Reparative justice, historical injustice, and the nonidentity problem

History is riddled with injustice. Nazi Germany murdered and stole from millions during the Holocaust. Imperial powers expropriated land, relocated populations, and violently maintain(ed) oppressive colonial systems. The slave trade created unimaginable suffering and oppression. These are examples of historical injustice. Historical injustices are unjust actions occurring in the past in which the original individual perpetrators and victims are no longer alive. There is widespread intuition that historical injustices require reparative justice. Yet despite this reparative intuition, reparative justice for historical injustices encounters significant philosophical problems. In this paper, I consider one popular philosophical objection: The Nonidentity Objection.1 The Nonidentity Objection says that contemporary individuals are not owed reparative duties for historical injustices because, without the historical injustice they would not have come to exist.2 I show that the objection does not succeed. I accept the claim that particular individuals would not have come to exist without the injustice but deny that it vitiates their claim to reparative justice. I argue that the Objection only challenges reparations if we assume a model of reparative justice on which claims to reparations are generated by the harms that result from an injustice. If we use a different model of reparative justice, the Nonidentity Objection does not succeed and we can vindicate reparations. I begin (Section 2) by presenting a general understanding of reparative justice, including three questions any model of reparative justice must answer. I sketch a popular model of reparative justice (the Harm Model) that is often used in the context of historical injustice to answer these questions. Next (Section 3), I present the Nonidentity Objection that challenges the possibility of reparative justice for historical injustice. I argue (Section 4) that the Objection only applies to arguments that assume the Harm Model. I offer an alternative model of reparative justice (the Wrongful Interaction Model) on which reparations address the wrongful actions of the injustice. I develop this model by drawing on accounts of relational (second-personal) morality,3 and demonstrate how the model overcomes the Objection.4 I conclude (Section 5) by introducing three new problems that my model faces. I argue that we should prefer my model over the Harm Model because these challenges pose a less intractable threat than the nonidentity problem. Reparative justice starts from the intuition that injustices require repair. Reparative justice is distinct from distributive justice. Distributive justice concerns an allocation of resources, burdens or benefits, or a fair state of affairs. In contrast, reparative justice concerns what is owed to victims of a discrete unjust action. Where distributive justice determines allocations of goods, rights, benefits, and burdens in a society, reparative justice determines what victims of injustice are owed on the grounds of this unjust act. I am concerned with a particular kind of reparative justice that is about unjust interactions between wrongdoers and victims. This kind of reparative justice is about what victims of these unjust interactions are owed because of these unjust interactions. This interactional reparative justice can be distinguished from structural theories of reparative justice (Butt, 2021; Lu, 2017, 114–143). Structural theories determine what ought to be done to promote a more just state of affairs, distribution, or structure. Interactional theories concern what ought to be done about something that occurs in the past because of the morally significant features of this past event itself, not what addressing this past event will do in the future. There is a related distinction between backwards-looking and forward-looking theories of reparative justice. Backwards-looking justice concerns what is owed to respond to some unjust event occurring in the past. Forward-looking justice concerns what would best promote the just state of affairs in the future. One might think that interactional reparative justice is inherently backwards-looking, whereas structural reparative justice is forward-looking. However, this need not be the case. Forward-looking theories could incorporate elements of interactional reparative justice and backwards-looking theories can incorporate structural elements (see, e.g., Butt, 2021; Nuti, 2019; Waligore, 2016).5 I take no stand on the precise relation between interactional, structural, backwards-looking, and forward-looking justice here (I discuss this in other work [Lambrecht, 2024a; Lambrecht, 2024b]). All I am concerned with here is vindicating interactional reparative justice regardless of whether this counts as backwards- or forward-looking reparative justice. The fact that I limit my discussion here to interactional reparative justice should not be taken to suggest that I think that other forms of reparative justice (e.g., structural or forward-looking approaches) are incorrect or have no place. On the contrary, as I have argued elsewhere Lambrecht, 2024b, I think these other forms of justice are indispensable for addressing historical injustice. I limit my discussion to interactional reparative justice because an optimal theory of reparative justice intuitively includes interactional justice alongside any other forms of justice. Even if you think that structural justice is the most important part of redress for past injustices, interactional justice is also important for things like apologies and accountability for wrongdoers (Butt, 2021; Lambrecht, 2024b; McKeown, 2021). My goal in this paper is to vindicate this kind of reparative justice from the Objection that challenges it. Bicycle Theft: I steal your bicycle. You were going to use this bicycle to ride to work. The Timing Challenge: Any model of reparative justice must be able to answers questions (1)–(3) in a way that can be extended to historical injustices. A model must show how the same principles of reparative justice for contemporaneous injustices occur for historical injustice despite the passage of time changing our answer to questions (1)–(3). To show that reparative justice for historical injustice is possible and to solve the Timing Challenge, we need to show that the same or functionally equivalent principles of reparative justice for contemporaneous injustices apply for historical injustice. If there are no parties in the present who are responsible for the normatively significant features of the unjust interaction that generate the claim to reparative justice, if there are no victims who experience these normatively significant features, or if it is not possible to discern which effects reparations must address given the passage of time, then reparative justice for the historical injustice is not possible. Compare the bicycle theft with slavery. The normatively significant features of the bicycle theft that generate reparative justice are clearly about the fact that I stole and continue to possess your bicycle. The content of reparations is also quite easily determined: reparations will include return of your bicycle and compensation for harmful effects of the theft. And the parties of the injustice are obvious: I must return the bicycle to you. Now compare slavery. The three questions are far more complex. The features of the unjust interactions of slavery have long ceased and their effects have become so far reaching. It is unclear which must be addressed to address the original interactions. The legacy and the effects of slavery continue into the present in important ways. Yet the same interactions (chattel slavery) do not occur in the present between the same individuals (slave owners and slaves). It looks like we cannot straightforwardly apply whatever model of reparative justice we use for the bicycle theft. We need to explain why some things in the present count as reparative justice even though our answers to all three questions are completely different. We need to show that there is a model of reparative justice that can be extended to cases of historical injustice.6 Many arguments attempt to solve the Timing Challenge with a seemingly intuitive model: Reparative justice is generated when a wrongful interaction results in harms, the content of reparations is determined by the harms that result from the wrong, and the party that caused these harms owes reparations to the party who suffers these harms. Call this the Harm Model of reparative justice (henceforth "HM"). The Harm Model of Reparative Justice (HM): (1) Something generates reparative justice only if it is a wrongful interaction (a wrong) that results in harms that some party suffers, where (2) the content of reparations is determined by these harms, and only if (3) there exists a party who is in some way responsible for the wrongful interaction and a party who suffers the harms resulting from this interaction.7 The HM is intuitive and philosophically popular for cases of historical injustice.8 Versions of the model differ in their answers to questions (1)–(3). One version is the "Chain Argument," as offered by Daniel Butt (2006). On Butt's argument, reparative justice is generated when a wrong results in harms and reparations must address these harms. Individuals who are continuously denied reparations are victims of a "fresh injustice" (p. 360). When this continues into the present, present individuals are worse off because of the denial of reparations they and their ancestors are owed. Another example is one version of the "Inheritance Argument" as offered by Bernard Boxill (2003) and George Sher (2005). On this version of the Inheritance Argument, individuals in the present experience harms because their ancestors should have been given reparations. Descendants would have been given this inheritance and would have been better off. Reparative justice demands that present individuals receive reparations for these harms of being denied reparations. Another prominent version is Janna Thompson's (2001) "Family Lines Argument." On the Family Lines Argument, descendants of victims of historical injustices are harmed in the present because they cannot properly interact with their family history (pp. 126–130). Reparations must address these ways the injustice continues to harm descendants. My aim is not to assess any particular version of the HM. Instead, I consider an objection that challenges any account of reparations for historical injustice that uses the HM.9 The nonidentity problem is a general philosophical puzzle developed by Derek Parfit (1984) that runs as follows.10 When an event (including an injustice) is necessary for an agent coming to exist, that agent does not have a moral claim against this event because, if it had not happened, the agent would not have come to exist. Assuming the agent lives a life worth living (which I assume for the rest of the paper), they cannot be said to be made worse off by the event. P1. An agent is owed reparations for an injustice only if the agent is harmed by that injustice [Harm Model]. P2. If an event is a necessary condition for an agent coming to exist, then this agent cannot be said to be harmed by this event [nonidentity problem]. P3. Historical injustices are necessary conditions for all or most present agents having come to exist [empirical observation]. P4. No present agent is harmed by any historical injustice [P2, P3, modus ponens]. C. No present agent is owed reparative justice for historical injustices [P1, P4, modus ponens]. P2 (and the nonidentity problem more generally) relies on a particular view of harm. It assumes that an action harms someone only if that action makes someone worse off than they would have been had the action not occurred. This is the Counterfactual Account of harm.12 For the Nonidentity Objection against the HM to work, and for the nonidentity problem to hold more generally, the HM must rely on the Counterfactual Account. I will show that the plausible alternative accounts of harm either equally fall victim to the Nonidentity Objection or cannot be used by the HM to generate intuitive results when applied to reparations for historical injustice. The Counterfactual Account is comparative. It says that someone is harmed by an action when they are made worse off by this action compared to a baseline where this action would not have occurred. The nonidentity problem arises because the comparative baseline is not available: If the action had not occurred, then the person would not exist. Notice that this means that any similarly comparative account of harm will encounter the same problem if it relies upon a baseline. For instance, if an action harms someone when it makes them worse off than they were prior to the action (a temporal baseline) then it encounters the nonidentity problem in the same way as the Counterfactual Account (Boonin, 2014, 60–64). One might suggest a moralized comparative account of harm: an action harms someone when that action makes them worse off than they ought to be or have been (Boonin, 2014, 61; Meyer, 2021). This appears to be a comparative account of harm that does not rely on a baseline that is vulnerable to the nonidentity problem. But this moralized "worse off than one ought to have been" is ambiguous between two understandings. On the first understanding, someone is made worse off than they ought to have been, where "ought" is understood in comparative terms to a different action that could have been committed. On the second understanding, someone is made worse off than they ought to be, where "ought" is understood in terms of independent moral reasons. The first, comparative understanding is still vulnerable to the nonidentity problem. Since the agent would not exist had the action not occurred, there is no comparative action that the wrongdoer ought to have taken that would have made the victim any better off, because there is no other action that could have been done that would also result in the existence of the victim. So only the second understanding—when "worse off than one ought to have been" is understood in terms of independent moral reasons—can overcome the nonidentity problem. I'll consider this view below. For now, the point is that any comparative account of harm will fall victim to the nonidentity problem in the same way as the Counterfactual Account, regardless of the baseline that is being compared. So to avoid the same nonidentity problem as the Counterfactual Account, we need an alternative account of harm that is noncomparative. I'll consider two prominent examples of such accounts: Elizabeth Harman's Bad State Account (Harman, 2004; see also Johansson & Risberg, 2022) and Lukas Meyer's Threshold Account (Meyer, 2003, 2021). To overcome the Nonidentity Objection, the HM needs to be able to use these accounts of harm in a way that generates reparative justice for historical injustice. I'll consider them in turn. Harman's Bad State Account says that an action harms someone when it puts them in a bad state, understood as some objectively bad situation (Harman, 2004). The Bad State Account seems to overcome the nonidentity problem. Agents are harmed by an action when this action puts them into a bad state, even if they would not exist without this action. Low-cost rescue: Suppose you are drowning in your front-yard pond. I'm walking by your house and rush to save you. I save your life but trample your prizewinning manicured lawn in the process. Most importantly, however, even if the Bad State Account was a plausible account of harm, it would not work for the HM of reparative justice. The HM determines reparations based on the harms that result from the wrongdoer's actions. To do so, the HM would still have to determine which bad state harms were the result of the wrongdoer's actions and would not have occurred if not for the wrongdoer's actions. But this means that the Bad State Account is just a version of the Counterfactual Account when incorporated into the HM of reparative justice. The second noncomparative alternative to the Counterfactual Account is the Threshold Account, developed by Meyer (2003, 2021; see also Woollard, 2012). The Threshold Account says that an action harms someone if they are made worse off than they ought to have been, where "ought to have been" is understood in terms of an independent wellbeing threshold. The Account needs to specify this threshold non-arbitrarily. Meyer develops the Threshold Account in the context of intergenerational justice. There, the threshold is specified by a sufficientarian standard: The wellbeing threshold is set at whatever is required to enjoy a minimally good life (Meyer, 2021). When an action makes someone drop below this threshold of wellbeing required for a minimally good life, the action harms them. The Threshold Account may elegantly overcome certain cases of the nonidentity problem, for instance in cases where saving or pollution policies would result in future generations being below a threshold of wellbeing (see Meyer, 2021). However, for our purposes, the Threshold Account faces the following problem: When incorporated by the HM as a theory of reparative justice, it winds up unable to generate reparations for most of the same cases that the Nonidentity Objection prevents. In other words, when incorporated into the HM, it does not produce a significantly different result than the Nonidentity Objection in cases of historical injustice. Notice, first, that the Threshold Account on its own does not seem to offer a plausible account of harm that generates reparative justice when incorporated into the HM. Consider, again, my simple bicycle theft. I steal your bicycle and this intuitively results in a harm to you. This theft, however, does not drop you below the threshold of wellbeing sufficient to achieve a minimally good life. Accordingly, if the HM would use the Threshold Account, it would say that you are not owed reparative justice for the bicycle theft because you are not harmed. To address this worry, one might amend the threshold account needs to use a different threshold. But notice that the problem will persist regardless of where the account specifies the threshold. No matter where the threshold is, we will be able to find a case in which someone is made worse off generally, but not worse off at the threshold at which something counts as a harm. This problem will persist until we set the threshold low enough that any action that makes someone worse off in any way will count as putting them below the relevant threshold. But then the Threshold Account collapses into the Bad State Account considered (and rejected) directly above. To overcome this problem, proponents of the Threshold Account have proposed combining it with the Counterfactual Account (see Meyer, 2021, section 3.2; Woollard, 2012).13 The result is a disjunctive account as follows. An action harms someone if that action either makes them worse off than they would have been or puts them below some independently justified threshold. Call this the Disjunctive Threshold Account. The Disjunctive Threshold Account overcomes the problem above. We can say that you are harmed by the bicycle theft because you are worse off than you would have been even if you are not below a threshold of wellbeing. So it seems the Disjunctive Threshold Account can be incorporated into the HM to generate plausible claims to reparations. However, this Disjunctive Threshold Account cannot be incorporated by the HM in a way that generates reparative justice for historical injustices. Even if the account works for some cases of intergenerational justice, it does not vindicate reparations for historical injustices. If we try to say that present individuals are harmed using the counterfactual disjunct, then the Disjunctive Threshold Account encounters the same problem as the Counterfactual Account. In cases of historical injustice, present individuals would not have existed had the injustice not occurred. Thus, they cannot be counterfactually worse off than they would have been. So, on the Disjunctive Threshold Account, the only other option to say that present individuals are harmed is to say that they are below a threshold of wellbeing. However, in many (if not most) cases of historical injustice that the Nonidentity Objection is meant to challenge, this yields an unintuitive result. Many historical injustices have not put present individuals below a threshold of wellbeing. Consider, for instance, descendants of Jewish victims of the holocaust who were forcibly driven from Nazi Germany and fled to New York. Many of these descendants now enjoy lives above a minimally good threshold. The Disjunctive Threshold Account would say that these descendants are not harmed by the historical injustice and would, thus, not be owed reparative justice according to the HM. The same reasoning applies for any individuals simply above the threshold involved in any other historical injustices. Present individuals are not made worse off than they would have been (since they would not have existed without the injustice) and they are not put below a threshold. In other words, since many descendants of victims of historical injustice plausibly live minimally good lives, the Disjunctive Threshold Account rules out reparative justice for these victims.14 So, the HM which uses the Threshold Account does not vindicate reparative justice for historical injustices any better than the Counterfactual Account. A proponent of the Disjunctive Threshold Account might attempt to make the following argument to vindicate the possibility of reparations.15 Perhaps we can say that present individuals are made worse off by an action related to the historical injustice that occurs after they are born, such as the action of not paying victims reparations (see Butt, 2006; Sher, 2005). Not providing reparations harms descendants of victims because it makes them worse off than they would have been had the reparations been given to their ancestors. This might be thought to salvage the Disjunctive Threshold Account. Present individuals are harmed because they are made worse off by the injustice of not being provided with reparations. And the action that harms them (the action of not paying their ancestors reparations) occurs after they are born. So, present individuals are made worse off by this action. Thus, according to the Disjunctive Threshold Account, they are harmed and are owed reparations. This argument, however, does not provide a way to overcome the Nonidentity Objection. it an action that harms present this action is not an action of the historical injustice. Instead, it is an action related to the historical injustice that is the result of the injustice. However, our goal is to vindicate reparations for the unjust interactions of the historical On the HM this means vindicating reparations on the grounds that the actions of the historical injustice harm present This argument, however, generates reparations for a different action. Reparative justice may be but it is not reparative justice for the wrongful interaction of the historical injustice. it is reparations for some other "fresh injustice" (Butt, 360). The Nonidentity Objection is not meant to reparations for the injustice. The Nonidentity Objection only challenges reparations for the interaction of the historical injustice. This of argument, does not vindicate the kind of interactional reparative justice for historical injustices we are So, the Disjunctive Threshold Account cannot use this kind of argument to overcome the Nonidentity Objection. So, to the Counterfactual Account cannot be incorporated into the HM in a way that also the same as the Nonidentity Objection. We seem to be to accept P2. If an action does not make an agent worse off than the agent would have been had that action not occurred, that action does not harm that Thus, if an event is a necessary condition for an agent coming to exist, that agent is not harmed by the event. says that for all present agents and most historical injustices, historical injustices are necessary conditions for these agents having come to exist. is in the present is a of their having and them at a Historical injustices are so so many and have the of history such that they are necessary conditions for the particular who are in the present having come to exist. It is that the of the in the present would have and their at the same time as if the injustice had not occurred. To take example of slavery. The slave trade was such a of that the such that the present individuals would not have existed had the injustices not occurred. The slave trade in harms including harms to family and any individuals in the present we might take to be harmed by the slave only because the slave trade The of effects is such that had slavery not occurred, no individual would have been at the precise they were such that this particular individual This point applies to who we might say is harmed by the injustice. For any in the present we might say is harmed by the injustice, their ancestors would not have and their at the time they slavery not happened, individual would not have come to exist they cannot be said to be made worse off by the injustice. We can in a way that to of the Objection. historical injustices occur far in the between individuals who do not exist in the present, and have For any individual in the present, historical injustices are necessary conditions for their This is even if you take an or injustice view of the developed by Even if you think the injustice continues into the present, the original interactions that it have still who come to exist. Thus, for any historical injustice and any individual in the present, the historical injustice cannot be said to make that individual worse off. this we the Nonidentity Objection. No agent in the present harms as a result of a historical injustice, so there are no harms in the present that reparations can If reparative justice is generated when a wrong results in harms, and if reparations address these harms, then reparative justice is not required for the historical injustice, is there that reparations would So, reparative justice for historical injustice is not possible. The Nonidentity Objection challenges reparations generated by the HM. To overcome the Objection, we can develop a different model of reparations that does not the problems the HM I'll now develop this The Wrongful Interaction Model of Reparative Justice (1) Something generates reparative justice if and only if it is a wrongful regardless of whether it results in harms, where (2) the content of reparations is determined by the particular features that made the interaction wrong, and (3) only if there exists a party who is morally responsible for the wrongful interaction and a party who is a victim of this We can begin by a distinction between harms and the bicycle you experience a harm when I steal your bicycle. But I also wrong you. I an action that I ought not have your bicycle without your your to of whether or not this action a harm, it is wrong because it with something that ought to have been up to you to This view of the or relational understanding of as for instance, by and This view of says that an action is wrong when it with the things that ought to have been up to the victim to determine from the of This on a on which an agent is owed concern and and ought to be from being used as a means to any other & 2014, that other agents in a way that a of concern or for their are morally Agents stand in a relation with that them to in ways with this concern and A wrong is the of something an agent owes to agent in of this they ought to stand A example of on this is a (and in the things that one is to and to from in to as an When an action with the of a the action is wrongful because the wrongdoer owed it to the victim to the victim determine what could do with the of

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