was maintained to produce the same individual. That individual would likely be living in Africa, and have a standard of living well below that of a decendent of slaves now living in the US, despite the obvious post-slavery discrimination. I don't mean to suggest that that this would in any way make up for the horrors suffered by the actual slaves. It just seems to complicate the claim to compensatory damages. Again, I apologise if this also is well-covered ground for those following this debate.

I guess it depends on what you take the relevant counterfactual claim to be. I don't think the argument is intended to be dealing with individuals at all, so the scenario you're proposing isn't the one to consider (which would require lots of white people and others moving to Africa anyway). I also don't think it's about what would happen had there never been slavery altogether. I think it's about what would have happened if the ancestor of current African Americans had been brought to this country as free people. What would then be true of the current generation of African Americans (who wouldn't be the same people we've now got)?

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