The libertarian argument for reparations

1 INTRODUCTION

The case for reparations for grievous acts of historical injustice has been getting a lot of attention lately, both within and outside academia (e.g., California Reparations Report 2023; Coates, 2014; Martin & Yaquinto, 2007). Those who advance it claim that the injuries inflicted by these acts are ongoing and severe, and the only way that members of the groups that were the focus of these acts can begin to regain the place they would have held within society had these injustices not occurred, or at least be able and willing to move on from them into the future, is to provide current members of these victimized groups reparations for the wrongs committed against their forebearers. In New World societies, talk of reparations has typically focused on two of these historic wrongs. First, the continuing injury inflicted by slavery and the discrimination against Black people that continued in its aftermath. Second, the injury inflicted through the widespread murder and seizure of land by government and government-sanctioned forces from indigenous peoples. In both the New and Old World, however, other groups—for example, religious or ethnic minorities who have been subjected to centuries of persecution—are also sometimes discussed as being entitled to reparations. Whenever reparations are discussed, however, the claim has generally been that these are required for violations of the principle of equality, a principle to which liberal societies have long paid lip service, but which is now (in some quarters, at least) beginning to be taken more seriously.

But I am going to talk about reparations in a different way. Not because I think that any of the current arguments for reparations for Black and indigenous people or anyone else for that matter do not lead to the conclusions that their proponents say they do. On the contrary, with perhaps a few exceptions, I find these arguments not only valid but also convincing. Accordingly, nothing I will say in this paper should be taken as an argument against any of these existing claims for reparations. But I do want to broaden the current discussion in two ways.

First, in part I, I am going to set forth what I call a general theory of reparations. In it, I am not only going to talk about reparations as a means of remedying the injuries inflicted by slavery and by the genocide of indigenous peoples, the theft of their land, and the ongoing ripple effects of these historic wrongs. And I am not merely going to add to this a call for reparations for injuries caused by the long-time persecution of the usual religious, ethnic, and other minority populations. I am going to talk about reparations for an even wider variety of historical injustices, including, most importantly, the long-term economic oppression of women, and the historical exploitation of labor.

Second, in part II, I am going to set forth my argument for reparations, but not one based on the principle of equality, as most people currently do. Instead, I am going to base it on the principle of liberty. Again, this should not be understood as constituting a claim that demands for reparations based on the principle of equality are wrong. Rather, my point is that the principle of liberty, which is often raised as a defense by those on the political right to claims based on the principle of equality, does not support the position its right-wing proponents think it does. It actually leads us to exactly the same place as arguments based on the principle of equality are claimed to do. Indeed, properly understood, the principle of liberty provides an alternative and in fact stronger basis for such claims.

Finally, in part III of the paper, I shall put forth a specific proposal for beginning to fulfill our obligations to make reparations under the principle of liberty. But again, I want to make the limits on what I will propose clear from the outset. I will not be suggesting that my proposal offers the only way we can fulfill this obligation—I will merely suggest it is one way. I will not even claim that following my proposal is mandatory in the sense of being one required element in a package of other remedies. And I will not suggest that if even if we were to follow my proposal with gusto, we could completely fulfill our obligation to make reparations and clear the historical decks, leaving us all in a position to go forward together under the grace of justice once again. On the contrary, I will argue that our obligation to make reparations is an ongoing process that must be addressed by various remedies executed in different ways and to different extents over time. What I will offer in this paper is simply an important option that is worthy of consideration, but which has currently been largely neglected. I believe this remedy has a special connection with libertarian principles, but I am not claiming that a remedy must have such a special connection to be libertarian. A remedy merely needs to be consistent with libertarian principles to be acceptable. Finally, note that even if one were to reject my particular remedial suggestion, that would not undermine my overall claim that a remedy is due. Indeed, everything else about my argument would still stand.

There is one more preliminary matter I want to set forth before I begin addressing all the above. There are many objections raised today to claims for reparations, no matter what their form (see generally Gross, 2008). But to understand the libertarian argument for reparations and appreciate what is attractive about it, it will be helpful to keep in mind that these objections are typically driven by two underlying concerns. The first is that many people think any award of reparations necessarily implies that moral blame for the relevant historical wrongs is transferrable, at least in part, from the group to which the original wrongdoers belonged (meaning, in most cases, white people) to people who are members of that group today. Most current whites, however, are not willing to accept transference of any amount of moral guilt associated with wrongdoing in the past (see Parker, 2019). They did not personally do any of the things that qualify as historical injustice. Indeed, they claim to recognize that these acts were wrong and would claim that they vigorously support and indeed are primarily responsible for the enactment of rules preventing the repetition of these wrongful acts today. So why should their moral scorecard be tarnished by the original sin of the now-long-dead?

The second underlying concern that white people typically express is that they do not see how payments to anyone alive today can be anything other than a windfall (Luna, 2023). No one alive today (with perhaps a handful of exceptions) was an actual victim of historical injustice. And moral victimhood, they believe, is no more transferable between generations than moral blame. If reparations are going to go to some people who are suffering and not others, then this merely repeats the wrongs of the past by not treating all those who are suffering today equally. Besides, a good number of people (those currently in the middle or upper class) among previously oppressed groups are not suffering today at all, while there are many poor whites who are suffering. No theory of justice worthy of our respect would advocate giving benefits to those who are not suffering and charging this to those who did not cause this suffering and who are in fact suffering themselves. If you want to know what unfairness is, the objection goes, this is a textbook example.

Obviously, any approach for reparations needs to have an answer to these two concerns if it is to have any hope of getting anywhere in the real world. But any approach to reparations worthy of our support needs to address these concerns in a principled way, and not merely with an eye toward reducing the degree of practical political resistance, although the latter goal is not inappropriate or unimportant. Currently, all the existing approaches to reparations that specifically address these concerns simply take them head on—that is, they argue that moral transference is indeed justified even to those who have not personally committed any wrongdoing and that members of previously oppressed groups are indeed morally entitled to reparations even if they are not personally suffering and those in other groups are suffering more or just as much. Nothing in this paper assumes that these responses are wrong. But clearly, the concerns prevalent today among white people would not continue to be so widely expressed if the arguments for reparations currently on offer were more convincing. It would therefore be helpful to have an approach that instead of dismissing these concerns as unjustified, avoids them, and does so in a principled way. And this, I will argue, is what the libertarian approach I am about to offer does. And with that said, I shall now get on with describing and defending it.