Social & Legal Studies

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.

Even as transitional justice struggles to deliver on its original promises of truth, justice and reconciliation, more demands are being placed on it. Over the past several years, the transitional justice ‘industry’ has embraced holistic approaches that have it doing ever more. This article critically examines transitional justice’s recent attention towards historically constructed socio-economic inequalities. It begins by looking at the shift in transitional justice discourse and practice with respect to economic and social rights. Next, it discusses the arguments made for transitional justice’s engagement with those rights and looks at efforts by truth commissions and administrative reparations programmes to address them. Finally, it argues that transitional justice should avoid directly addressing past socio-economic wrongs and explores some alternate paths.

Contemporary debate about compensation for past wrongs turns on the assumption that state reparation benefits the victims of atrocity by acknowledging harm and ameliorating victim suffering. Indeed, much recent theoretical and practical work has concurred to establish reparation to victims of state crimes as a cornerstone of human rights. However, this article argues that reparation can also function to placate victim demands for criminal justice and to regulate the range of political and historical meanings with which the crimes of the past are endowed. This is most evident in transitional political contexts in which gestures of reparation are usually concomitant with the inauguration of new political orders, and formal investigations of past atrocity are conditioned by the balancing of the political demands of new and old regimes. This article argues that in such contexts, state reparation can work to control social suffering with the consequence that it sometimes intensifies rather than alleviates it. To evidence this claim, the article investigates the refusal of reparations by the victims towards whom it is addressed, with reference to Argentina’s Madres de Plaza de Mayo. This analysis of their refusal demonstrates how victim groups make important challenges to some of the core assumptions in the field, reveals internal inconsistencies within the analytical architecture of the scholarly and professional discourse, and indicates the ways in which reparations carry political, and not just palliative, significance.

This article investigates whether or not reconciliation for historical wrongs can be realized in the absence of a state apology. States have traditionally been notoriously reluctant to apologize for their past crimes, and this has often meant that victims are unable to attain closure while they are still alive. What, then, are the alternatives? This article examines the case of the Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery, which was held in 2000. The Tribunal was organized primarily by non-governmental organizations: its judgements were neither legally binding, nor was the Tribunal capable of issuing a ‘sincere’ apology that was the equivalent of a state apology. Nevertheless, this article makes the case that faced with the fact that the Japanese state has not always been forthcoming in acknowledging and taking legal responsibility for its past wrongs, such private, non-state attempts may constitute the best chance for us to accord some victims of war crimes some sense of closure for their past suffering.

Making apologies is one of the ways that governments have attempted to deal with past injustices. However, political apologies are often criticised for being meaningless or morally suspect. I will argue that an apology signals the commitment of those who make it, sponsor it and support it to a national undertaking, and whether we can regard an apology as meaningful depends on our reasons for thinking that this undertaking has been initiated and will continue. To defend political apologies from moral criticisms it is necessary to address questions about responsibility: whether citizens can and should take responsibility for past injustices, including injustices of the historical past. The answer to these questions, I will argue, requires an account of the responsibilities entailed in being a citizen of an intergenerational polity.

This article addresses the claim that some contemporary states may possess obligations to pay reparations as a result of the lasting effects of colonialism. Claims about the harms and benefits caused by colonialism must make some kind of comparison between the world as it currently is, and a counterfactual state where the injustice which characterized so much of the historic interaction between colonizers and the colonized did not occur. Rather than imagining a world where there was no interaction between such communities, this article maintains that the appropriate counterfactual state is one whereby relations between different communities took place in a context characterized by an absence of domination and exploitation. The conclusion is that there are good reasons to go beyond a focus on symbolic reparations and hold that many affluent contemporary states possess extensive but unfulfilled duties of rectificatory justice to some of the world’s poorest peoples.

On both sides of the Atlantic, states have tended to react nervously to reparative claims for slavery, just as they have tended to be wary of making apologies of any kind. In the absence of more radical gestures, public history has taken on an added significance, not least as a way of providing some kind of recompense for past suffering. But to what extent can public history be used to repair historical wrongs? This essay sets out to explore this question, taking as its point of departure the bicentenary of the abolition of the British slave trade (2007). In particular, it focuses on three inter-related areas of activity: heritage funding, museums and, finally, monuments and memorials. The 2007 commemorations generated a wide range of public history initiatives, from small-scale exhibitions, plays, workshops and installations to larger capital projects that in different ways, and with different degrees of success, reshaped representations of British transatlantic slavery and, in doing so, invited Britons to look again at the paradoxes embedded in national histories that first enslaved and then liberated persons of African descent.