In recent years there has been growing interest in the contrast between Humean theories of property, on the one hand, and Lockean and Rousseauian theories, on the other. The contrast is a broad and abstract one, along the following lines.

This article adapts John Rawls’s writings, arguing that past injustice can change what we ought to publicly affirm as the standard of justice today. My approach differs from forward-looking approaches based on alleviating prospective disadvantage and backward-looking historical entitlement approaches. In different contexts, Rawls’s own concern for the ‘social bases of self-respect’ and equal citizenship may require public endorsement of different principles or specifications of the standard of justice. Rawls’s difference principle focuses on the least advantaged socioeconomic group. I argue (...) that a historicized difference principle considers the relative standing of racial, gender, and other historically stigmatized groups; provides their members assurance by weakening incentives to manipulate justice to another group’s advantage; and may result in policies resembling reparations, though justified by forward-looking considerations of self-respect and public assurance. I then examine how disrespectful justifications were historically used to forcibly include indigenous peoples as citizens. While Rawls thinks providing citizens one package of basic liberties signals respect, indigenous self-government could better support self-respect. I invoke Rawlsian international justice, which calls for mutual respect between peoples. Indigenous peoples’ status should reflect their past and persisting peoplehood, providing assurance by weakening incentives to unjustly transform international into domestic contexts. (shrink)

This article argues against privileging the expectations of settlers over those of dispossessed peoples. I assume in this article that historical rights to occupancy do not persist through all changes in circumstances, but a theory of justice should reduce perverse incentives to unjustly settle on land in hopes of legitimating occupancy. Margaret Moore, in her 2015 book, A Political Theory of Territory, tries to balance these intuitions through an argument based on legitimate expectations. I argue that Moore’s attempt to reduce (...) perverse incentives (through expectation-altering institutional design) fails. Moore unduly privileges settler expectations, especially over those of indigenous peoples. I criticize United States court decisions resurrecting the expectations of past settlers in the allotment era (which share structural features with Moore’s arguments). Lastly, distinguishing between ‘final’ supersession of historical injustice through changing circumstances, and ‘dormant’ supersession, shows how indigenous claims to land and jurisdiction may revive. (shrink)

Past injustices demand a response if they have led to present deprivation. But skeptica arthe that there is no need to introduce a self-contained concept of 'historical justice' as our general concepts of justice provide all the necessary resources to deal with present inequalities. A rights-based approach to intergenerational issues has some advantages when compared to rival approaches: those based on intergenerational community; for example; or on obligations deriving from traditional continuity. While it is possible to ascribe rights to beings (...) who are not presently in existence; the case for ascribing rights to future generations is much stronger than for past generations. (shrink)

I here defend historical entitlement theories of property rights against a popular charge. This is the objection that such theories fail because no convincing account of original appropriation exists. I argue that this argument assumes a certain reading of historical entitlement theory and I spell out an alternative reading against which it misfires. On this reading, the role of acts of original appropriation is not to justify but to individuate people’s holdings. I argue that we can identify which acts count (...) as original appropriation against the background of a general justification for a practice of property rights. On this view, what I will call ‘natural’ acts of original appropriation are acts by which a person begins to satisfy the general conditions for justified ownership. Finally, I offer an interpretation of John Locke's theory of appropriation along these lines and argue that it provides an attractive reading of his view. (shrink)

Non-consequentialist libertarianism usually revolves around the claim that there are only “negative,” not “positive,” rights. Libertarian nega- tive-rights theories are so patently problematic, though, that it seems that there is a more fundamental notion at work. Some libertarians think this basic idea is freedom or liberty; others, that it is self-ownership. Neither approach is satis- factory.

Michael Moehler’s Minimal Morality: A Multilevel Social Contract Theory makes important contributions to the social contract tradition, particularly in exploring how social contract theories can address challenges that arise from deep moral pluralism. Fundamentally, the work provides a multilevel account of morality, though simplified for presentation as a two-level view of morality. These two levels of morality differ significantly in their form and in their contexts of applicability. One level is that of ‘traditional morality’, involving a rich set of practices, (...) motivations and shared values common to many mainstream moral theories. For instance, John Rawls provides a version of traditional morality in the form of principles of justice grounded in a shared conception of society as a system of cooperation between free and equal citizens motivated by a sense of justice. The second level is that of ‘minimal morality’, for which the book is named. Minimal morality is grounded in purely prudential and instrumental reasoning, and thus does not rely upon any special moral commitments or motivations. This latter level of morality, Moehler argues, is particularly important for societies possessing extremely deep moral pluralism rather than the moral consensus necessary for traditional moral. (shrink)

While there has been renewed attention to racial justice in the United States and around the world recently, there is a long tradition among philosophers and other theorists of reflecting on the nature racial injustice and the remedies that it demands. This article discusses two prominent approaches to racial justice, liberal egalitarian theory and critical race theory, and focuses on four issue areas: reparations, affirmative action and race‐conscious policy, integration, and criminal justice. Although liberal and critical approaches to racial justice (...) are sometimes seen as in opposition to each other, it is argued here that there is often convergence as well. Despite their differing pedigrees, a shared commitment to racial equality and a shared recognition of the profound, structural nature of racial inequality often leads scholars from different starting points to similar, radical conclusions. (shrink)

En este trabajo respondo una objeción a la tesis de que la teoría de Rawls debe atender problemas relacionados a la injusticia histórica. Esta objeción sostiene que dicha teoría está justificada en no considerar problemas de injusticia histórica debido a su supuesto carácter exclusivamente prospectivo. La objeción tiene dos presentaciones diferentes. Primero, como la idea de que hay razones internas a la propia teoría de Rawls que justifican dicho carácter exclusivamente prospectivo —tales como el problema de elección modelado en la (...) posición original y el hecho de que la justicia-como-equidad debe ser una concepción de justicia no-comprehensiva. Segundo, como la idea de que hay razones externas a la teoría de Rawls —en concreto, la supuesta existencia del así llamado problema de la no-identidad, que justifican el carácter exclusivamente prospectivo no sólo de los principios de justicia rawlsianos sino de cualquier otra concepción de justicia distributiva. Trataré de mostrar que esta objeción, tanto en su presentación interna como externa, es equivocada. (shrink)

Recently, there has been an effort to make libertarianism compatible with a redistributive inheritance tax: When the tax is levied, the taxpayer in question is already dead and as such she cannot be a bearer of rights. The state is therefore allowed to redistribute the (value of) the estate according to some distributive principle. I consider (and finally dismiss) four successive arguments, each concluding that the state is allowed to use the estate for redistributive purposes. I show that neither of (...) them is able to reconcile (right-) libertarianism with a redistributive inheritance tax. Instead of trying to square the circle, proponents of such a tax should meet the theoretical essentials of (right-) libertarianism head-on. (shrink)

Philosophical defenses of property regimes can be classified as supporting either a conservative politics of property rights—the political protection of existing property titles—or a radical politics of direct political intervention to redistribute property titles. Traditionally, historical considerations were used to legitimize conservative property‐rights politics, while consequentialist arguments led to radical politics. Recently, however, the philosophical legitimations have changed places. Conservatives now point to the beneficial economic consequences of something like the current private‐property regime, while radicals justify political redistribution as restitution (...) for historical misappropriations. This shift can be explained by such factors as the failure of state‐directed redistributions of property during the twentieth century to benefit the poor. But there are limitations to the usefulness of historical arguments for radicals, and of consequentialist arguments for conservatives: namely, the undeserving poor and the idle rich, respectively. (shrink)

I argue that changes in the numerical identity of groups do not necessarily speak in favour of the supersession of some historical injustice. I contend that the correlativity between the perpetrator and the victim of injustices is not broken when the identity of groups changes. I develop this argument by considering indigenous people's claims in Argentina for the injustices suffered during the Conquest of the Desert. I argue that present claimants do not need to be part of the same entity (...) whose members suffered injustices many years ago. For identifying the proper recipients of reparation, all that is necessary is that the group who suffered the historical injustice under consideration has survived into the present. I also support a view upon which present living members of a certain group have reasons to redress those injustices perpetrated by their predecessors if they are relevantly connected with each other. In particular, by relying on the notion of collective inheritance, I argue that if present-day members of a certain group claim that they are the continuation of the group whose past members bequeathed them certain goods, they cannot consistently reject such a membership when the very same people legated them certain evils. (shrink)

Why should leaders of polities; as representatives of citizens; be required to apologise and make reparations for deeds committed in the historical past? Assumptions commonly made by liberals about the scope of responsibility and the duties of citizens make this question difficult to answer. This paper considers some unsuccessful attempts within a liberal framework to defend obligations of reparation for historical injustices and puts forward an account based on the lifetime-transcending interests of citizens.

Journal of Social Philosophy, Volume 53, Issue 1, Page 8-20, Spring 2022.

This article discusses two normative questions raised by cases of colonial settlement. First, is it sometimes wrong to migrate and settle in a previously inhabited land? If so, under what conditions? Second, should settler countries ever take steps to undo wrongful settlement, by enforcing repatriation and return? The article argues that it is wrong to settle in another country in cases where one comes with intent to colonize the population against their will, or one possesses an adequate territorial base somewhere (...) else, lacks an urgent interest in moving, and seeks to settle in a new place under conditions where settlement would severely harm the practices of prior occupants. It also argues for a presumption of repatriation and return in the first generation of wrongful settlement and holds that these remedies may be extended to second and higher generations in some – but not all – cases. (shrink)

Journal of Social Philosophy, EarlyView.

Advocates of remedying historical injustices urge political communities to take responsibility for their past, but their arguments are ambiguous about whether all past injustices need remedy, or just those regarding groups that suffer from current injustice. This ambiguity leaves unanswered the challenge of critics who argue that contemporary injustices matter, not those in the past. I argue instead for a focus on injustices that have roots in the past, and continue to the present day, what I call enduring injustice. Instead (...) of focusing on finding the party responsible for the injustice, I argue that we use history to help us understand why some injustices endure, which I suggest is partly due to the limitations of liberal justice. I conclude with a conception of responsibility for repairing enduring injustice that deemphasizes searching for the causal agent, and instead focuses on how to repair the injustice, which I explain through an expansive conception of shared space. (shrink)

This article argues that linguistically endangered minority groups often face endangerment due to structural linguistic injustice that arises from past injustices and ongoing unjust social processes. Language revitalization is often a justified way of reforming unjust social structures. I connect this discussion to another debate, namely, whether historical injustice (and the requirement for its correction) may be superseded. I ask: which changing circumstances might lead to the supersession of structural linguistic injustice? Of the many reasons to reform unjust social structures, (...) I focus on dignity-based concerns. Historically-sensitive dignity-based concerns are relevant for judging whether supersession of structural linguistic injustice has occurred. My view is largely present-oriented, but history still plays a role in deciding the strength of justificatory bases for structural reformation. (shrink)

My aim of this paper is to clarify, and in a certain very limited way to defend, historical theories of property rights (and their associated theories of social or distributive justice). It is important, I think, to better understand historical rights for several reasons: first, because of the extent to which historical theories capture commonsense, unphilosophical views about property and justice; then, because historical theories have fallen out of philosophical fashion, and are consequently not much scrutinized anymore; and finally, because (...) of (what I see as) the continuing need to better understand the historical components of our society's responsibilities to the descendants of victims of systematic injustice in our own past. The case I will have in mind throughout is that of the property claims of Native American tribes, claims based on their historical standing as the original owners of certain lands and resources. And while I will concentrate here only on the question of rectifying past violations of property rights, this will constitute at least a start to answering more general questions about just rectification, which includes the more serious and less compensable wrongs of violence against persons. (shrink)

Theories of political authority divide naturally into those that locate the source of states' authority in the history of states' interactions with their subjects and those that locate it in structural (or functional) features of states (such as the justice of their basic institutions). This paper argues that purely structuralist theories of political authority (such as those defended by Kant, Rawls, and contemporary “democratic Kantians”) must fail because of their inability to solve the boundary problem—namely, the problem of locating the (...) boundaries between different states' domains of authority in the natural or intuitive places. (shrink)

Hitherto, ethics has barely addressed the normative significance of time and timeliness themselves. This contribution first distinguishes between four elementary respects in which time is normatively significant. This is followed by an investigation into the temporal dimension of distributive, restitutive, and retributive justice. It is shown that aspects of temporal duration and intervals are every bit as relevant for a theory of justice as are the finiteness of human life and of interpersonal relations.

Until relatively recently, few democrats had much to say about the constitution of the ‘demos' that ought to rule. A number of recent writers have, however, argued that all those whose interests are affected must be enfranchised if decision-making is to be fully democratic. This article criticizes this approach, arguing that it misunderstands democracy. Democratic procedures are about the agency of the people so only agents can be enfranchised, yet not all bearers of interests are also agents. If we focus (...) on agency, rather than who is affected, then this leads us to focus on the permissible limits of action, rather than who makes the decision. Just as individual sovereignty is ordinarily limited by the requirement not to injure others, we may apply similar restrictions to what a demos can permissibly do. Thus, any collection of individuals may choose to regulate their affairs collectively for mutual benefit, but should be prohibited from imposing negative externalities on outsiders. On this view, the constitution or definition of the demos is arbitrary, from the democratic point of view. Moreover, democracy does not require the expansion of the franchise, unless injuries cannot be avoided. (shrink)

This paper offers a critique of David Miller's recent account of inherited national responsibility. It is argued that the account leads to a dilemma: either it does not make sense to say that we can accept the national inheritance; or; on a different sense of acceptance; it does; but then we encounter a serious conflict with one of our important intuitions about responsibility.

: My aim in this essay is to remove some of the rubbish that lies in the way of an appropriate understanding of rectificatory compensation, by arguing for the rejection of the counterfactual conception of compensation. Although there is a significant extent to which contemporary theorists have relied upon this idea, the counterfactual conception of compensation is merely a popular assumption, having no positive argument in support of it. Moreover, it can make rendering compensation impossible, and absurd notions of compensation (...) can result from its use, results that may themselves constitute injustices. This latter difficulty is most troubling when the CCC is employed in large compensatory cases like the case of rectificatory compensation for the descendants of American slaves. I want to suggest that, taken together, the difficulties with the CCC yield sufficient reason for rejecting it as an acceptable rectificatory notion. (shrink)

Jeremy Waldron introduced the notion of rights supersession into the philosophical discussion about restitutive justice in cases of historic injustices. He refers to land claims by indigenous peoples as a real-world example and as an application of his theory of rights supersession. He implies that the changes that have taken place in settler states since the first years of colonialism are the kind of changes that lead to a supersession of land rights. The article proposes to unbundle property rights into (...) rights of benefit, control, use, and access and to distinguish between different forms of attachment. This strategy allows for a third option of restitution and supersession, namely partial restitution. Partial restitution grants current land holders those rights that they need to satisfy their attachments and basic distributive justice claims. At the same time, rights that are not needed for either purpose will revert back to indigenous peoples as the original owners. The article argues that the notion of partial restitution allows for far more extensive land rights than a less nuanced application of the supersession thesis. (shrink)

The case for reparations for grievous acts of historical injustice has been getting a lot of attention lately. But I aim to broaden the discussion in two ways. First, I am not only going to talk about reparations as a means of rectifying the injuries inflicted by slavery and the genocide of indigenous peoples, the theft of their land, and the ongoing ripple effects of these historic wrongs. I am also going to talk about reparations for a wider variety of (...) historical injustices, including, most importantly, the long-term economic oppression of women, and the historical exploitation of labor. Second, I am not going to base my argument on the principle of equality, as most people currently do, but on the principle of liberty, as it is understood by libertarians on both the right and the left, at least as long as they believe what they say they believe. Not because I think that egalitarian demands for reparations are wrong. Rather, my point is that the principle of liberty, which is often raised as a defense to claims based on the principle of equality, actually leads to exactly the same place. Finally, I will discuss one possible form of reparations that has largely been ignored, but which has a special connection to libertarian principles, and I will show how it can provide some real relief without provoking the opposition that society-wide redistributive remedies usually face. (shrink)

Many legal, social, and medical theorists and practitioners, as well as lay people, seem to be concerned with the harmfulness of discriminative practices. However, the philosophical literature on the moral wrongness of discrimination, with a few exceptions, does not focus on harm. In this paper, I examine, and improve, a recent account of wrongful discrimination, which divides into a definition of group discrimination, and a characterisation of its moral wrong-making feature in terms of harm. The resulting account analyses the wrongness (...) of discrimination in terms of intrapersonal comparisons of the discriminatee’s actual, and relevantly counterfactual, well-being levels. I show that the account faces problems from counterfactuals, which can be traced back specifically to the orthodox - comparative, counterfactual, welfarist - concept of harm. I argue that non-counterfactual and non-comparative harm concepts face problems of their own, and don’t fit easily with our best understanding of discrimination; hence they are unsuitable to replace the orthodox concept here. I then propose a non-orthodox - comparative, counterfactual, hybrid - concept of harm, which relies on counterfactual comparisons of ways of being treated. I suggest how such a concept can help us handle the problems from counterfactuals, at least for my account of discrimination. I also show that there are similar proposals in other harm-related debates. An upshot of the paper is thus to corroborate the case for a non-orthodox, hybrid concept of harm, which seems better able to fulfil its functional roles in a variety of contexts. (shrink)

A range of developing countries and international advocacy organizations have argued that wealthy countries, as a result of their greater historical contribution to human-induced climate change, owe a ?climate debt? to poor countries. Critics of this argument have claimed that it is incoherent or morally objectionable. In this essay we clarify the concept of climate debt and assess its value for conceptualizing responsibilities associated with global climate change and for guiding international climate negotiations. We conclude that the idea of a (...) climate debt can be coherently formulated, and that while some understandings of the idea of climate debt could lead to morally objectionable conclusions, other accounts would not. However, we argue that climate debt nevertheless provides an unhelpful frame for advancing global justice through international climate negotiations ? the only existing means of resolving political conflict over the collective action problems posed by human-induced climate change ? due to its retrospective and potentially adversarial emphasis, and to problems of measurement. (shrink)

Do those of us living in the present have an obligation to rectify injustices committed by others in the distant past? This article is an attempt to revisit the problem of historical injustice by bringing together recent work on structural injustice in relation to the problem of wrongful benefit. The problem of benefitting from injustice, I argue, provides firmer grounds of obligation in forward-looking accounts of responsibility for historical injustice specifically. I argue (1) that if the negative effects of historical (...) injustice endure into the present, and (2) if we participate in structures that allow for its reproduction, then (3) our moral responsibility to set matters straight increases to the extent that we derive a benefit from the perpetuation of an unjust _status quo_. Finally, (4) a general moral obligation to make the world less unjust generates a motive for individuals to learn more about their place in a structure that reproduces the negative effects of historical injustice. (shrink)

This paper offers a critique of recent attempts, by George Sher and others to justify compensation to be paid to descendants of deceased victims of past wrongs. This recent attempt is important as it endeavours to avoid some well-known critiques of previous attempts, such as the non-identity problem. Furthermore, this new attempt is grounded in individual rights, without invoking a more controversial collectivist assumption. The first step in this critique is to differentiate between compensation and restitution. Once this important distinction (...) is clear, an examination of several factors follows: the importance of the passage of time vis-à-vis claims for compensation and/or restitution, the responsibility of the would be payers, the responsibility of the descendants of the victims, the welfare level of the descendants of the victims, information-related issues, and several additional factors. The conclusion is that once we take into account the distinction between compensation and restitution, and the additional factors mentioned, the case for compensation and/or restitution under the ‘continuing injustice argument’, is highly limited. (shrink)

This paper takes a novel approach to the active bioethical debate over whether advance medical directives have moral authority in dementia cases. Many have assumed that advance directives would lack moral authority if dementia truly produced a complete discontinuity in personal identity, such that the predementia individual is a separate individual from the postdementia individual. I argue that even if dementia were to undermine personal identity, the continuity of the body and the predementia individual’s rights over that body can support (...) the moral authority of advance directives. I propose that the predementia individual retains posthumous rights over her body that she acquired through historical embodiment in that body, and further argue that claims grounded in historical embodiment can sometimes override or exclude moral claims grounded in current embodiment. I close by considering how advance directives grounded in historical embodiment might be employed in practice and what they would and would not justify. (shrink)

Demands calling for reparations for historical injustices—injustices whose original victims and perpetrators are now dead—constitute an important component of contemporary struggles for social and transnational justice. Reparations are only one way in which the unjust past is salient in contemporary politics. In my book, Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress, I put forward a framework to conceptualise the normative significance of the unjust past. In this article, I will engage with the insightful comments and try (...) to address the concerns of the contributors to the symposium on my book. I will discuss whether and in what sense my framework incorporates past-regarding duties, how it is different from causal interpretations of the relationship between past and present injustice, whether it can carve out a greater place for blame in our thinking about responsibility for structural injustice, whether such a responsibility needs to hinge upon an account of solidarity, and how de-temporalising injustice can cast new light on immigration politics. In particular, I will stress and further clarify the importance that the notion of ‘structural debt’, which my book develops to reflect on historical responsibility, can play in thinking about what is owed to an unjust history. (shrink)

This essay examines the most recent justifications for a people's exclusive right to resources as part of a territorial right. Divided into eight parts, the discussion covers contemporary philosophical discussion regarding: the conception of natural resources, the conception of resource rights, the general form of arguments supporting resource rights, arguments from self-determination, objections to arguments from self-determination, arguments from residence, arguments from improvement, and new directions for research in the future.

This article examines the nature of the wrongs that are inflicted on individuals and groups who have been expelled from the land that they previously occupied, and asks what they might consequently be owed as a matter of corrective justice. I argue that there are three sorts of potential wrongs involved in such expulsions: being deprived of the moral right of occupancy; being denied collective self-determination; and having one's property rights violated. Although analytically distinct, all of these wrongs are likely (...) to be perpetrated when people are expelled from their homelands. Although there is substantial literature on corrective justice dealing with such cases, most of that literature focuses on the expropriation of property only, and is therefore unlikely to grasp the full implications of the wrong done or to reveal the full extent of what might be owed to people as a matter of corrective justice. (shrink)

This article examines debates about political forgiveness in liberal, pluralist societies. Although the concept of forgiveness is not usually taken up by liberals, I outline a plausible conception by exploring two recent approaches. The first, ‘unattached articulation’, concept requires no real emotional change on the forgiver’s part, but rather a form of civic restraint. In contrast, the second version highlights a strong form of empathy for perpetrators. In spite of their advantages, each concept proves too extreme. The problems are revealed (...) by focusing on the case of the Harkis, who fought for the French during the Algerian war. Often still marginalised in French society, their case helps to highlight the conceivability of a ‘middle-ground’ or moderate concept of political forgiveness. Its core rests on the forgiver’s care for the social world. While this concept brings considerable challenges also, and is not inevitable in any particular case, it entails a more plausible combination of emotional and rational shifts in the forgiver’s world-view. Although the article does not recommend forgiveness by any person or group, it observes, recalling Arendt’s idea of amor mundi or ‘love of the world’, that political forgiveness may sustain a viable connection between diverse citizens’ public and non-public lives. (shrink)

In this article, I defend a democratic form of the productivist welfare state. I argue that this form of the state can best cope, theoretically and practically, with the diversity of deeply morally pluralistic democratic societies for two reasons. First, the justification of this form of the state rests solely on general facts about human nature, basic human needs, and efficiency considerations in a world of moderately scarce resources. Second, this state does not aim to promote a specific view of (...) justice, but human flourishing more generally, expressed in terms of individual and collective productivity. The proposed democratic productivist welfare state supports its citizens up to the level that allows them to develop and exercise their talents and abilities without providing incentives for free riding. I argue that, under the specific empirical circumstances that I describe, in particular certain informational restrictions concerning the precise productive and destructive capacities of the members of society in practice and the soundness of the Aristotelian principle, this goal may best be achieved in practice by the introduction of an unconditional basic income at subsistence level, if society is sufficiently developed economically to provide such an income. On productivist grounds, such an unconditional subsistence income also addresses, pragmatically and partially, the problem of historical injustices against the weakest members of society and provides all group members with the means for democratic participation. (shrink)

This paper addresses a question which is fundamental to the perceived legitimacy of the distribution of resources today: to what extent does unfairness in how assets came to be acquired in the past affect incomes and wealth now? To answer that question requires two things: first, a principle to determine what is, and what is not, a just acquisition of wealth or a just source of income; second, a means of using that principle to estimate what fraction of wealth and (...) income is now unjust. I use a principle put forward by Robert Nozick to provide the first of these things and then use a model of wealth accumulation and economic growth to illustrate its implications for the scale of unfairness today. The greater is depreciation of assets, the higher are saving rates out of labour income and the less important is human capital the more transient are the effects of past economic injustices. I use data on the perceived unfairness of economic outcomes to see if there is any evidence that those features which the model implies should influence the durability of injustice help explain cross-country differences in attitudes towards unfairness. (shrink)