Rectifying Past Injustices Flashcards
What are Civil wrongs, Civil liabilities, Past injustices, and what do post-conflict nations consider rectification to be?
Civil wrongs – violation of another of person and/or their property
-Past injustices constitute wrongdoings towards neighbours, community members, fellow citizens (not the state)
–They thus lead lead to a breakdown in civil relations
-Civil liabilities – who should pay damages/take steps to amend?(not whom should the state punish)
-Many post-conflict nations consider rectification as a constitutional imperative or an Act of legislation
–Ie, Constitution makes provisions for rectifying past injustices and enactment of Promotion of National Unity and Reconciliation Act
Historical injustice, culpability and compensation
What is the principle of compensation
What does it mean?
Who is it applicable to?
Examples?
Restate the principle and aims
The principle of compensation
Judith Thompson
Where one party has wronged another, there is a reasonable expectation that the offending party takes steps to compensate for the wrong done
Applicable to interpersonal relations and groups
Apartheid and patriarchy – Injustice of oppression faced by women under patriarchal structures and black people facing grave injustice and lack of basic liberties suggests that blacks and women are owed a debt of compensation
Ayanda stole Minnie’s bicycle and the loss of the bicycle has impacted significantly in some determinate way on Minnie - led to an unhappy teenage life
Reasonable for society to expect Minnie to demand an apology from Ayanda by offering an apology or returning financial equivalent, or even a bicycle
Reasonable expectation
Judith Thompson aims to capture the that where one party has wronged another, there is a reasonable expectation that the offending party take steps to compensate for the wrong done.
Roughly, then, the principle is that, ‘if person A has wronged person B, then person A ought to compensate person B for that wrong’
The rightful beneficiary of compensation?
What does a valid claim entail?
What are the 2 specific claims?
Erroneous to suppose that?
What is an error and why?
List negative consequences
A valid claim for compensation involves, in part, clarity regarding who should receive compensation
Based on compensation principle many black men and women should be compensated yet unclear all black people and all women are entitled
What about young black people and women such as born-frees who are also rightful beneficiares?
Thomson distinguishes between two specific claims
That the situations of black people and women have significantly improved relative to what it was in the past
That the current generation of young black people and women have not been wronged at all.
Says it is erroneous to suppose that:
significant improvements in the conditions of black people and women entails that
b) young black people and women have not been wronged at all in ways that have caused harm.
It is an error to believe improvements in unjust conditions guarantees the complete elimination of the injustice
Misleading because changes are recent and consequences are still far-reaching
Reason?
1) Historical injustices were directed at black people and women as a group, each group member is a victim in virtue of group membership
2) historical injustices are self perpertuating, they were done in the past yet still yield further disadvantages for members of these groups ie black tax, equal pay, education
Thompson lists negative consequences as:
Self doubt
Lack of confidence
Lack of self-respect
Passed on to younger members of historically oppressed groups. As such, they are also wronged in ways that have made them worse off.
Corporate and personal liability
Who should compensate?
Should the white man compensate?
Corporate and personal liability
Who is liable to compensate? Not clear cut
If black people and women, including the current generation, are entitled to compensation, it would seem that the duty to compensate falls on white men, since they are neither black nor women.
Should all white men compensate?
First point: The duty to compensate does not fall to the young white male; he is neither asked to give up a job he already has nor is he stripped of one
The comunity as a whole owes compensation to black people and women, and the hiring officer acts on behalf of society when preferring them in hiring decisions.
Thomson believes historical injustices towards black people and women, in corporate, rather than individual, terms (not isolated but widespead)
Ie, apartheid was ‘the corporate acts of a nation that imposed or tolerated … apartheid … and disenfranchisement’
Therefore,a group might be liable for compensation even though its members are not personally liable
Corporate liability does not entail the young white male is personally liable
Yet, the community’s corporate liability to compensate imposes some burden on the young white male as discharging that duty entails that his right to equal consideration is set aside
Why? although he may not have personally wronged black people and women, the young white male has benefitted from previous wrong
He also got the confidence, elevated self-worth he enjoys and gives him the edge in the competition to access public goods
since compensating someone other than the wronged party would be unjust
Historical injustices are the collective acts of the community – thus its members may be liable even though individuals did nothing wrong
Example of criminal heist
one did not plan, implement or directly participate in a heist, one may still be personally liable to the extent that one benefits from the proceeds of the heist
Similarily the young white male has benefitted from historical injustice, it is false that he should not bear any burdens for previous wrongs done by others to black people and women
He ought to bear some of the costs of compensation to black people and women.
Procedures and best means
Other means for compensation?
Reasons why preferential hiring is most appropriate?
Procedures and best means
Other means of compensation black people and women?
Financial compensation?
Might entail imposing an appropriate tax or levy on the relevant parties, and distributing the proceeds accordingly, would not involve setting aside his right to equal consideration in competing for educational and employment opportunities
2 reasons why preferential hiring is most appropriate to compensate black people and women
Both linked to idea that historical injustice robbed black people and women of their self-respect.
Self-respect - a sense of esteem for oneself based on a recognition that one is a bearer of all the rights and privileges that comes with the recognition that one is a full member of a community.
Deprivation of these fundamental rights and privileges means they were denied self-respect
Reasons:
Because financial compensation is unlikely to restore the self-respect of black people and women, it is not the best form of compensation
Being in possession of a job and doing it well is more likely to restore self-respect for black people and women, and so preference in employment decisions is the best means to compensate them
Link between self-respect and doing a job well:
having a job is necessary to obtain a wage which is further necessary to acquire the basic necessities of life. Being able to do this for oneself gives one a sense of independence, which, at least a significant degree of it, is vital to self-respect in many cultures.
It seems that being able to do a job well might provide one with a sense of fulfilment and meaning, which, again, is an important element in improving one’s self-respect
Procedure and best means for compensation
What about financial compensation?
Link between financial compensation and self-respect?
Procedures and best means
● Other means of compensation black people and women?
● Financial compensation?
● Might entail imposing an appropriate tax or levy on the relevant parties, and
distributing the proceeds accordingly, would not involve setting aside his right to
equal consideration in competing for educational and employment opportunities
● 2 reasons why preferential hiring is most appropriate to compensate black
people and women
○ Both linked to idea that historical injustice robbed black people and women of
their self-respect.
○ Self-respect - a sense of esteem for oneself based on a recognition that one
is a bearer of all the rights and privileges that comes with the recognition that
one is a full member of a community.
○ Deprivation of these fundamental rights and privileges means they were
denied self-respect
Reasons:
1. Because financial compensation is unlikely to restore the self-respect of black people
and women, it is not the best form of compensation
2. Being in possession of a job and doing it well is more likely to restore self-respect for
black people and women, and so preference in employment decisions is the best
means to compensate them
● Link between self-respect and doing a job well:
○ having a job is necessary to obtain a wage which is further necessary to
acquire the basic necessities of life. Being able to do this for oneself gives
one a sense of independence, which, at least a significant degree of it, is vital
to self-respect in many cultures.
○ It seems that being able to do a job well might provide one with a sense of
fulfilment and meaning, which, again, is an important element in improving
one’s self-respect
Benefits, culpability and the morality of best means
Benefits, culpability and the morality of best means
Defense of preferential hiring of black people and women rests on 4 basic premises:
1. Black people and women, each as a group, have been wronged and so ought to be
compensated.
2. The community as a whole ought to compensate black people and women.
3. In order to compensate, the community justifiably overrides the right of the young
white male to equal opportunity, since he has benefitted from previous wrong.
4. The best means of compensating black people and women involves infringing the
right of the white male to equal consideration
● 3 and 4 are controversial
● Reason 3: Thomson seems to be incorrectly applying the principle of compensation,
which requires that the offending party, and not the (involuntary) beneficiary, should
compensate
● Reason 4: The best means of compensation is not the morally right one
● Stealing rifle example: Black people and women are not entitled nor preferential
hiring justifiable (paying in stolen coin)
● In other words, even if preferring black people 10 and women in employment may be
the best means to compensate, it may not be the morally right means especially as it
appears to rob the white male of a basic right
Rectification and Social Utility
Rectification and social utility
● Vincent Maphai – consequentialist argument for AA (Afirmative Action)
● The primary aim of affirmative action and preferential hiring policies is ‘black
advancement’, which, in turn, will yield overall positive consequences for society as a
whole.
● Greater representation and integration of black people in key institutions, will prevent
the undermining, that is, weakening and decline, of these institutions
● Will strengthen institutions and prevent the collapse of the economy
● Blacks and women will not feel alienated from it but feel part of it , have a stake in,
the survival and efficiency of key public institutions.
● Alienation will weaken institutions and lead to widespread protests and a sheer lack
of public support by excluded black people and women are likely to diminish the
efficiency of key institutions, which may significantly harm the economy
● Enumerated benefits are ultimately in the overall interest of everyone in society
● Affirmative action and preferential hiring will increase the pool of “Respectable and
useful role models” for younger black people and women, and thus contribute to
black advancement
○ May lead reduce inequalities and contribute towards non-racial SA
● Ultimately in the interest of everyone
● Forward looking – although it takes the past in consideration, does not depend on
considerations of what black people and women deserve or have a right to or what
specifically they were robbed of in the past
○ Positive future consequences they are likely to yield for everyone
● Advantages of consequentialist approach: Does not rest on disadvantages for white
men (Criticism’s of Thomson who is backward-looking as she focuses on whether
preferential treatment can adequately compensate for some past injustice, rather
than its future consequences )
● Backward looking approach: likely to justify disadvantages to some in order to
adequately compensate for past wrongs
Justification, effectiveness and reverse discrimination
Justification, effectiveness and reverse discrimination
● What are the problems with consequentialist arguments?
● If some policy of rectification is justified because of its likely future benefits then it
would seem to lack justification if it fails to realise those benefits
● Ie, AA and preferential hiring led to manipulative tactics instead of black
advancement
○ Fronting and tokenism
● Involves the appointing and/or promoting of unqualified and inexperienced persons
from historically deprived groups to senior positions in management with the intention
of being seen as compliant with those policies, while concealing the fact that they are
merely window dressing.
● What if those consequences do not occur?
● These policies fail to realise the envisaged wider benefits and so lack justification
Maphai’s response:
● Some policy might be justified even if it turns out to be ineffective. In other words,
there is a distinction between justification and effectiveness
● Effectiveness - largely empirical, depending in part on whether the policies have
been implemented well or what the intentions of those who seek to implement them
are
● Justification - theoretical, involving specifying the conditions if when satisfied makes
the practice justified.
● Maphai implies that they may be justified notwithstanding the practical problems of
implementation
● Maphai also considers the possibility that affirmative action and preferential policies
are comparable with apartheid policies
● That both set of policies make ‘race’ rather than ‘technical’ qualification, the basis for
deciding who ought to be employed and involve a morally objectionable form of
discrimination.
● AA and preferential hiring differ in their intent
● Not based on superiority of one race but are based on a recognition that ‘at this stage
having a black or female would be more helpful’ future wider benefits to society
Social utility and individual rights
Social utility and individual rights
● Maphai:
○ AA “need not involve correlative disadvantages for whites or any previously
advantaged group ” Wrong but why?
○ Consequentialist justifications are typically troubled by hard cases in which
realising the anticipated future benefits might involve significant costs to some
○ Consideration of wider benefits may lead to torture of 50 inmates to get
information to deactivate a time bomb
○ Damages 49 inmates
○ If the goal is black advancement, these policies not likely to advance the
young white male and might involve overriding his right to equal consideration
○ His explanation: Denies that there are any rights at stake at all
○ no right to AA as you cannot demand discrimination in your favour (our courts
have endorsed this view)
○ Maphai believes no rights are involved as there is something wrong about
deliberately overriding the rights of people for the sake of some social good
● Oyowe:
○ on consequentialist reasoning it seems wrong to state that there will be no
correlative disadvantages
Ubuntu, rectification and the land question
Ubuntu, rectification and the land question
● Historical context (paragraph 9.4.1)
○ Land dispossession unjustly transferred to the white minority. Natives Land
Act, barred indigenous Africans, that is, members of racial or ethnic groups
native to Africa, from buying and hiring about 93% of South African land.
○ This effectively confined African ownership of land to 7% of South African
land.
○ The Native Trust and Land Act of 1936. Although it brought about a negligible
increase in black 25 ownership of land from 7% to 13,5%, like its
predecessor, it also prohibited black people from buying and hiring land
apportioned to white people.
○ Without land = no primary source of livelihood and forced to work for white
farmers to secure their livelihood
Ubuntu moral principle and land redistribution
● Principle of compensation
● Suppose financial compensation is insufficient: the state ought to redistribute lands
for the purpose of restitution.
● How should the state redistribute land?
● Metz: ubuntu moral theory may provide the answer
● Ubuntu moral theory attempts to appeal to some idea of the good
● Maxim “a person is a person through other persons” is believed to entail the insight at
heart of ubuntu:
● Certain kinds of relationships, in particular harmonious as opposed to discordant, are
constitutive of the good
● Desmond Tutu says social harmony is the greatest good – anything that subverts or
undermines this sought-after good is to be avoided like the plague
● Harmony entails identity and solidarity
● Identity - to identify with someone and think of him in terms of a ‘we’, belonging to
one’s group
● Sharing same goals & co-ordinating together to realise those goals
● Shared identity: both regard each other this way
○ Ie, Members of a family, church and so on, identify with one another in this
sense
● Solidarity – exhibit goodwill towards someone
● Wanting to benefit & help them
● What all good actions have in common is that they honour harmony, or prize it very
highly, seeking to develop relationships of identity and goodwill towards others in a
way that honours and respects rights
● Land disposession in an Ubuntu way?(way that honours harmoney)
● 2 distinct strategies
● (Thomson) Rectification involves compensating for the past wrong in order to as far
as possible restore the original state.
○ Return land to disspossed black people/descendants
● (Maphai) The primary consideration is oriented to the future, specifically the wider
benefits, or otherwise utility, for society
○ Just redistribution must take into consideration wider benefits like including
land productivity and economic efficiency
● (Metz) Ubuntu mora theory is able to combine insights regarding compensation &
utility
● Some wrong was done in past since legislated dispossession of land was an act that
failed to honour harmony = lacked identity and good will
● Has to be forward looking!
● Future considerations are also morally important – transfer of land to black people
should bring about benefit & not harm to them (better off not worse off)
● In a way that honours people
● Land redistribution should make black people better off
● (Metz) Means: ensuring the productivity of land & overall economic efficiency
● Ubuntu moral theory entails: state should train & finance black people who stand to
be compensated by land
● Means state not justified in expropriating land from all whites at once where this may
negatively impact productivity and economic efficiency for the sake of black people
Ubuntu moral principle and land redistribution
Ubuntu moral principle and land redistribution
● Principle of compensation
● Suppose financial compensation is insufficient: the state ought to redistribute lands
for the purpose of restitution.
● How should the state redistribute land?
● Metz: ubuntu moral theory may provide the answer
● Ubuntu moral theory attempts to appeal to some idea of the good
● Maxim “a person is a person through other persons” is believed to entail the insight at
heart of ubuntu:
● Certain kinds of relationships, in particular harmonious as opposed to discordant, are
constitutive of the good
● Desmond Tutu says social harmony is the greatest good – anything that subverts or
undermines this sought-after good is to be avoided like the plague
● Harmony entails identity and solidarity
● Identity - to identify with someone and think of him in terms of a ‘we’, belonging to
one’s group
● Sharing same goals & co-ordinating together to realise those goals
● Shared identity: both regard each other this way
○ Ie, Members of a family, church and so on, identify with one another in this
sense
● Solidarity – exhibit goodwill towards someone
● Wanting to benefit & help them
● What all good actions have in common is that they honour harmony, or prize it very
highly, seeking to develop relationships of identity and goodwill towards others in a
way that honours and respects rights
● Land disposession in an Ubuntu way?(way that honours harmoney)
● 2 distinct strategies
● (Thomson) Rectification involves compensating for the past wrong in order to as far
as possible restore the original state.
○ Return land to disspossed black people/descendants
● (Maphai) The primary consideration is oriented to the future, specifically the wider
benefits, or otherwise utility, for society
○ Just redistribution must take into consideration wider benefits like including
land productivity and economic efficiency
● (Metz) Ubuntu mora theory is able to combine insights regarding compensation &
utility
● Some wrong was done in past since legislated dispossession of land was an act that
failed to honour harmony = lacked identity and good will
● Has to be forward looking!
● Future considerations are also morally important – transfer of land to black people
should bring about benefit & not harm to them (better off not worse off)
● In a way that honours people
● Land redistribution should make black people better off
● (Metz) Means: ensuring the productivity of land & overall economic efficiency
● Ubuntu moral theory entails: state should train & finance black people who stand to
be compensated by land
● Means state not justified in expropriating land from all whites at once where this may
negatively impact productivity and economic efficiency for the sake of black people
Utility and compensatory justice
● Metz’s theory finds balance between backward- & forward-looking rationales for
rectification
● State should compensate only when doing so will realise wider social benefits
● Land productivity and economic efficiency but where victims of past injustice are the
ones to enjoy the benefits
● Implies that rectification by way of compensation for victims of previous wrongs
depends in part on whether & to what extent it would benefit previous victims or
otherwise yield greater economic efficiency
● Land redistribution independent of benefits or prospective social benefits of land
redistribution?
● But why should this be the case?
● Ferrari example: Intruder steals my Ferrari, but I am careless driver and if I had my
Ferrari back, I would pose a threat to myself & other motorists. Unjust for someone to
retain it until I no longer pose a threat
● Similarly, seems unjust towards black people to delay restitution until some wider
social benefit of land redistribution
● Metz seems to imply that benefits/being better of is a prerequisite for redistribution
● Two incompatible aims: returning lands to previously dispossessed persons and
seeking to realise these social benefits to them.
○ There is no guarantee at all that pursuing the latter will accomplish the former.
● Whereas restitution constitutes returning victims to a condition they would have been
in in the absence of the wrong, the anticipated social benefits might not be
forthcoming to them
● Risk: Seeking to realise social benefits might not give victims what they are justly
owed or might slow down the process of compensating victims of unjust land
dispossession
● Ntsebeza Inherent tension: two incompatible imperitives
● S 25 expropriation of land for compensation vs. protection of private ownership of
property this delays realization of former
● Expropriating is in interests of victims/descendants whilst protecting right to property
is in interests of offenders/descendants
Utility and compensatory justice
