EAI Center for Values & Ethics Working Paper 1

Author

Daniel Butt is currently a Lecturer in Political Theory at University of Bristol. He received Ph.D in Politics from Oxford. His primary research is within the field of contemporary analytical political theory on questions of international justice, particularly in relation to the rectification of historical wrongdoing. He is also interested in various questions of personal moral responsibility and legal philosophy.

 

His book Rectifying International Injustice: Principles of Compensation and Restitution between Nations published by Oxford University Press in 2009 is the culmination of eight years of research on the contemporary claims for compensation and for the restitution of property which arise as a result of past wrongdoing between nations. Now he is planning to publish chapters forthcoming in three edited collections relating to global justice.

 

Dr. Butt has extensive teaching experience and has regularly taught undergraduate courses in Political Theory, History of Political Thought, British Politics and Government, Introduction to Politics, Comparative Government, and Theories of the State. He is involved in the Arts & Humanities Research Council Network on Microfinance and Global Justice and is currently Director of the programme on 'Courts and the Making of Public Policy' for the Oxford-based Foundation for Law, Justice and Society.

 

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Identifying the morally relevant counterfactual

 

What does it mean to say that a group of people is entitled to compensation as a result of a given act of injustice? In simple terms, it must be maintained that the group in question is still suffering in some sense from the act of injustice in question. The whole point of compensation is to provide counter-balancing benefits to offset losses. What is required here is some notion of a counterfactual. Superficial accounts of compensatory justice define this counterfactual very simply, as being the state of affairs which would have obtained had the act of injustice in question not occurred. In this section, I show that this formulation of compensatory justice, as it stands, is inadequate. It is indeterminate as to the nature of the counterfactual to which it appeals, and its most conventional interpretation leads to unacceptably counter-intuitive outcomes. In particular, I argue that the conventional account of compensatory justice is inadequate when it comes to considering a particular kind of injustice that has characterized a great deal of international history, which is best described as non-consensual exploitation.

 

Let us accept that circumstances can arise where it is appropriate for one community to pay compensation to another. The paradigm case concerns instances where one community injures another, which is to say both that it harms (or, we might say, damages the interests of) the other, and acts unjustly in so doing. Some notion of injustice or wrongdoing is important here to distinguish what we might think of as rights-violating actions from actions which set back another party's interests, but do so in a legitimate way (through, for example, fair competition). This is still a long way from maintaining that any historic actions give rise to contemporary compensatory duties, for we still need an account of what it is to suffer as a result of historic injustice. It is often suggested that, whatever we think about colonial practices themselves and the motives of those who perpetuated them, it does seem as if they have been beneficial in the long run, in that current day members of the former colonies now enjoy a better standard of life than they would do had colonialism never occurred. Let us call this the Counterfactual Observation. A version, in relation to the descendants of slavery, is put forward by Ellen Frankel Paul:

 

If not for the slave trade, most of the descendants of the slaves would now be living in Africa under regimes known neither for their respect for human rights, indeed for human life, nor for the economic well-being of their citizens. The typical denizen of one of these states, I dare speculate, would envy the condition of the black teenage mother on welfare in one of this country’s worst inner cities. Starvation, war, tribal depredations, infant mortality, disease, and hopelessness are the standard condition of many regions of Africa, for example, Ethiopia and Somalia.

 

The Observation is sometimes presented as a defense of the colonial practices themselves, whereby it is suggested, by implicit or explicit reference to some kind of consequentialist reasoning, that the ends justified the means. In this crude form, the argument is manifestly inadequate even on simple consequentialist grounds. When we are considering the consequences of an action, we cannot (for example) simply measure the amount of utility at one particular point in time, such as the present day, and compare it with the amount of utility at the point in time directly before the action occurred to determine whether the action was justified or not; we need to give consideration also to other time periods which were affected by the action. So it might be, for example, that present day members of nation X are indeed better off in the current day than they would have been had colonial practice Y never occurred, but that this overlooks the fact that in the intervening period the members of nation X suffered tremendously, meaning that the total amount of utility measured across time is less than it would have been had Y never occurred. In such cases, the observation that colonial practices have proved beneficial in the long run to present day nationals need not lead one to the conclusion that the end justified the means, or that the practices were, in a wider sense, beneficial. But there is one sense in which it is commonly felt that the Observation is important, and this concerns the issue of contemporary compensation for historic wrongs. How can a claim for compensation be advanced for an event which has actually benefited the person making the claim?

 

The problem here concerns the role that counterfactual reasoning is normally understood to play in calculating appropriate compensation. As stated, claims for compensation must, by definition, refer to some kind of loss or harm. The purpose of compensation (ideally, at least) is to cancel out this loss. It is far from the case that a loss necessarily gives rise to an entitlement to compensation, but in order for there to be an entitlement it is a necessary condition that there be a loss of some kind. Thus Goodin articulates the common understanding of compensation when he writes that, “Compensation is supposed to provide the ‘full and perfect equivalent’ of what was lost, and so to restore completely the status quo ante.” This reference to the restoration of the status quo ante can be misleading, as it is, in fact, generally accepted that the situation which should be brought about is not the equivalent of the state of affairs before the injustice was perpetrated, but the state of affairs which would have obtained had the unjust action not occurred. Thus Nickel writes that, “Compensatory justice requires that counterbalancing benefits be provided to those individuals who have been wrongly injured which will serve to bring them up to the level of wealth and welfare that they would now have if they had not been disadvantaged.” The claim, then, is that we need to devise a counterfactual account of how the victim would have fared had the offence never been committed. This is Nozick’s account of full compensation:

 

Something fully compensates a person for a loss if and only if it makes him no worse off than he would otherwise have been; it compensates person X for person Y’s action A if X is no worse off receiving it, Y having done A, then X would have been receiving it if Y had not done A. (In the terminology of economists something compensates X for Y’s act if receiving it leaves X on at least as high an indifference curve as he would have been on, without it, had Y not so acted.)

 

This is what is normally meant when it is claimed that individuals or groups are entitled to compensation. Insofar as they have suffered as a result of an act of injustice, they will be compensated to the extent that they are moved to a position equivalent to their counterfactual position. Now the problematic nature of the Counterfactual Observation becomes clear. How can a claim for compensation be made by a party who has actually benefited as a result of injustice?

 

In fact, for some, it now begins to look as if the entire project of compensating for historic injustice is conceptually flawed. A number of writers have referred to a variant of the Counterfactual Observation in relation to compensating for ancient wrongs, termed the non-identity problem. Typically, such approaches take their lead from Derek Parfit’s writing on personal identity in Reasons and Persons. The idea is that unjust actions can make a difference to who actually exists in later time periods, since they affect the circumstances in which procreation takes place. Each individual grows from a particular pair of cells, an ovum and a spermatozoon. If their parents had mated at a different time, it is almost certain that a different pairing of spermatozoon and ovum would have taken place, resulting in a different person.

 

Were it not for the acts of injustice in question, present day individuals would not exist. So how can they claim that they have been harmed? There are a number of possible responses from the viewpoint of international compensatory justice. The first is to place emphasis on the group membership of the individuals who are to be compensated, and claim that it is the group which has suffered rather than the component individuals of the group. Although it might be true that there is a sense in which individual members of the group have benefited from the historic act in question, it might be possible to claim that it, qua group, has suffered. This is evidently a way around the non-identity problem which is particularly accessible within an international context, given that the entities we are dealing with are continuous political communities. It is not an unproblematic response, since these communities are nonetheless composed of individuals, and one may reasonably question how it can be that a collective is worse off even though all its members individually have benefited. However, I do not, in fact, believe that the account of counterfactuals I give in this section is susceptible to the objection. Insofar as it generates counterfactuals in a non-probabilistic fashion, it is able to make reference to a counterfactual state where the individuals who claim compensation exist, but where the unjust action did not occur. This move is controversial, philosophically speaking, in terms of certain understandings of personal identity and possible worlds. Should my account be rejected for such reasons, however, I should stress that my argument here is not dependent on my providing a solution to the non-identity problem. I am very dubious, in fact, as to whether we should allow the non-identity problem to play any role at all in our theorizing over what should actually happen in the real world. The conclusions of the non-identity problem in the field of compensatory justice are so counter-intuitive as to be absurd...(Continued)