At the upcoming slavery reparations conference at Thomas Jefferson School of Law, I will speak on the topic of reparations within the rule of law. My paper is still (ahem) a work in progress. However, I know the structure of my remarks, and I just turned in my abstract (so that our publicity folks could get to work on the printed materials). The abstract of my presentation is as follows:
Kaimipono David Wenger: Reparations within the Rule of Law
The question of reparations for slavery raises a number of concerns. One important question is whether reparations can fit within the rule of law. This question relates to underlying concerns about who defines the rule of law and what the rule of law includes.
The rule of law is a broadly respected concept in legal discourse, and is viewed as an important element undergirding societyâ€™s interaction with the law. A strong rule of law creates several benefits for individuals and for society. The rule of law can serve as a safeguard against certain kinds of tyranny and oppression. In addition, a perception of a robust rule of law lends legitimacy to laws and legal regimes, and streamlines legal experience.
The rule of law as a concept is not always well defined. At its most basic, the concept requires that individual interactions with law be based on application of law rather than arbitrary exercise of power; that laws be equally applied to all individuals; and that laws be knowable and performable. Some influential formulations of the rule of law, such as that offered by A.V. Dicey, follow this basic structure and are almost entirely procedural in nature. Such exclusively procedural formulations are not universally accepted, however, and longstanding debates exist on whether the rule of law is capable of bearing substantive content.
Slavery reparations present special challenges to the rule of law. Reparations potentially involve the transfer of large amounts of money to a class of people â€“ descendants of an original harmed group â€“ who are seeking payment over a century after the initial harm. In addition, the cost of this transfer will necessarily fall on at least some parties who are not morally culpable for the original harm. These aspects of reparations raise complex concerns relating to the rule of law, which should be addressed before any restitution is possible. While these concerns are certainly reasonable, examination of the broader rule of law concerns shows that the greatest offense to the rule of law would arise from not paying reparations.
Reparations are an acknowledgment of the displacement of the rule of law under slavery, a displacement which in turn created a regime of lawlessness and repression. Slavery was only made possible through the removal of rule of law protections as applied to one segment of the population â€“ Blacks. The denial of rule of law protection for Blacks did not end with slavery, but continued for a century or more after slaveryâ€™s end. Blacks were denied civil and political rights and meaningful participation in the political process until the civil rights era; even today, they struggle for equal rights.
Given this background, reparations serve as a form of atonement â€“ a crucial signal to the Black community that society wishes to atone for its error and take concrete steps to repair the damaged community. Absent such a signal, the rule of law breach that began with slavery will continue, unhealed. The consequences of the breached rule of law â€“ resentment, distrust of law, a perception that law is beholden only to power â€“ will continue to negatively impact society and undermine faith in the rule of law.
Societal expression of remorse for rule of law breaches â€“ coupled with concrete steps to ameliorate the harm â€“ is a necessary step in repairing the damage done by slavery to the rule of law. Reparations show societal will to set things right following the removal of the rule of law protections for Blacks. They are also a way of affirming that such breach of the rule of law will not recur. Thus, payment of reparations allows society to move forward, and encourages disadvantaged groups to regain confidence in the rule of law. Not only are reparations consistent with the rule of law, they are in fact a product of the rule of law.
(cross-posted at Concurring Opinions).