A troubled inheritance: Overcoming the temporality problem in cases of historical injustice

What are historical injustices? They are not merely injustices of historical significance, such as the trial of Captain Dreyfus. Instead, they are historical in the sense that they occurred in the remote past such that many, if not all, of those directly concerned can neither be brought to justice nor given justice. But historical injustices are also not irrelevant to the present. Indeed, to give a positive account of the relationship between historical injustices and the present is the point of the paper. Some commonly agreed restrictions are worth mentioning from the outset. Historical injustices do not typically represent unsolved common law crimes or ancient wrongful convictions like the case of Captain Dreyfus. Instead, the paradigmatic cases of historical injustices refer to crimes committed by one (or more) groups against other groups, for example, the forced displacement of the Sámi by representatives of the Nordic states, the Spanish colonization of Latin America, or chattel slavery in the United States of America (Nuti, 2019). Moreover, not all groups seem to matter to us. We discuss and care about cases of injustice that concern groups that have some connection to the living (we hardly debate the crimes or suffering of the Carthaginians or the Hittites). Thus, historical injustices are not reducible to academic historical debates about the dead; they are normative debates for the living. Faced with a troubled past, we ask what we should think, feel, and most importantly do in the present. So, when we speak of historical injustices we are referring to acts or events, between groups, that occurred in the sufficiently remote past, such that many of its participants are beyond punishment or reparations. This temporal dimension, referred to by Stark recently as the “temporality problem” (2023) of historical injustices, raises a unique challenge. Whether or not the passage of time lessens the duty to repair (see Sher, 1981; Spinner-Halev, 2007; Waldron, 1992), the fact that wrongdoers and the wronged are no longer with us certainly complicates answers to the question of who owes what to whom?—especially, if are trying to avoid visiting the sins of the parents on their children. This paper aims to address the relationship between the past and the present in the case of historical injustice. We argue that the right account of historical injustice must explain the temporal dimension and relation between groups of the past and the present. To this end, we consider three accounts: the enduring or structural account, the institutional liability account, and the national community account. Due to their shortcomings, we present a novel account of inherited agency based on social learning. Many historical injustices have ongoing effects on the living. Can this feature explain how the present is linked to the past? This has indeed become a popular way to approach historical injustices. We find such views coming from two directions: first from accounts of structural injustices and forward-looking responsibility inspired by the work of Iris Marion Young (Lu, 2017; Nuti, 2019; Spinner-Halev, 2007; Young, 2006, 2011) and from the legal theory on reparations that models historical injustices on class-action lawsuits (Magee, 1993; Matsuda, 1987). Differences aside, these views arrive at much of the same relation of the past to the present via the relative benefits and harms conferred from the past to the present. Structural descendants are significantly connected to (dead) victims of past injustices. Had they been alive back then, they would have suffered from the original form of the injustice (which is now newly reproduced) because of their structural membership; they would have occupied the same position as their (structural) ancestors (Nuti, 2019, 62). Thus, both structural and enduring accounts of historical justice link the past with the present through those who suffer or benefit from said injustice. Such analyses are reminiscent of class-action lawsuits for events that occurred in the distant past. Imagine a chemical spill that occurred near a small town several decades ago. The current owners of the plant, which we can stipulate are not harmed by the spill, owe the present inhabitants of the affected town reparations. That is because the owners of the plant are profiting from its activity and the fact that they never paid to clean up the spill. Present inhabitants of the town are suffering from the ongoing effects of the spill, quite independently of their relation to the original inhabitants. This logic is easy to identify in the arguments for repairing the wrong of slavery in the United States of America (Magee, 1993; Matsuda, 1987). On the class-action view, living generations or populations should address the injustice of slavery because it continues to affect the living where remote historical events continue to have disparate effects (see also Allen Jr. & Chrisman, 2001; Coates, 2014). Undoubtedly, all these views correctly identify one reason why we care about historical injustices. Injustices like chattel slavery, artificial famines, deportations, and colonization still impact present populations. These effects or can or the living. because these accounts on the effects and of historical injustices the original injustices they two by on present suffering and we of the of historical injustices. 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