HISTORIC INJUSTICE AND THE NON-IDENTITYPROBLEM

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HISTORIC INJUSTICE AND THE NON-IDENTITY PROBLEM

ORI J . HERSTEIN

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Law and Philosophy Springer 2008DOI 10.1007/s10982-008-9025-y__________________________________________________

ORI J. HERSTEIN

HISTORIC INJUSTICE AND THE NON-IDENTITYPROBLEM: THE LIMITATIONS

OF THE SUBSEQUENT-WRONG SOLUTIONAND TOWARDS A NEW SOLUTION

(Forthcoming inLaw and Philosophy,

accepted 04 March 2008)

I. INTRODUCTION

This essay contributes to the literature trying to overcome thefollowing type of argument: some claim that slavery did notharm the descendants of slaves1 because, had slavery nevertaken place, those particular individuals living today wouldnever have been born. Seeing that clearly most livingdescendants of slaves have a life that is worth living, they are

better off living with the legacy of slavery than never havingbeen born at all. Hence, not only has slavery not harmed thedescendants of slaves, they may have even benefitted from it.

This form of argument is called the non-identity argumentand gives rise to the non-identity problem.2 It rejects the

JSD candidate, Columbia Law School. This article was written while anAssociate-in-Law at Columbia Law School. For their comments I amgrateful to Keren Azulay, Robert A. Ferguson, Kent Greenawalt, Alon Harel,Miguel Herstein, Uri D. Leibowitz, Joseph Raz and the commentators forLaw and Philosophy. Special thanks to Anna Finkelstern.

The original publication is available at:

http://www.springerlink.com/content/4431gj03k8025238/(please quote from original).1 Stephen, Kershnar.,J ustice for the Past (Albany: State University of New

York Press, 2004), p. 70.2 Among others this problem was prominently put forward by Derek Parfit.See Parfit, Derek., On Doing the Best for Our Children, in M. D. Bayles(ed.), Ethics and Population, (Cambridge, Mass.: Schenkman Pub. Co.,1976), pp. 100-102. Parfit, Derek., Reasons and Persons (Oxford:Clarendon Press, 1987), pp. 351-380.


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moral validity of claims for historic justice that are based onharms suffered by descendants of victims of historic wrongs andby others born after the original injustice took place. Accordingto this line of reasoning, because descendants are never harmed

by historic wrongs their claims for rectification of historicinjustice have no moral leg to stand on and therefore must berejected.3

I find such arguments against claims for historic justicehighly unintuitive. The harms currently living people claimthey suffer as a consequence of, or in relation to, historicwrongs seem real. For example, many believe that the legacyand effects of slavery and Jim Crow still harm many individualsin the U.S. today.4 Nevertheless, the non-identity argumentmakes it difficult to account for these harms.

Here I explore, build on and criticize one solution to theproblem the non-identity argument poses to claims for historicjustice. From my criticisms it follows that a new approach tothe problem based on group membership is warranted. Iwill first explain what sort of claims for historic justice I havein mind here. I will continue with introducing the non-identityargument and demonstrate how historic-justice claims arevulnerable to it. After that I will present and argue for asolution recently put forward by George Sher,5 which I call thesubsequent-wrong solution. This solution demonstrates thateven if currently living individuals cannot be harmed byhistoric wrongs, they can base their claims for rectification onharms they suffer due to wrongful acts and state of affairs thatare related to the historic wrong but take place in the present.According to this approach these current acts and state ofaffairs are wrong because they derive from the failure toprovide rectification to members of the previous generation forwrongful harm they suffer. So too were the members of the

3 For a discussion on how the non-identity problem impinges on claims forhistoric justice see Kershnar (2004, p. 70); Meyer, Lukas H, HistoricalInjustice and the Right of Return,Theoretical Inquiries in Law 5 (2004):305-316. Meyer applies the subsequent-wrong solution to the right of returnof Palestinian refugees; Morris, Christopher W, Existential Limits to the

Rectification of Past Wrongs, American Philosophical Quarterly21 (1984):175-182.4 For examples of discussions of how the legacy of slavery affects AfricanAmericans in the present see: Robinson, Randall.,The Debt: What AmericaOwes Blacks (2000); Brooks, Roy., Atonement and Forgiveness: A NewModel for Black Reparations (Berkeley: University of California Press,2004).5 Sher, George, Transgenerational Compensation, Philosophy and Publicaffairs33 (2005): 181-200, 190-195.


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previous generation owed rectification for the harm theysuffered from the failure to provide rectification to the membersof the generation that came before them. In this chain ofinjustices each failure to provide rectification to members of

one generation is the source of wrongful harm to the nextgeneration. Such chains of injustices form a bridge betweenthe historic wrong and the harm suffered by currently livingindividuals. After elaborating and adding to Shers account ofthis solution, I will discuss its limitations and shortcomings. Ioffer three objections. First, I will argue that there are types ofhistoric injustice cases for which this solution does not justifyrectification. Second, I will demonstrate why the subsequent-wrong approach offers an unintuitive account of harm andrectification in cases of historic injustice. Finally, I will arguethat this solution does not fully account for the role groupmembership plays in historic injustice. I will conclude that thesubsequent-wrong solution offers only a partial answer to thechallenge the non-identity argument poses for historic-justiceclaims. I will close with a rudimentary proposal for asupplementary solution. The plausibility of this new type ofapproach grows out of what I view as the limitations of thesubsequent-wrong solution. This new approach focuses on therole group harm and group membership play in historicinjustice.

II. CLAIMS FOR HISTORIC JUSTICE

Historic injustice is not only an injustice to the victims of theoriginal historic wrong. It is thought to adversely affect someof those living years or generations after the original wrongtook place, constituting a persisting injustice. Often historic-justice claims demand a cessation of the ongoing injustice aswell as compensation for the aggregate harm suffered bymembers of the current generation in addition to compensationfor the harms suffered by members of previous generations as aconsequence of the ongoing injustice.

Here I am only interested in claims for historic justicebased on the wrongful harms suffered by currently livingindividualsas a consequence of historic injustice. Putting asidethe issue of posthumous interests and the possibility ofwronging and affecting the dead,6 the interests of those

6 On posthumous interests see for example Thomas Nagels essay titledDeath. Nagel, Thomas., Mortal Questions (Cambridge University Press,Canto Edition, 1993), pp. 1-10.


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currently alive and the interests of future generations are whatmatter for the moral justification of claims. If so, valid claimsfor historic justice require proving an actual wrongful harm toan actual person who is currently (or will be) alive. In other

words, an historic wrong must harm or wrongsomeone in orderto function as a basis for rectification. Here I assume, ratherthan argue, that this approach to moral patienthood and moralconsiderability is correct. The non-identity argument poses aproblem for person-affecting ethics and thus requires an answerbased on effects on individuals.7 If an historic wrong no longerharms anyone, then while it is a tragic fact about history it is nolonger a basis for claims. Therefore, while historic justiceclaims based on harm to the living are the most morallycompelling, they are also the type of claims susceptible to thenon-identity argument.

III. THE NON-IDENTITY ARGUMENT AND THEPROBLEM IT POSES FOR HISTORIC-JUSTICE CLAIMS

Can an act that is a necessary part of the causal chain leading upto a persons birth (or conception)8 also harm that same person?From the non-identity problem it follows that it usually cannot.There are two ways to categorize past acts and choices inrelation to future people (i.e., people who were or will be bornafter an act or choice was made):91. Identity-preserving choicesor same-people choices and,2. Identity-constituting choicesor different-people choices.10

7 For a discussion on the implication the non-identity problem has forperson-affecting ethics see for example Roberts, Melinda, Can it Ever BeBetter Never to Have Existed At All? Person-Based Consequentialism and aNew Repugnant Conclusion,J ournal of Applied Philosophy20(2) (2003):159-185; Parfit (1987, pp. 351-441, 447).8 For the purposes of this essay I discuss being brought into existence, beingborn and being conceived interchangeably.9 Parfit (1987, pp. 355-356). Parfit discusses three kinds of choices; here Iam only interested in the two mentioned above.10 Differentiating between a different-people choice and a same-peoplechoice depends on ones idea of what constitutes personal identity. If we

adhere to a stringent concept of personal identity, i.e. a persons identity isonly preserved if most of his/her attributes are preserved, then there wouldbe more different-people choices and fewer same-people choices. On theother hand, if our concept of personal identity allowed for more flux andchange in a persons attributes, without constituting a different person, moreof our choices would be regarded as same-people choices. Barringdivorcing the concept of personal identity from a persons attributes andidentifying personal identity with an underlying substance that bears thoseattributes (such as a soul) rather than with the attributes themselves, it seems


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We can affect the identity of future people and many of our actsand choices have this effect. When they do, our acts function asdifferent-people choices or actions had we chosen differentlyhistory would have taken a different course, causing the birth of

other individual people with different parents, DNA, history,memories etc.11According to the non-identity argument, different-people

choices cannot harm the individuals whose existence isdetermined by those very choices: had the choice not beenmade, the individual person at stake would never have beenborn. According to the line of reasoning underlying the non-identity argument, any individual who has a life that is worthliving was not made worse off by the different-people choicesin her past; in fact, seeing that she would otherwise not havebeen born, she may have even benefitted from them.

What makes a certain injustice historic is its temporalcomponent. Simply put, in cases of historic injustice usually arelatively considerable amount of time passed since the originalwrong took place.12 The temporal aspect implicit in cases ofhistoric injustice often spans several generations, allowing theinjustice to determine the birth and identity of futureindividuals. This is especially true for the identity ofdescendants of those directly involved in the original wrong,since it usually affected the course of their lives, including theidentity of their descendants, most of all. Moreover, theoriginal wrongs involved in claims for historic justice areusually of considerable proportion in terms of their magnitudeand the amount of people directly affected, which amplifies theinfluence of the injustices they generated on the subsequentcourse of events.

This gives rise to the non-identity problem in claims forhistoric justice. If the very existence and identity of currently

that most decisions are different-people choices rather same-peoplechoices.11 The multiplicity of different-people choices derives from what Kavkacalls the precariousness of existence. This essentially means thatpractically all events have a growing ripple effect, which determines the

identity of more and more future people as time goes by. See Kavka,Gregory, The Paradox of Future Individuals,Philosophy and Public Affairs11 (1982): 93-112. For a discussion of this phenomenon in the context ofhistoric justice see Morris, Christopher W, Existential Limits to theRectification of Past Wrongs, American Philosophical Quarterly21 (1984):175-182, 176-177.12 While many historic injustices are wrongs of great proportions, here I donot take the term historic to refer to the gravity of the injustice but to thechronology of its origin.


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living people and future people was determined by a pastwrongful act, and if these people have or will have a life that isworth living, it is impossible for this past wrong to harm them.On balance they are better off existing with the effects of the

past and with the historic wrong as a part of the reality of theirlives and of their prenatal history than never having been bornat all. In other words, in such cases there is no basis for anhistoric justice claim.

VI. THE SUBSEQUENT-WRONG SOLUTION

That peoples parents13 and predecessors never receivedrectification for a wrong that was directly perpetrated againstthem can also wrongly harm their children, as well as othermembers of the subsequent generation. The non-identityproblem does not bar people from demanding rectification forharms generated by acts or omissions that occurredafter theywere born (or conceived). From the moment of their birth (orconception), members of the subsequent generation can demandrectification based on wrongful harms they suffered asindividuals due to others failure to respect their parents rightto rectification. Never rectifying a wrong perpetrated againstmembers of one generation constitutes an injustice that cangenerate new wrongful harms to members of the youngergeneration. In turn, the failure to rectify these wrongful harmsmay in itself be a wrong that may generate further wrongfulharm to members of the third generation, and so on. This is thecore of Shers solution.

By focusing only on harms generated by postnatal eventsthis solution avoids the metaphysical tangle raised by the non-identity argument. From the moment the descendants of theoriginal victims were born (or conceived) their identity was set(to a degree required for making this argument). From thatpoint on the continuedwrong of not rectifying harms done tomembers of the previous generation can generate separatewrongful harms to their descendants.

13

Sher mainly focuses on the relationship between parents and theirchildren. However, the subsequent-wrong solution can also apply to otherforms of transgenerational relationships. Peoples well-being is not onlydependent on their parents well-being. Besides parents there are otherswhose well-being affects the well-being of members of younger generationsand who even have a duty of care towards those individuals. For example,one may suffer wrongful harm from the failure to rectify harm done tomembers of ones extended family, ones community, nation, country orother groups with whom one is closely affiliated.


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A. The Two Models Of Rectification And The Non-Identity

Argument

Claims for historic justice are claims for rectification. In hisaccount of the subsequent-wrong solution George Sher focusesonly on compensation. However, there are two models ofrectification the counterfactual model, which denotescompensation, and the restorative model denoting restitution.14Claims for historic justice are often based on both models. Inthis respect Shers account of the subsequent-wrong solution isincomplete.

The motivation underlying the counterfactual approach torectification is to roll back the wheels of time. We wish tomake the world as close to what it would have been had thehistoric wrong not taken place. This requires imagining howevents would have unfolded in that eventuality. Throughrectification we then try to make the actual world as much likethat counterfactual world in which the wrong never tookplace.15 This model underpins the legal concept ofcompensation.

When made in the context of claims for historic justice,

claims for compensation are vulnerable to the non-identityproblem. Seeing that in historic justice cases currently livingpeople would never have been born had the historic wrong nottaken place, as long as one has a life worth living one is neverharmed by historic wrongs and compensation is never owed.

The second model of rectification is of restitution. Thismodel focuses on ending present wrongs, not on compensatingfor the harms caused by past wrongs. Under the restorativeapproach to rectification one focuses on an ongoing wrong.Restorative justice is achieved when rectification puts an end tothe injustice. If the counterfactual approach seeks to rectify

14 Waldron, J eremy., Historic Injustice: Its Remembrance andSupercession, in G. Oddie and W. Perrett (eds.),J ustice, Ethics, and NewZealand Society, (Auckland: Oxford University Press, 1992), pp. 139-170,144-159.15 This is the approach towards rectification of injustice in holdings taken byNozick, Robert.,Anarchy, State and Utopia(New York: Basic Books, 1974),pp. 57, 152-153.


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past damages, the restorative model is designed to preventfuture harms and end current wrongs.

The restorative model to rectification is not vulnerable tothe non-identity problem. It does not depend on proving that an

event in ones prenatal past harmed one but rather ondemonstrating that a current event is currently wronging orharming one or is predicted to do so. For example, if AfricanAmericans can point to wrongful acts (such as institutionalizeddiscrimination) that are currently taking place in the U.S., theycan demand ending these wrongs without justifying their claimbased on proving that this harm is part of the harmful effectsslavery has on them today. Current injustices are not historic orpast, they take place now. The wrongs that generate suchinjustices do not function as identity-determining acts in thecase of those currently making the claim for rectification.Because of this, it can serve as a basis for arguing around thenon-identity problem and justifying the restitution peopledemand in claims for historic justice. This approach obviouslydepends on somehow connecting the current wrong to thehistoric wrong; otherwise this will hardly be an alternativeaccount for justifying the rectification involved in historic-justice claims. This connection is established through thetransgenerational chain of injustices upon which thesubsequent-wrong solution is predicated.

Historic justice usually requires both restitution andcompensation. Under the subsequent-wrong approach a wrongwarranting restitution also serves as the basis for a claim forcompensation. As long as a wrong goes unaddressed it maygenerate further harms. The aggregate harm one suffersduringones life from an unrectified wrong is not susceptible to thenon-identity argument, since it does not directly derive from anidentity-determining prenatal event such as an historic wrong.Hence, identifying a persons right to restitution derived froman ongoing wrong can set the baseline for determining thecompensation one deserves for harm suffered during ones lifefrom that ongoing wrong. Thus, subsequent-wrong claims canjustify ending the wrong of not rectifying the harm to theprevious generation as well as compensating for the harms thatthat wrong caused to those making the claim.16

16 To clarify, finding a subsequent harm is not in itself an argument for aright to rectification or for a duty to rectify. Under a justice-based approachto rectification and liability, whether someone deserves restitution ordamages and whether someone else has a duty to provide that rectificationdepends on several further considerations beyond proving harm. This is trueboth of legal and moral rights and obligations. On its own, identifying a


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V. THE LIMITATIONS OF THE SUBSEQUENT-WRONGSOLUTION

The appeal of the subsequent-wrong solution is that itcircumvents the non-identity problem and still allows fordemanding the end of persisting injustices as well ascompensation for the harms associated with historic injustice.It purports to provide all the rectification we believe iswarranted by historic injustice, only on other grounds, groundsthat do not depend on recognizing anhistoric injustice.

However, the subsequent-wrong solution is not complete. Itmay secure certain remedies in certain cases for certain people,but its strict focus on current wrongs and its dependency on achain of injustices limits its ability to fully account for historic-justice claims. As Sher concedes, the subsequent-wrongapproach offers a technical solution.17 It is an approach thatdoes not fully account for our intuitions about harm andrectification for historic injustice. In this section I will flesh outwhy this account is unintuitive as well as demonstrate that evenas a technical solution it is imperfect. I will argue that we needan alternative or supplementary solution, which is better in tunewith our intuitions and that can cover those cases thesubsequent-wrong solution cannot.

A. Chains of Injustices And Delayed Harms

The subsequent-wrong solution relies on an uninterruptedchain of injustices or, in other words, a chain of unrectifiedwrongful harms. Gaps in this chain bar the subsequent-wrongapproach from recognizing harm and justifying rectification,even in cases in which we otherwise feel people are harmed and

harm generated by a subsequent event rather than an historic event only

demonstrates that, not withstanding the non-identity problem, certain claimsfor historic justice involve real harm to individuals. Proving harm can be afirst step in proving a right to rectification or generally an obligation torectify. It is certainly not the last step. For the distinction, as well asexamples, of justice-based approaches to compensation and liability (as wellas other conceptions) see: Perry, Stephen R., Tort Law, in D. Patterson(ed.), A Companion to Philosophy of Law and Legal Theory, (BlackwellPublishing, 1996), pp. 57-79.17 Sher (2005, p. 200).


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rectification is owed. I shall first explain the idea of a chain ofinjustices. This will require deeper elaboration than the oneSher offers on the mechanism of the subsequent-wrongapproach. Relying on this analysis, I will demonstrate that

there are cases in which there is a seemingly legitimate claimfor rectification for which the subsequent-wrong solutioncannot account.

1. Chains of InjusticesA chain of injustices is made up of a series of injustices tomembers of one generation, which generates wrongful harms tomembers of the next generation: the failure to rectify theinjustice to members of the first generation generates awrongful harm to members of the next generation; this newinjustice may in turn wrongfully harm members of the thirdgeneration and so on. Such a chain of injustices originates inthe historic wrong and ends in the wrongful harms suffered bypresent victims, who are currently making the subsequent-wrong claim.

A chain of injustices comprises achain of harms that arewrongful.18 However, not all harms are wrong.19 For example,some setbacks to peoples interests20 are just,21 such as in thecase of punishment. Other setbacks are misfortunes ortragedies, such as contracting an illness. It would have beennice if all our parents had received a boon while we weregrowing up; it might have improved our lives as well.Nevertheless, one is not necessarily wronged for not havingreceived a boon or for not vicariously profiting from such awindfall. Hence, in order to justify rectification, the harm mustbe wrongful. This is why a chain of injustices is based on a set

18 A chain ofharms (regardless of the harms being right or wrong) beginswith the harm to the initial victims of an historic injustice. Next in the chainare their children (or perhaps members of the next generation in general)who were harmed from the fact that their parents (or more generally theoriginal victims) did not receive just rectification for their harms. After theirbirth (or conception), the claimants (who are the children of the children or,more generally, the members of the third generation) were harmed by the

fact that their parents (or members of the second generation) did not receiverectification for the harms they suffered as a consequence of the originalvictims not having received rectification.19 For a discussion on the distinctions between harms and wrongful harmssee Feinberg, J oel., Harmto Others (New York: Oxford University Press,1984), pp. 32-35.20 For a conception of harm as a setback to interests see Feinberg (1984, pp.31-36).21 Feinberg (1984, pp. 33-34).


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of connected consecutive harms that are wrongful: it is unjustwhen the wrongful harms to members of one generation are notrectified; in turn, this injustice can wrongly harm members ofthe next generation since usually they would have been better

off had the harm been rectified.

22

Demonstrating that eachstage in the chain of harms is wrong and thus constitutes aninjustice is necessary for establishing a current viable claim forrectification.

A final feature of chains of injustice is that the wrongnessof the harm suffered by those currently alive is grounded, viathe chain, in the historic wrong. This is what makes thesubsequent-wrong approach a solution that is relevant tohistoric injustice rather than to just purely contemporarywrongs. Grounding the later harms and harming events in aprevious wrong turns each subsequent-harm into a wrongfulharm going back all the way to the historic wrongs. Theindirect connection the current subsequent-wrong has to thehistoric wrongs flows through the chain of injustices. This iswhy subsequent-wrong claims can stand for historic-justiceclaims.

Because of their dependency on an uninterrupted chain ofwrongful harms, chains of injustices can be severed. Forreasons of non-identity, claims based on chains that have gapsin them are invalid. The wrongness of each harm in the chaindepends on the wrongfulness of the harms suffered by theprevious generation. If a previous generation was not harmed,or if not providing it with rectification for the harms it didsuffer was not wrong, then it follows that the presumed harm tothe next generation did not derive from a present wrong (i.e.,from a wrong that took place during the lifetime of themembers of the younger generation). Gaps can occur forvarious reasons, for example in the case of skipped or delayedharms, which happen when one generation in the chain was not

22 Failure to rectify a wrongful harm is not necessarily wrong; that one willbenefit from rectification does not necessarily denote a duty to rectify. Forexample, a person has a right to rectification if his interest in rectification isa sufficient reason for holding someone else to be under a duty to rectify.*

While one may have a compelling interest in rectification, other competinginterests may override it. That people in some sense deserve rectification forsuffering harm does not necessarily mean that their interest in rectification issufficiently strong to justify conferring on others the duty to rectify. Theremay be other sources for a duty to rectify, turning not rectifying into awrong. Regardless, merely proving the existence of a wrongful harm doesnot make not rectifying it wrong.* For a more general account of the interest theory of rights, see Raz,

Joseph., Morality of Freedom(Oxford: Clarendon Press, 1986), pp. 165-192.


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harmed by wrongs to the generation that preceded it; or, in thecase of skipped wrongs, where the failure to providerectification to harmed members of one or a few generations inthe chain was not wrongful. In such cases the subsequent-

wrong solution does not justify giving rectification to currentvictims, regardless of whether it seems there is otherwise alegitimate claim for historic justice. Here is an example:

2. Delayed HarmsEffects can be delayed. The dependency of the subsequent-wrong solution on an uninterrupted chain of injustices bars itfrom accounting for the rectification claimed for historicinjustice based on delayed harms. Sometimes, at the momentof its occurrence, an act is not harmful to anyone. However, astime goes by, it might cause harm to members of subsequentgenerations. Often actions that do not harm and even benefitcontemporaries may wrongly harm individuals in the future. Insuch cases there is no chain of unrectified wrongful harms (achain of injustices) bridging the generations connecting oldinjustices (originally suffered by members of one generation)with new harms (to members of the next generation). In suchcases future people clearly suffer hardship. However, due toreasons of non-identity the historic causes of the hardship donot, on balance, harm those people. Moreover, there is nosubsequent-wrong claim in such cases, because the earliergenerations were never harmed by the historically wrongfulconduct. Because the wrongfulness of a subsequent harmdepends on its origins in an earlier wrongful harm, and since incases of delayed harm there is no earlier harm, the subsequenthardships suffered by members of all future generations as aproduct of our current conduct are not wrongful.

This may seem like a technical point. It is not. Manypotential historic-justice claims are based on delayed harms.Examples are found in debates surrounding responsibilitytowards future individuals and future generations in contextssuch as energy and environmental preservation, population-growth control and financial planning. In such casesirresponsible conduct and policies at a certain point in time canhave grave consequences later down the line. For example, forseveral generations first-world countries and corporations haveenjoyed products whose manufacture has depleted the earthsenergy supplies, degraded the ozone layer, polluted the air etc.In the future this irresponsible conduct may severely harmmany throughout the globe. From the point of view of thoseindividuals who will be born a generation or two after our


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conduct begins to harm people, it seems plausible to think ofsuch cases in terms of historic injustice: it is a harm (ofpotentially great proportion) that we (the responsible parties)wrongly perpetrate against future generations (the victims).

The fact that our conduct between, for example, the years 1950and 2007 will only start harming people from the year 2050 andthereafter does not make the conduct less wrong or the harms toour grandchildren less wrongful. Moreover, the temporal gapbetween us in 2007 and the grandchildren of our grandchildren,living in the next century, does not make the harm they sufferas a consequence of our direct wrongs against theirgrandparents any less of anhistoric injustice.

Individuals claims based on delayed harms such as theseare vulnerable to the non-identity problem.23 Environmentalpolicy, population growth and economic planning all havepervasive effects on society, which undoubtedly also affect theidentity of future individuals. According to the non-identityproblem, as long as these individuals will have a life worthliving, all things considered our current practices cannot harmthem. Because the harm to individuals is delayed in such cases,there is no chain of wrongful harms connecting the harmssuffered by later generations to the wrongful conduct of thelatter half of the 20th century. Hence, such harms are beyondthe reach of the subsequent-wrong solution and left vulnerableto the non-identity problem.

B. Historic Wrongs, Historic WrongdoersAnd The Subsequent-Wrong Solution

The subsequent-wrong solution justifies rectification based onlyon current wrongs, not on historic ones. Accepting thisapproach as a solution to the non-identity problem entailsaccepting that historic wrongs and historic wrongdoers cannotharm future individuals. This is unintuitive. Fleshing this outhelps achieve two ends. First, it further demonstrates that thesubsequent-wrong solution does not fully account for all therectification we think people deserve in cases of historicinjustice and hence, once again, even as a technical solution itproves imperfect. Second, by looking at its unintuitiveimplications one finds not only a reason for looking for a

23 For an example of an application of the non-identity problem to policies ofpopulation growth, see Schwartz, Thomas., Obligations to Posterity, in R.Sikora, B. Barry (eds.), Obligations to Future Generations, (Philadelphia:

Temple University Press, 1978), pp. 3-13.


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different approach, but one also begins discovering the seeds ofsuch a supplementary solution.

Those demanding historic justice believe that they wereharmed by a persisting injustice that goes back to historic

wrongs; moreover, they perceive the past wrongdoers as amongthose who harmed them. Consequently, they think that theydeserve rectification for the harms they are suffering due tothese historic wrongs. This is the essence of historic justice.For example, members of an uprooted community tend to seethemselves primarily harmed by the displacement of theirancestors a hundred years ago and not just by the fact that thisinjustice has not been rectified since.

Nevertheless, the subsequent-wrong solution views only thecurrent injustices as harmful to currently living people. Whileprevious units in a chain of injustices leading up to currentwrongs have a causal relation to the subsequent harm, theythemselves do not harm those born later in time; only the finalinjustice in the chain does that. This is both why this approachis unintuitive and why it successfully circumvents the non-identity problem.

Generally when we look for the morally relevant causes ofharm, we do not only look at the last act, event or actor in thecausal chain leading up to the harm. In the law of torts this iscaptured by the doctrine of proximate cause. In assessingliability for harm the law first finds the various causes thatmake up the causal chain leading up to the harm. Then, fromthe various acts comprising this chain of causes of fact, thelaw attributes responsibility by determining which acts areproximate causes of the harm. The prominent test for aproximate cause is foreseeability of the harm. A proximatecause need not stand in a temporal or spatial proximity to theharm. It need not be the last act in a chain of causes of factand there may be more than one proximate cause for the sameharm.24 Assuming that morally this doctrine properly reflectshow responsibility should be assigned, which I think it does,there seems something artificial about the subsequent-wrongsolution, which forces us to focus only on a very limited part ofwhat we perceive as the relevant causal chain making up anhistoric injustice. It is not surprising that the subsequent-wrongsolution yields unintuitive results.

The intuitions behind claims for historic justice do notadopt the chain metaphor, which breaks up the history of an

24 Dobbs, Dan B.,The Law of Torts, Vol. 1 (West Group, 2001), pp. 443-492.


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injustice into many subsequent temporally discrete injustices.Usually in making such claims people view the injustices of thepast as the first parts of a persisting injustice. While such anongoing or persisting injustice can gain or lose momentum due

to subsequent acts and events, it is nevertheless part of acontinuum that spans into the present while remaining stronglyrooted in the past. For example, we refer to the injustice ofslavery and Jim Crow, not to the injustice of slavery in 1833 orin the 1840s. According to this approach there is a directrelation between current harms and historic injustice, which theidea of the chain of injustices cannot capture.

While under a subsequent-wrong account the wrongness ofsubsequent acts is indirectly connected to an historic wrong (viaa chain of injustices), it does not tackle the implication of thenon-identity problem, according to which the historic wrong initself cannot harm currently living people. Consequently, thoseresponsible for the historic wrong cannot be held responsiblefor harming currently living people. In fact, according to thenon-identity argument their actions often benefitted suchindividuals. Once again, this is unintuitive.

The centrality of accounting for the role of historic wrongsand wrongdoers to historic-justice claims becomes apparentwhen considering the remedies the subsequent-wrong solutionyields for what we normally view as historic injustice. Thereare many possible remedies for historic injustice.25 They spanfrom conversion, redistribution and reparations to less tangibleremedies. For example, historic justice is often achievedthrough apologies, symbolic gestures or reconciliation and truthtelling.

Apologies include a literal account of the wrongful conductfor which one is apologizing. Because of this, imaginingapologies tailored to the prescriptions of the subsequent-wrongsolution best demonstrates why this approach is problematic.Such remedies ring hollow within the strict confinements of thesubsequent-wrong approach. By asking what the remedy isgiven for, the same can be demonstrated for other forms ofrectification justified by the subsequent-wrong approach.Consider the following examples:

25 For a discussion of possible remedies, such as apologies, payment of cashor in-kind payments, affirmative action, political rights, see Posner, Eric A.,Vermeule, Adrian, Reparations for Slavery and Other Historical Injustices,Columbia Law Review103 (2003): 689-747, 725-736.


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F. W. de Klerk apologized for the crimes of apartheidbefore the South African Truth and ReconciliationCommission, where he said:

I apologize in my capacity as leader of the National Party to the millions ofSouth Africans who suffered the wrenching disruption of forced removal inrespect to their homes, businesses and land. Who over the years sufferedthe shame of being arrested for pass law offences. Who over the decadesand indeed centuries suffered the indignities and humiliation of racialdiscrimination26

Another example of an apology for an historic wrong isthe Waikato Raupatu Claims Settlement Act of 1995; there theCrown apologized to the Maori people for the crimes followingthe colonization of New Zealand.27 The language of theapology is drenched in history:

The Crown acknowledges that the subsequent confiscations of land andresources under the New Zealand Settlements Act 1863 of the New ZealandParliament were wrongful, have caused Waikato to the present time tosuffer feelings in relation to their lost lands akin to those of orphans, andhave had a crippling impact on the welfare, economy and development ofWaikato.28

The subsequent-wrong solution only focuses on subsequentevents as sources of harm to currently living people. Whatharms members of the current generation of South Africansand Maoris are the effects of not rectifying the effects ofcolonialism and racial bigotry perpetrated against members of

the previous generation. The subsequent-wrong approachtacitly accepts that historic wrongs are not harmful to thosecurrently alive and that the original wrongdoers did not harmthem. Imagine that De Klerk or the Queen of England hadqualified their apologies to accommodate merely what isrequired by the subsequent-wrong approach, ignoring historyor clarifying to the Maoris or to the black people of SouthAfrica that the historic wrongs did not harm them. Forexample, imagine them proclaiming in the name of theirnations that we apologize that after your birth we failed torectify injustices suffered by your parents and the members of

26 Truth and Reconciliation Commission Hearing Testimony of formerpresident F. W. de Klerk, May 14, 1997. See Brooks, Roy L., When SorryIsnt Enough, The Controversy Over Apologies and Reparations for HumanInjustice(New York University Press, 1999), p. 505.27 Waikato Raupatu Claims Settlement Act 1995, Part 1 Apology By theCrown to Waikato.28 Ibid., at section 6 (3).


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your community; furthermore, we are sorry for the harms yousuffered as a consequence. However, we do not apologize forwhat we did to your ancestors and parents (before you wereborn) because it did not harm you and may even have benefited

you. Such an apology rings hollow at best; it essentiallyportrays past wrongdoers as benefactors of subsequentindividuals and ignores their crimes against currently livingindividuals.

Imagine a similar apology by the U.S. governmentpurporting to address the racially based harms suffered bycurrently living African Americans.29 According to thesubsequent-wrong solution such an apology must acknowledgewrongs such as the lack of satisfactory policies of affirmativeaction and not properly addressing the socio-economicinequality during the past ten, twenty, thirty years (dependingon the age of the recipients of the apology). However, theapology need not address the American slave trade as a harmfulpractice nor take responsibility for it, since it occurred beforethe currently living members of the African-Americancommunity were born. Apologizing for the lack of sufficientaffirmative-action initiatives, without apologizing for slaveryand Jim Crow, strikes me as missing one of the key motivationsbehind such claims for historic justice.

In all these examples there is a lingering sense thatsomething of moral importance is left out. Nevertheless, underthe logic of the subsequent-wrong solution the remedies inthese examples succeed in fully addressing all the harmscurrently living individuals can claim they suffered in cases ofhistoric injustice. First, it is not clear that it actually succeedsin doing so, certainly if one considers that part of a remedy isthat it is given for the right reason. Similarly to how sufferingonly counts as punishment for p if it is inflicted with theintention to punish for committingp, a remedy is only a remedyfor q if it is given as a remedy for q. Second, the subsequent-wrong solution is unintuitive; it does not justify rectification forwhat we normally take as all the right reasons and does notidentify all of those who harmed the victims of the injustice.

C. That The Ancestral Relation Has a Role in Historic Injustice

29 President Clinton toyed with the idea of apologizing for slavery, but thisnever materialized into a formal apology. See Brophy, Alfred L.,Reparations Pro & Con(Oxford University Press, 2006), p. 13.


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Focusing on the role group membership plays in historicinjustice further emphasizes, as well as helps in understanding,the problematic disconnect the subsequent-wrong solutionprescribes between the original wrong and the current wrongful

harms suffered by current victims. As the examples in theprevious section began to make apparent, the communal andancestral bond between current victims of historic injustice andthe original victims are key characteristics of historic-justiceclaims. It does not seem coincidental that claims for historicjustice are almost always brought by members of the groupdescending from the originally wronged group and individuals.For example, if today an imaginary group of SwedishAmericans, rather than African Americans, were demandingreparations for slavery, it would seem odd. The imaginarySwedish Americans may have a just claim for rectification, butunlike the African Americans they do not seem to have a claimfor historic justice. Applying the subsequent-wrong solution tothe claim of the imaginary Swedish Americans does not causeany friction with our intuitions as it did in the examples raisedin the previous section. There seems to be no direct connectionbetween the harms the imaginary Swedish Americans sufferand the historic wrongs of slavery. The harms they suffer arenot perceived as part of a persisting historic injustice rooted inslavery but rather appear to derive purely from a subsequentwrong. This indicates that historic-injustice cases, unlikesubsequent-wrong cases, entail some interesting connectionbetween the group identity of the victims of the original wrongand the group identity of the current subsequent victims.

The subsequent-wrong solution can give a reasonableexplanation of why those making claims for historic justice arealmost always descendants of the original victims. However,this explanation further exposes the limitations of thesubsequent-wrong approach as well as helps direct us towards asupplementary solution to the non-identity problem in thehistoric-justice context.

The subsequent-wrong approach is based on a strictlycausal relation, and there is a prima facie reasonable causalexplanation as to why claims for historic justice tend to begroup-centered. It is reasonable to expect that descendants ofthe original victims and subsequent members of theircommunity will suffer most of the harm generated by the chainof failures to rectify previous harm to members of thatcommunity. Most societies are structured in a way that makesmembers of younger generations dependent on members ofolder generations, certainly for the first parts of peoples lives.


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Many times the same dependency also exits between childrenand their families and communities. It is reasonable to expectthat harm to members of the older generation of a certainfamily or community will harm members of the younger

generation of that family or community; it is also reasonable toexpect it will harm them more than it will harm members ofother groups. Moreover, not rectifying harms done to onegroup often also benefits members of the responsible group,saving them the cost of providing reparations. Both thesereasons cause the chain of harms originating in an historicwrong to primarily track group membership.

This account of the relation between ancestry and harm incases of historic injustice is not categorical; it is purely causal.According to the subsequent-wrong solution not all descendantsare necessarily victims of the failure to rectify and not all non-descendants are unharmed by it. The effects wrongful actshave on individuals are many and do not have to trackcommunal or familial membership, even if the contingent socialstructure skews them in that direction.

There is room for exceptions. Under this explanationmembers of the younger generation do not have to be harmedby wrongs to their parents or older members of theircommunity, while members of other communities might beharmed by those very same wrongs. First, it is not uncommonfor some members of a deprived group to enjoy certain personalbenefits as a consequence of their communitys or familysmisfortune. This may derive from various factors, such as onebecoming especially motivated by the deprivation; affirmativeaction; occupying some intermediating role between thedeprived community and other groups or succeeding in someapparatus that allows for a few individuals to break out of thecycle of deprivation but that generally functions to perpetuatethe social order.

Second, the subsequent-wrong solution recognizes that thefailure to rectify can wrongly harm non-members of thehistorically harmed community. Under this explanation thereason chains of injustices mostly affect members of theoriginally wronged group does not derive from membership inthe group but from contingent facts about society whichdetermine the causal effects a chain of injustices has. Inprinciple, a subsequent injustice may also harm members ofother communities. Accordingly, wrongly harmed members ofother communities are victims of the chain of injustices,similarlyto harmed members of the historically wronged group.


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I am not interested in the validity of this embryonic yetprima faciereasonable explanation for why the failure to rectifymostly harms the descendants of the original victims and notmembers of other groups. Whether this explanation is factually

sound or not, it iscategoricallylacking, further illuminating thelimitations of the subsequent-wrong approach. There issomething unsatisfying in arguing that the reason historicinjustice is largely a communal matter derives not from anycategorical connection between group membership andsuffering historic injustice, but merely from the contingentsocial structure that makes members of the younger generationdependent on members of the older generation. Descendantsidentify with the original victims, demand acknowledgment ofthe historic wrongs, insist that the world remember whathappened, hold memorial days in honor of the past victims andso on. Members of other groups do not exhibit such behavioreven if they view the past as harmful to them. Historic injusticeis communal; it depends upon and even creates attachmentsamong people, groups and generations. The subsequent-wrongapproach cannot account for this unique relation.

This limitation of the subsequent-wrong solution becomesapparent when comparing a case where the failure to rectifyharms members of the historically wronged group with a casewhere it harms members of other groups. The subsequent-wrong solution draws no distinction between the two cases both harms derive from the failure to rectify previous wrongfulharms, which are part of a chain of injustices. Going back tothe example just introduced, under the subsequent-wrongsolution the claim of an African American, who was harmed bythe failure to rectify the racially related harms to members ofhis community, is structurally similar to the claim made by animaginary Swedish American, who happened to have alegitimate interest in the fulfillment of the duty to rectify theprevious generation of African Americans and was harmed bythe omission. The exclusive focus on the current wrong (thefailure to rectify) seems appropriate in the case of the imaginarySwedish American but hides the historical nature of the claimof the African American. As indicated above, while both mayhave a legitimate claim, the former person has a claim fromjustice that indirectly relates to an historic injustice, whereas thelatter person seems to have a claim from historic justice. Itsincapability to distinguish between the two cases on thesegrounds shows, once again, that while the subsequent-wrongsolution may justify rectifications to the victims of thesubsequent effects of historic wrongs, in cases of historic


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injustice it does not do so for all the right reasons. It missessomething of importance, namely the connection betweensuffering from a persisting historic injustice and membership inthe originally wronged group.

Membership in the historically wronged group or somesignificant attachment to such a group seem to mark thedifference between those who are harmed only by the currentstage in a chain of injustices and those who are harmed by thewhole chain of injustices as a persisting ongoing injustice. Itmarks the difference between a subsequent-wrong claim and aclaim for historic justice. Members of the historically wrongedgroup suffer, at least partially, historic injusticeas members ofthe historically wronged group and not as individuals who allhappen to be members of that group (and hence causally ingreater danger).

VI. A RUDIMENTARY OUTLINE FOR ASUPPLEMENTARY SOLUTION

From shifting the attention towards the relation betweenhistoric injustice and group membership a supplementaryapproach emerges. Historic justice claims are almost alwaysstrongly connected to membership in a group. At least to adegree, claims for historic justice involve harm descendantssuffer as members of the historically wronged group. It is aharm one suffers as a Jew, as a Maori, as a Cherokee and so on.Based on this observation I propose a blueprint for a newsolution to the problem the non-identity argument poses forhistoric justice claims. This proposal is rudimentary and shouldbe viewed as such; fully developing and defending this solutiongoes beyond the parameters of this essay.

Under the non-identity argument a wrongful same-groupact30 is not barred from subsequently harming that group,similarly to how a same-person act is not barred from harmingthat person. In other words, a wrongful act that does notdetermine the existence of a group is not barred, at least forreasons of non-identity, from making that group better or worseoff.31 A same-group act that wrongfully harms that group may

30 A same-group act is an act that does not determine the identity of thatgroup, as opposed to a different-group act, which is an act without which thegroup would have never exited.31 I take it that groups have interests. If harm is defined as a setback ofinterests, it follows that groups can be harmed. Nevertheless, from this itdoes not follow that groups are moral patients. The fact that groups can bemade better or worse off does not entail that such effects to the group are of


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also function as a different-person act in the case of an individualmember of that group. If that individual will have a life that isworth living it follows that, for reasons of non-identity, the same-group act will not be able to harm her. In such cases, while the

group itself is harmed by past wrongs for its identity ismaintained the groups individual members, whose identitywas determined by the historic wrong, are not harmed. This isusually the case in historic injustice and the source for the non-identity problem. In such cases the group is clearly deprived,suffering from a persisting historic injustice. However, forreasons of non-identity, the individual members of the group arenot harmed by the injustice to the group. The mere fact thatones group or community is harmed does not mean that onbalanceany specific individuals are also harmed or that the actsthat wrongly harmed the group also harmed its members. Hence,morally speaking, group harm in and of itself is not sufficient tojustify rectification. This is because a moral justification forrectification, even group rectification, must at the bottom rely onperson-affecting reasons.

This is why a group-based solution to the problem the non-identity argument poses to claims for historic justice must shownot only a wrongful group harm but also that in certain casesharm to a group is harmful to its individual members in a waythat does not lend itself to a balancing out with the advancementsof those individuals other interests. For lack of a better term Iwill refer to such harm as constitutive harm. Seeing that thehistoric wrong does not transform the identity of the group, thegroup is harmed by the historic wrongs. And if the current harmto the group, originating in the historic wrong, can generate aconstitutive harm to the groups currently living individualmembers, then the non-identity problem is circumvented throughthe persisting identity of the group. The harm to the group ismaintained throughout the generations and, in each generation,the wrongful harm to the group also constitutes harm to theindividual members of that group. That the historic injustice tothe group is harmful to individuals can make the group harmmorally wrong and may in turn justify rectification.

Invoking a notion of constitutive harm and grounding harm(rather than mere setback to interests) in social identity is the

moral value, since groups are not moral subjects. The basic assumption ofthis essay is that only the interests of individual people (and possiblyanimals) have intrinsic moral value. InReasonsandPersonsParfit poses thenon-identity argument as a challenge to person-affecting ethics; as indicatedabove this new approach I am sketching out here is an attempt to meet thatchallenge in the context of claims for historic injustice.


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crux of the approach outlined here. It is a move that requiresmuch more elaboration than I can offer here. What follows is acondensed and initial account of the path such solution may take.

Individuals may incur constitutive harm in the context of

certain group attachments. People have identity-formingattachments and among the most significant of such attachmentsare peoples attachments to groups such as nations, families,peoples and other socially significant communities. Beingattached entails having certain personal interests in how theobject of the attachment is faring. Attached people absorbcertain interests of the object of their attachment as their own; insuch cases certain harm to the object of the attachment ipso factosetback these absorbed interests of the attached individuals.Being formatively-attached to a group entails not only absorbingcertain group interests as ones own but also that one has thoseinterests as part of ones identity; they are constituting interests.In such cases certain injustices to the group ipso facto harmthose formatively-attached to that group. The reason for this isthat harms derived from setbacks to ones constituting interestsharm one as a matter of identity. As such, setbacks toconstituting interests are not open to aggregation with setbacksand advancements to ones other interests. Certain things aresimply bad for one as function of who one is. If x is bad for oneas a matter of identity, then even if x is also in some sensebeneficial to one it does not make x not bad for one. This is whyin cases of historic injustice the fact that the existence of theindividuals is determined by the historic wrong does not cancelout the harm individuals incur as members of the historicallywronged group. In such cases that one is formatively-attached toa group that was wronged and is currently harmed, ipso factoentails that that individual is also harmed by the historic wrongs,regardless of how those historic wrongs otherwise affect one.The benefits one gains from ones existence do not balance outthe constitutive harm one incurs; the two are in a senseincommensurable. Hence, the fact that most individuals have aninterest in their own existence, an interest that may compete withtheir interests in the well-being their community, does not washoff the harm they incur from certain harms to their community.It is harm that is built into ones social identity.

The notion of constitutive harm can be illuminated throughan analogy to the idea of threshold harm32 or inalienable human

32 Meyer, Lukas H., Past and Future: The Case for a Threshold Notion ofHarm, in L. H. Meyer, S. L. Paulson and T. W. Pogge (eds.), Rights,


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rights. Certain interests are thought fundamental to any personas a person. Setting back such interests is considered harmful topeople in their capacity as people. In other words, a persondeprived of certain inalienable human rights or a certain

threshold of welfare is a deprived person, even if, all thingsconsidered, the deprivation benefitted one. I suggest thatperhaps certain group interests are similarly fundamental to thosewho are formatively-attached to those groups. In such casespeople suffer harm as a function of their identity as members ofthe group.

Clearly not any group harm ipso factoconstitutes harm to itsindividual members as a matter of those individuals identity. Inaddition, clearly not every sort of membership in any sort ofgroup generates such interests in the members of the group.However, I believe that the type of group membership and thesevere and all-encompassing harms usually involved in cases ofhistoric injustice can qualify.

This solution, fully developed, argued for and defended, cansupplement the subsequent-wrong solution. It can account fordelayed harms, the relation between group membership andhistoric injustice and for the direct connection between thehistoric atrocities and the harm suffered by currently livingdescendants of the original victims.

VII. CONCLUSION

The subsequent-wrong solution is offered as a technicalsolution to the difficulties the non-identity problem poses to ourmoral intuitions about harm and rectification for historicinjustice. It is a technical solution because it is unintuitive.The primary reason for its appeal is that it purports to cover allviable claims for historic justice. I have tried to demonstratethat first, even as a technical solution, the subsequent-wrongapproach is not perfect. Second, that the way this approachclashes with our intuitions about historic injustice serves as amotivation for looking for another solution, as well as anindication to the form this alternative or supplementary solutionshould take. As indicated, historic injustice is strongly tied togroup membership and ancestral relations, and it is in how suchattachments implicate, mold and affect individuals that Ibelieve the solution lies.

Culture, and the Law, Themes Fromthe Legal and Political Philosophy ofJ oseph Raz, (Oxford University Press, 2003), pp. 143-160.


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Documents

HISTORIC INJUSTICE AND THE NON-IDENTITYPROBLEM