Abstract
This paper introduces a special issue of Social & Legal Studies devoted to the topic of ‘Repairing Historical Wrongs’. In recent decades, both scholars and activists have given increasing consideration to various legal and ethical obligations which can arise as a consequence of serious acts of injustice committed by previous generations and/or political regimes. Many of these efforts to repair historical wrongs pose a challenge to established models of legal responsibility and corrective justice. To help make sense of the core issues at stake, we have divided the paper into four sections, starting with an analysis of the limitations of existing avenues for legal redress, and the types of arguments that have emerged in response to these limitations. From here, we go on to consider the ethics and mechanics of institutional and individual inheritance, paying particular attention to a widespread tendency to treat assets and accomplishments as collective goods, while reducing wrongdoing to individual acts. This is followed by a snapshot of potential remedies, in which we identity three key modes of reparation: financial restitution, apologies and holistic approaches. Finally, we consider the political dynamics surrounding the representation of specific cases as ‘historical wrongs’, and the potential consequences associated with this approach to the past.
Keywords
The last two decades have been marked by an upsurge of interest in questions of historical injustice. Four overlapping themes can be identified here. First, we have calls for financial compensation for systemic abuses of human rights which occurred in the past. This is most prominently associated with campaigns for reparations for the history and legacies of transatlantic slavery, which in turn draw much of their inspiration from earlier claims brought against governments for Second-World-War-era abuses. Second, we have growing calls for governments and other actors to formally apologize for prior acts of historical injustice, such as lynching in the United States, the failings of the Catholic Church, and various abuses associated with colonial rule and wartime massacres. Third, we have the emergence of ideas and institutions associated with transitional justice, which are most prominently connected to various models of truth and reconciliation following the fall of authoritarian regimes and/or the cessation of armed conflict. Finally, we have the growing prominence of questions of national commemoration and public education, reflecting competing efforts to shape how a given sequence of historical events comes to be represented and remembered.
These various efforts to repair historical wrongs pose a number of challenges to established models of legal responsibility and corrective justice. In many cases, claims for historical restitution involve intergenerational and/or collective claims against governments, corporations and communities, rather than more familiar relationships between individuals. These claims for restitution can also be difficult to reconcile with established models of legal culpability and individual responsibility, because it is not always easy to demonstrate the type of clear causal connection between victim and perpetrator which is conventionally regarded as a precondition for legal restitution. The overall scale and/or extended duration of the abuses involved can also create additional complications, since it can be difficult to know how to navigate the large numbers of individuals and institutions who tend to be implicated in a particular series of events.
These complex and politically contentious issues invite a distinctively interdisciplinary approach. For over a decade now, the increasing prominence of reparations politics has provoked a variety of commentaries from different perspectives, but these works have not always engaged with parallel developments in related fields. In many cases, commentators have also narrowly focused on single cases, or topics, and thereby sometimes overlooked issues and associations that cases of historical injustice share in common. By bringing together a range of experts on different historical periods and from different backgrounds, this special issue provides a unique theoretical and practical foundation from which to analyse and further extend recent efforts to repair the wrongs of the past.
Repairing Historical Wrongs: A New Political and Legal Phenomenon
Campaigns for restitution for the wrongs of the past are a relatively new phenomenon. According to John Torpey, the idea of repairing historical wrongs unexpectedly acquired political and ideological currency during the 1990s in response to the faltering momentum of previous campaigns for racial and gender equality (2006). It is possible to point to several campaigns which pre-date this period, such as West German reparations for the Holocaust during the 1950s and 1960s, but these can best be understood as individual actions, rather than being emblematic of larger trends. Within Torpey’s chronology, the 1990s was defined by a new approach to the past, which resulted in the politicization of a significant number of issues and events that had previously been submerged or conceptualized in quite different ways. While different issues have different profiles, the types of claims which they have generated have tended to display a number of common features when it comes to assumptions, demands and strategies – and indeed in the type of resistance they tend to provoke – which means that they can be usefully classified as examples of a more general approach to questions of historical injustice.
Many of the campaigns which emerged during the 1990s were not confined to individual acts, or self-contained episodes, but instead focused upon larger ‘courses of action’ over extended timeframes. Many of these courses of action, such as transatlantic slavery or colonial exploitation, were integrated into larger patterns of social and economic life, making it difficult to assign sole responsibility to specific individuals or groups. Many of these courses of action also enjoyed high levels of political and social legitimacy at the time and have only come to be regarded as morally problematic more recently. These types of characteristics do not fit comfortably alongside established frameworks for legal redress. A good example of this larger dynamic is the repeated failure of lawsuits brought against the government of the United States for abuses associated with slavery, which have been consistently rejected on procedural grounds. Campaigners have also recently attempted to sue private companies – such as banks, insurance companies, railroads, and tobacco and textiles companies – which profited from slavery, but have once again met with little legal success (Brooks, 2004: 119–132). Alfred Brophy explains some of the reasons why: Some claims are just difficult to fit within a traditional legal framework; slavery reparations are some of those claims. Courts typically deal with claims by well-identified victims against well-identified wrongdoers. Reparations lawsuits are often of a different type, setting a class of victims against a class of descendants of perpetrators, current beneficiaries of past injustice, and others. The lawsuits frequently pose a claim of a group, loosely defined by relations to those enslaved, against the entire society. (2006: 99)
In the absence of a clear-cut legal relationship between a set of identifiable plaintiffs and identifiable defendants, existing laws frequently have little to offer reparations campaigners (Brophy, 2006: 99–117).
Since there are significant obstacles to obtaining an ordinary legal remedy, campaigners have frequently turned to governments to provide what the courts cannot. This orientation is not limited to financial compensation, but also extends to other forms of restitution. With this shift in strategy, we also regularly encounter a mutation in the nature of the arguments put forward, with legal reasoning giving way to more explicitly moral and political reasoning. While this strategy sidesteps the difficulties inherent in legal proceedings, campaigners must still face the challenge of demonstrating why governments ought to undertake or sponsor particular activities. On this front, it is not uncommon for campaigners to turn to therapeutic concepts in order to advance their case for restitution. Rather than constructing philosophically difficult arguments in an effort to overcome the ‘commonsense’ objection that people today cannot be held legally or morally responsible for actions committed in the past, they instead turn to the psychological fact that many people continue to feel a sense of shame – or ‘moral taint’ – arising from the problematic conduct of others with whom they are identified (Posner and Vermeule, 2003: 709–711). From this vantage point, reparations emerges as a means of relieving shameful feelings and restoring a sense of collective pride. Similarly, campaigners also argue that people today are often traumatized by historical injustices committed against their ancestors. Both of these variants are predicated upon the idea that burdens and obligations can be transferred from one generation to the next.
The Question of Inheritance
In order to evaluate efforts to repair the wrongs of the past, we need to reflect upon the practical and ethical dimensions of inheritance. In its most familiar form, inheritance involves the transfer of an individual’s rights, obligations and possessions following their death or incapacitation. Through this transfer, an individual becomes responsible for something that previously belonged to another. Inheritance has both practical applications (i.e. what exactly can be transferred, and on what terms) and normative foundations (i.e. on what grounds can transfer be ethically justified). Efforts to repair historical wrongs frequently boil down to the ethics and mechanics of inheritance. This has both institutional and individual applications. At an institutional level, the main point at issue is whether or not a political regime can inherit liability for wrongs committed by a previous regime. In practice, this question tends to be complicated by various kinds of political and legal rupture, which often involve one regime being replaced by another of a different type (see Teitel, 2000; de Greiff, 2006). The most familiar examples here are post-Apartheid South Africa and post-Communist Eastern Europe, but the question of inheritance also extends to other less obvious cases, such as France, which has been governed by five different ‘republics’ and a number of imperial rulers since the late 18th century. New political regimes routinely inherit a variety of obligations from their predecessors, such as international treaties and financial obligations, but things tend to be less straightforward when it comes to historical wrongs. While new regimes can inherit responsibility for rectifying past injustices, they may not necessarily be culpable for these injustices in the first place.
At an individual level, inheritance most commonly takes the form of transfers between generations. Significantly, inheritance between individuals is not confined to financial assets and obligations, but extends to various social roles, such as the transfer of personal titles, political offices, or family obligations (such as raising children in the event of the death of a family member). Framed in sociological terms, inheritance can also be further used to describe the transfer of language, religion, and other cultural affiliations. When it comes to historical wrongs, inheritance between individuals takes two main forms. On the one hand, we have modern individuals who have inherited various assets and attributes that were originally acquired through acts of historical injustice. On the other hand, we have modern individuals whose ancestors were on the receiving end of various acts of injustice, and therefore have a quite different connection to the past. Individual inheritance is comparatively straightforward when those involved are only one generation removed from a specific act of injustice, such as when children inherit property stolen by their parents, but things tend to become very complicated once multiple generations and multiple acts of injustice enter into the equation. A good example of these historical vagaries is the conquest of the Americas by European settlers. This conquest was defined by death, destruction and dispossession on a cataclysmic scale, but it can be very difficult to demonstrate a straightforward connection between historical events and various individuals who are alive today because of the long time horizons and complex trajectories involved (see Keal, 2003; Lenzerini, 2008).
The most common way of addressing these conceptual and historical difficulties has been to move the focus away from individuals and towards broader social and political formations, such as First Peoples and European settlers, or European settlers and African Americans. Framed in these terms, serious acts of injustice committed by one group of people against another group of people can be imperfectly aggregated into a collective inheritance that transfers assets and obligations to the modern representatives of the peoples in question. These intergenerational transfers are also usually understood to incorporate continuing legacies of prior injustices, such as contemporary manifestations of social and economic privilege, inequality, discrimination, and/or deprivation. One of the main advantages of this approach is that it offers a way of simplifying the historical record, but it also raises difficult questions about how group membership is defined (Kukathas, 2003).
Social and political membership rarely involves fixed, clear-cut categories, but instead emerges from complex processes of collective identification and differentiation. This is not a topic which we can address in any depth here. For our purposes, it is sufficient to (re)emphasize that (i) there tend to be important variations within particular groups, and (ii) individuals invariably have multiple allegiances and identities, which tend to become more or less important depending on context. While specific individuals may primarily identify themselves according to their place of origin or political affiliation at a national level, these referents tend to be at least partially subsumed by larger groupings based upon citizenship, nationality or ‘civilization’ at an international level (see Neumann, 1999; Benhabib et al., 2007). While European settlers systemically abused both African Americans and First Peoples for centuries, many of these settlers were also exploited – albeit not in the same way – as members of a downtrodden working class, with generations of labourers toiling under hazardous conditions for marginal wages. Another key example here concerns the role of global migration. Since large numbers of European settlers in the Americas arrived following the Second World War, do they also inherit responsibility for injustices that predate their arrival? Since group membership can sometimes be difficult to define, discussion of repairing historical wrongs has tended to gravitate towards enduring political institutions, which are held to be responsible for implementing/facilitating serious abuses that can be traced to dominant social formations. While this focus upon the state is not without problems, it nonetheless captures a fundamental point: shouldn’t governments step into the breach when intergenerational inheritance can be difficult to corroborate, yet there is no question that serious acts of injustice have been committed in the past?
Inheritance cannot be an open-ended and indefinite process. It has to stop somewhere. Serious problems begin to arise, however, when questions of inheritance are framed in selective and self-serving terms. While modern individuals and institutions rarely express major qualms about inheriting desirable or advantageous attributes such as wealth or prestige, they tend to favour a sharp separation between past and present when it comes to serious abuses committed by previous generations and/or political regimes. A good example of this dynamic comes from countries such as Australia and the United States, where modern individuals regularly take pride in the achievements of pioneering European settlers and soldiers, while downplaying or disregarding their genocidal activities towards First Peoples. In its most basic form, this selective approach to history involves positive achievements being treated as collective goods, which current generations can both take pride in and profit from, while concurrent acts of injustice are reduced to individual acts, for which modern individuals and institutions are in no way responsible. Efforts to repair historical wrongs cannot proceed very far unless this popular yet problematic model is successfully challenged. Whenever someone seeks to ‘claim the advantages created by previous generations [they] must also accept a responsibility to offer redress for the injustices they inflicted’ (Miller, 2007: 156).
It is not always clear, however, what ‘accepting responsibility’ ultimately means in practice. At this juncture, three additional questions enter into the equation: (i) what types of remedies and duties arise as a consequence of individual and institutional inheritance? (ii) to whom are these obligations owed? and (iii) what happens when ethical ideals and practical calculations end up pulling in different directions? There are a fairly small number of cases, such as the return of stolen possessions to the direct descendants, where the question of potential remedies is comparatively straightforward. In most cases, however, historical wrongs have no obvious or easy solution. This is partially because of the sheer volume of victims involved, which regularly number in the hundreds of thousands, or even millions, and partially because of the types of terrible atrocities involved, which regularly involve cases of death, destruction, cultural annihilation, and many different examples of physical, sexual and psychological abuse. In such circumstances, any remedy could be plausibly dismissed as grossly inadequate. Since it is not realistic to restore things to their previous condition, discussion of remedies frequently boils down to the twin themes of financial compensation – such as cash payments and development assistance – and collective atonement – such as national monuments and formal apologies. While criminal prosecutions remain part of this larger conversation, they only tend to apply in a small number of cases, and even then they usually represent one aspect of a larger whole. These remedies are further explored in the following section.
Any potential remedy must also have an identifiable recipient, or recipients. Once again, this issue tends to be subject to a number of permutations and complications. In some cases, such as the annihilation of Tasmanian Aborigines or Carib islanders, only a handful of individuals have survived to the present day. If there were no living representatives of a previously wronged population, would this end any obligation today? If a substantial population has survived, are there still legitimate grounds for differentiating between immediate victims and their eventual descendants? In other cases, such as transatlantic slavery or the human devastation of the Congo Free State, the various protagonists involved are divided among different jurisdictions. What happens when historical wrongs involve victims and/or perpetrators from multiple countries and communities, such as the partition of India or Pakistan (D’Costa, 2010)? Can post-colonial states, such as the fragile and corrupt governments of Haiti or the Democratic Republic of the Congo, be regarded as the legitimate recipients of efforts to repair wrongs committed within their territories in previous centuries? This challenging relationship between remedies and recipients also has broader ramifications. As we shall see below, efforts to repair historical wrongs also tend to involve a further commitment to improving relationships between individuals, groups and institutions, along with a concurrent commitment to prevent future acts of injustice. Here, as elsewhere, we encounter many instances where political calculations have ended up compromising and/or complicating ethical aspirations.
Modes of Reparation
In his contribution to the symposium which paved the way for this special issue, Daniel Butt suggested that while historic injustice will never be fully rectified, justice requires us to move as close to rectification as is practically possible. If this is accepted, it raises the question of how we should move towards rectification. As Duncan Ivison (2006: 509) notes, there are different modes of reparation and each can take various practical forms. Although in practice different modes of reparation may be combined, it is important to distinguish them, especially since each has its own characteristic strengths and weaknesses and meets with different constraints. To this end, it is possible to identify three broad modes of repairing injustice: financial compensation, apologies and holistic approaches. Each of these modes constitutes a different – and to some extent competing – way of thinking about how to approach historical injustice. While criminal prosecutions are also sometimes relevant here, this is not an issue which we can address in any depth in this forum.
Financial Compensation
Repairing historical wrongs is most commonly understood to involve offering various forms of financial compensation. One of the advantages of payments as a mode of reparation is that there is a tangible and immediate benefit for the recipients involved. Although monetary compensation may make only a small contribution to the repair of the damage and suffering incurred by victims, it is nonetheless a contribution which can help to improve the lives of individual recipients. Another potential advantage of compensation is that it holds out the prospect of ‘closing’ or ‘settling’ an outstanding problem (Walker, 2006: 377). Much like a conventional tort case, the dispute ostensibly ends if and when the claimant successfully obtains compensation from an individual who has inflicted harm upon them. Claims for compensation have often aroused fierce opposition, since they potentially involve significant transfers of wealth. As we have already indicated, one the most significant obstacles here is formulating a compelling political argument that a moral obligation to make such payments exists, especially in relation to intergenerational claims. Compensation schemes are also susceptible to challenge from ‘would-be beneficiaries’ – that is, people who are not included among the beneficiaries but claim that they ought to be (Posner and Vermeule, 2003: 721–723).
Most recent commentators have tended to concentrate upon the political prospects and practical challenges associated with financial compensation. Since many claims for compensation have been unsuccessful, the deeper question of whether they actually constitute an effective means of redress has often been neglected. On this front, it is worth emphasizing that a number of recent compensation schemes have been rejected by survivors on the grounds that they constitute an inadequate and inappropriate response (see Moon, this issue; Suzuki, this issue). This indicates that there may be occasions where compensation is unwelcome or unhelpful. One of the main points at issue here is whether compensation is consistent with the goal of repairing historical wrongs. In his recent work on reparations for the history of slavery in the United States, Roy Brooks argues that the major purpose of slave redress should be to produce racial harmony and national reconciliation (2004: 139). For Brooks, achieving this requires ‘a genuine apology for slavery from the main perpetrator, the federal government’ (Brooks, 2004: 138). This does not always mean that that there is no place for financial compensation, but it does mean that it may not be sufficient in and of itself.
Apologies
The relationship between formal apologies and financial compensation tends to be case specific. As the above example makes clear, there are some occasions where compensation has been regarded as an inadequate substitute for a formal apology. Alternatively, there have also been occasions where apologies have been regarded – and derided – as a ‘lesser’ alternative to financial compensation, since they do not necessarily involve any financial burdens or tangible benefits. These different appraisals of the potential value of apology are bound up in questions of individual psychology. In his study of the apology process, psychiatrist Aaron Lazare defines an apology as ‘an encounter between two parties in which one party, the offender, acknowledges responsibility for an offense or grievance and expresses regret or remorse to a second party, the aggrieved’ (2004: 23). For Lazare, making a successful apology – which is a complex accomplishment and not simply a matter of saying sorry – can have the effect of healing damaged relationships.
Framed in these terms, apologies can satisfy important psychological needs of offended parties. In particular, they can restore respect and dignity to people who have been humiliated; they can affirm that the apologizer shares the same values as the offended party; and they can meet the need of an offended party to see the offender atone for past conduct. And, as proponents of restorative justice and scholars of the psychology of forgiveness might add, once these psychological needs are met, offended parties can find it easier to relinquish attitudes of resentment (Gehm, 2003). Ideally, successful apologies can trigger a process of forgiveness and reconciliation, which is beneficial not only for those who apologize, but also for those who accept the apology, whose psychological needs are met and who are released from ultimately debilitating feelings of anger and desires for revenge.
Of course, what such studies point to is potential. Whether and to what extent a particular act of apology fulfils such potential requires empirical investigation. A successful apology not only requires genuine atonement for a past wrong (i.e. the offence is fully recognized, publicized, and repented), it also requires the aggrieved party to accept the apology. These conditions can be difficult to meet. Although giving an apology costs nothing financially, it can be a risky undertaking. Some governments may be reluctant to apologize because they fear the legal and political repercussions of admitting responsibility for past wrongdoing. If we delve deeper, however, an apology can also appear as a risky undertaking because it places the apologizer in a vulnerable and exposed position. A genuine apology can be difficult to withdraw or renounce, which raises the question, for the apologizer, of where they stand if their apology is rejected. Their status has been lowered (they have admitted to moral taint) without deriving any potential benefit of reducing the anger and resentment directed towards them. A typical way of seeking to manage this vulnerability is to ‘half-apologize’ – that is, to make a gesture of apology but to undermine it in some way. This can involve failing to acknowledge the full extent of the offence, using passive language, raising questions about whether the conduct was really harmful, using empathetic rather than apologetic language, or even apologizing to the wrong party (Lazare, 2004: 85–105). Many apologies have been offered in recent times, but a significant number of these apologies have been qualified in ways that raise questions about their sincerity. That being said, even a genuine apology may not always be welcomed.
Holistic approaches
Apologies are predicated upon a particular conception of the overarching goals behind restitution. If the social process of apology is utilized successfully, it can meet a range of psychological needs brought into being by a wrongful act or course of action and, in doing so, enable various protagonists to move towards reconciliation and greater social harmony. Once rectification is framed in terms of healing and reconciliation, an apology can ultimately be regarded as one step in a larger process of social transformation. Reparation requires not a brief recalling of the offence, but the creation and dissemination of a ‘thick description’ which offers the full picture of the historical injustices in question. This points towards the creation and funding of processes such as history projects, educational programmes, museums, memorials, or dramatic performances (Walker, 2006: 389). Since non-specialists often have a limited and/or inaccurate understanding of the specific issues at stake, historical (re-)education has tended to be a major component of many campaigns for repairing historical wrongs. Education campaigns often place particular emphasis on reaching children, building upon the idea of planting seeds that will slowly reshape society as children grow into adults. Since popular opposition to repairing historical wrongs frequently stems from distorted histories, then perhaps the introduction of alternative narratives can gradually pave the way for new forms of social understanding, justice and repair (see Oldfield, this issue).
These projects are not simply about healing victims of historical injustice. They also have the further potential to heal deeply damaged relationships. At least part of the message of restorative justice, an idea which underpins many of these initiatives, is that if representatives of offenders and offended parties can somehow work together, to create an appropriate way of remembering and recounting what happened, they will gradually become humanized to each other. In the very process of collaborating to repair an historical injustice, the participants themselves may be transformed from embittered foes into colleagues working together to overcome a shared traumatic past. At the heart of this long-term aspiration is a new way of representing and remembering injustices. While this may sound good in theory, there are once again many complications in practice, especially when it comes to the challenge of reconciling very different – and highly politicized – understandings of ‘history’.
Historical Narratives and Political Arguments
In his recent work, The Landscape of History, John Lewis Gaddis observes the following: The past … is something we can never have. For by the time we’ve become aware of what has happened it’s already inaccessible to us; we cannot relive, retrieve or rerun it … We can only represent it. We can portray the past as a near or distant landscape … We can perceive shapes through the fog and mist, we can speculate as to their significance, and sometimes we can even agree among ourselves as to what these are. Barring the invention of a time machine, though, we can never go back there to see for sure. (2004: 3, emphasis in original)
It has long been known that historical interpretation is an inexact science at best. Many issues could potentially be raised here, but in this forum we are chiefly concerned with (i) the political dynamics surrounding the selection and representation of events that become ‘historical wrongs’, rather than falling by the wayside, and (ii) the key relationship between historical representation and political argumentation. Unlike most professional historians who tend to view historical inquiry as an end in itself, most efforts to repair historical wrongs are founded upon a distinctive form of historical representation, which involves the retroactive projection of contemporary categories and concerns backwards onto the past in order to develop a political argument for repair in the present.
Most acts of historical injustice do not generate political campaigns for reparations. In most cases, this is primarily a function of the passage of time. Many acts of historical injustice, such as numerous abuses inflicted by Mongol invaders, are now sufficiently removed from the present that they no longer have any political resonance. This tends to happen at different rates for different issues. Some campaigns for restitution, such as transatlantic slavery or the plight of First Peoples, reach as far back as the 16th century. Other grievous historical wrongs, such as the millions who died in Soviet Gulags, are of more recent origin but have not (yet) generated campaigns for restitution (Applebaum, 2003). Since the historical landscape tends to be subject to continual reinterpretation, it is likely that some acts of historical injustice that currently have limited political traction will emerge as more significant issues in the future. A good example of this dynamic is the widespread use of sexual slavery by the Japanese armed forces, which only emerged as a significant political issue during the 1990s, over four decades after the event (see Suzuki, this issue).
At this juncture, it becomes necessary to somewhat loosely distinguish between popular recognition and political mobilization. Popular recognition refers to the level of public awareness of a given issue, while political mobilization refers to the level of political organization and activism associated with a given issue. Historical wrongs can sometimes be defined by high levels of recognition and low levels of mobilization, where there is a significant level of awareness that historical wrongs have taken place, but this recognition has not (yet) translated into a sustained political campaign, organizational infrastructure, or a set of clearly defined goals. A good example here is the history of European colonialism, which is widely recognized as a grievous historical wrong in many parts of the globe, but in many cases and countries this popular sentiment has not yet translated into significant levels of political mobilization (Howard-Hassmann, 2008: esp. 42–59).
Political mobilization invariably requires historical (re)interpretation and simplification. Campaigners need to determine what historical issues they should prioritize, who they should seek restitution from, and what types of remedies they should pursue. As part of this cumulative process, political campaigners regularly concentrate their energies upon a specific set of practices or policies which are held to exemplify the worst aspects of larger – and more complex – patterns of behaviour. While European settlement in Australia resulted in numerous abuses over multiple centuries towards Australian Aborigines and Torres Straight Islanders, recent campaigns have tended to prioritize the treatment of the ‘stolen generations’ who were forcibly separated from their families as children (see Thompson, this issue). A comparable dynamic has also been widely reported in relation to the operations of a number of Truth and Reconciliation Commissions, where the selection and representation of specific acts of injustice has tended to be heavily influenced by politically motivated efforts to produce definitive historical narratives, or ‘truths’ (Chapman and Ball, 2001; Wilson, 2011). Whenever governments respond to calls for repairing the wrongs of the past, questions of justice and repair invariably compete with a variety of institutional and political pressures, which constrain and channel responses in selective and self-serving ways.
Competing narratives have been a defining feature of political debates over the past. Unsurprisingly, both advocates and opponents tend to deploy very different interpretations to help justify their competing agendas. Take, for example, the differing historical interpretations which have long surrounded the causes, characteristics, and consequences of slavery, the Civil War, and Reconstruction in the United States. For over a century now, various apologists have been insisting that slavery was ‘benign’, that the Civil War was a question of ‘states’ rights’, and that Reconstruction was defined by unjust northern intrusions. One of the most problematic features of these narratives has been the iconography and mythology of the ‘faithful slave’, which emerged as ‘a cornerstone of paternalistic defences of slavery’ and persisted long after legal abolition in 1865 (McElya, 2007: 7; see also Horton and Horton, 2006). These types of historical narratives tend to be particularly resistant to change because they are deeply rooted in models of identity and community. Instead of being tested in the courts, where standards of evidence and judicial proceedings could be expected to result in a decision one way or the other, competing narratives instead tend to play out in the court of public opinion, where there is frequently a strong bias in favour of narratives that end up minimizing or sanitizing wrongs committed by dominant groups.
Popular resistance to alternative historical narratives has proved to be a key stumbling block in many campaigns for restitution. In this hostile political environment, it becomes necessary to ask whether arguments based upon historical wrongs represent the most effective way of advancing the underlying political agendas involved. In order to address this question, we need to consider the relationship between campaigns for repairing historical wrongs and other forms of human rights activism and political argument. This relationship between reparations and other related campaigns has tended to be assumed rather than explained. Much of the recent literature starts with the premise that reparations campaigns are morally and politically enlightened and progressive, and thereby mark a logical extension of prior campaigns for justice and equality (see Kurasawa, 2007: 57). Accordingly, resistance to reparations tends to be chiefly explained in terms of legal conservatism, self-interest, ignorance, and political and moral backwardness. This does not, however, exhaust the range of potential considerations at stake here. On this front, the main point at issue is the underlying connection between ethical reasoning and political efficacy (Reus-Smit, 2008: 65–70). Perhaps time and energy that has recently been expended on the cause of repairing historical wrongs is ultimately time and energy that could have been more usefully expended on other human rights issues, or on using other approaches or languages.
To help briefly make sense of the politics at work here, we turn to Clifford Bob’s recent book on The Marketing of Rebellion (2005), which maintains that (potential) campaigners tend to be in fierce competition with other (potential) causes in order to attract political audiences and resources. This underlying competition means that ‘there is room for only a few challengers on any issue. Tacitly and at times openly, needy groups vie with one another for the world’s sympathy, elevating themselves above their competitors and differentiating themselves from similar causes’ (Bob, 2005: 8). This line of argument suggests that there is a strong likelihood that the recent upsurge of claims for historical restitution has attracted energies and resources that might have gone to other causes. If some claims for historical restitution are likely to have limited political prospects, then perhaps other forms of political argument might be more successful in achieving comparable or equivalent goals? An excellent example of this line of argument has been developed by Rhoda Howard-Hassmann in her work on Reparations to Africa, where she concludes that ‘it is more realistic to promote Africans’ economic human rights through institutional, political, legal and economic reform than to urge either world redistribution of wealth or financial compensation to Africa for past injuries’ (2008: 178; see also Torpey, 2006: 128–132). There are many strands to this overall argument, but the basic idea here is that the immediate needs of millions of Africans who are suffering today deserve to be prioritized, and that relevant campaigners are likely to be more effective when they deploy arguments framed in terms of human rights and distributive justice rather than focusing upon the wrongs of the past. This position is not necessarily generalizable, since different issues have different political profiles, but it does underline some of the political pitfalls associated with the idea of repairing historical wrongs (see Waldorf, this issue). Here, as elsewhere, it becomes necessary to find a way of combining both ethical ideals and practical calculations.
Introducing the Papers
The preceding snapshot aims to both introduce and interrogate some of the main conceptual, practical and political questions arising from efforts to repair historical wrongs. The papers which follow explore these and a range of further issues. In keeping with the interdisciplinary nature of this field, they tackle a range of historical cases from a variety of disciplinary perspectives, including law, sociology, politics, philosophy, moral theory and history. In order to surmount the traditional barriers between such disciplines, the contributors to this special issue were first brought together in a two-day symposium to discuss earlier drafts of their papers. The versions published here have benefited from the discussion and debate which took place at the symposium and from subsequent reflection. It is not our intention to promote a singular perspective or core line of argument. Instead, the primary goal is to offer a deeper and broader conception of some of the key issues at stake, especially in relation to issues which involve intergenerational and institutional inheritance.
In the first paper, transitional justice scholar Lars Waldorf discusses the impact which concerns for repairing historical wrongs have had upon that field. The conventional ambition of transitional justice – dealing with the immediate aftermath of the fall of repressive regimes and/or the end of conflicts – has been challenged in recent years as being too limited. Critics suggest that transitional justice should seek to rectify the effects of human rights breaches that stem from deeply rooted socio-economic wrongs. Several scholars and practitioners in the field have responded positively to more expansive conception of transitional justice, but Waldorf is critical of this shift, since transitional justice is already over-stretched and under-resourced. The main line of argument here is not that socio-economic problems are unimportant, but instead that they do not fit comfortably within a transitional justice framework, and therefore should be kept distinct from the more restricted goals of transitional justice.
Debates over the pros and cons of repairing historical wrongs tends to revolve around the assumption that state reparation benefits victims. This conventional wisdom is questioned by Claire Moon. Focusing on the refusal of the Madres de Plaza de Mayo to accept reparation for the ‘disappearance’ of their children during the ‘Dirty War’ conducted by Argentina’s military junta between 1976 and 1983, Moon suggests that reparations can operate as a means of social control, placating victims and regulating the meaning of crimes of the past. Whilst, in our therapeutic culture, ‘healing’ and ‘closure’ are usually regarded as obvious goals to pursue in the aftermath of ‘trauma’, Moon presents a powerful account of the struggle of the Madres to keep the wounds of the past open and to refuse any temptation to consign atrocities to historical memory. In his assessment of the Women’s International War Crimes Tribunal on Japanese Military Sexual Slavery, on the other hand, Shogo Suzuki is concerned to highlight the possibility of creating processes in civil society that can bring healing and closure to victims where the state has resisted demands for reparatory action, such as an apology. Following the Japanese government’s failure even to acknowledge adequately the wrongs done to so-called ‘comfort women’ – and relative indifference to this wrong in other processes established to deal with Japanese war crimes – the Tribunal was initiated by human rights organizations. Its activities included symbolic prosecution of those deemed responsible for sexual slavery, including Emperor Hirohito. Suzuki shows that, despite its many limitations, the Tribunal arguably has helped create a new historical consciousness concerning the atrocious treatment of ‘comfort women’, many of whom are still alive and still suffer trauma and stigmatization.
The nature and functions of political apologies are examined more directly by the moral and political philosopher Janna Thompson. What Thompson focuses upon here is the now familiar process of national leaders apologizing, on behalf of the nation, for historical events that occurred generations ago. Such apologies are often criticized as meaningless and inappropriate. In seeking to construct a philosophical defence of political apology, Thompson points to what seems to have been a successful example: the apology by Kevin Rudd, when Prime Minister of Australia, to Aboriginal victims of the child removal policies of earlier governments. Such apologies, she suggests, need to be judged by different criteria than we use to assess a personal apology. By conceptualizing political leaders as representatives of an intergenerational polity, it becomes easier to see the language of apology as logical and appropriate. The next paper, by Daniel Butt, shifts the focus of discussion from ‘domestic cases’ back to cases where perpetrators and victims of historical wrongdoing were members of different states. However, where Suzuki focuses on quite specific Japanese war crimes, Butt looks at a huge and complex phenomenon: the wrongful actions of colonial powers. His core question concerns the relevance of such wrongs for contemporary thinking about what former colonial powers owe to peoples they have wronged. In taking on this question, Butt links the matter of corrective justice to discussions of international distributive justice. Whilst demonstrating the complexities involved in moving from the harms and exploitations of colonialism to present-day obligations to redistribute resources, he concludes that such rectificatory obligations do exist, even though the questions of how those obligations might be met again presents enormous conceptual and practical challenges.
The final paper, by historian John Oldfield, is a study of what we referred to earlier as ‘holistic reparation’. In the context of public history initiatives, which formed part of the 2007 bicentenary commemorations of the abolition of the British transatlantic slave trade, Oldfield examines the extent to which education can be used to repair historical injustice. He shows that, in the lead-up to the bicentenary, Britons were faced with a range of complex and indeed awkward questions concerning who and what should be remembered, and in what way. Oldfield goes on to look at how those issues were addressed, focusing in particular upon the Heritage Lottery Fund’s support of hundreds of projects. While there are grounds for cynicism about much of what happened in 2007 at an official level, Oldfield argues that these non-governmental projects largely succeeded in advancing a different agenda – one which dramatically reshaped the ways in which transatlantic slavery has been represented and remembered.