17.

Historical Injustice
Jeff Spinner-Halev

In 1998 National Sorry Day emerged in Australia after the release of

a government report titled “Bringing Them Home” about the stolen
generations of aboriginal children in Australia. In 2008 the Australian
prime minister apologized to aborigines for past injustices inflicted on
them, including the “stolen generations.” Shortly afterward, the
Canadian prime minister apologized to indigenous peoples for past
government actions that placed their children in Christian boarding
schools with the intent to assimilate them. The U.S. House of
Representatives passed a resolution apologizing for slavery and Jim
Crow in the summer of 2008, while state legislatures in Alabama,
Maryland, and North Carolina all issued apologies for slavery. In
1993 the U.S. Congress apologized for the overthrow of the
Hawaiian monarchy 100 years previously, while in 2009 the
California Parliament apologized for laws that discriminated against
Chinese Americans in the nineteenth and twentieth centuries.

The academy and the politicians are moving in tandem on this issue,
as political theorists and philosophers have increasingly addressed
the issue of past injustices. While a few scattered articles on the
topic appeared in the 1970s, since 2000 a spate of scholarly
literature on historical injustice has emerged. Political communities
need to take responsibility for their past, some charge, by which they
mean that apologies, reparations, or compensation are due to the
injured communities. These arguments typically suggest that if
political communities are to be moral, then they must remember the
past—and not just the past they are proud of but also the parts of the
past that are shameful. Many of these arguments suggest, for
example, that if the United States (or Australia, or Canada, and so
on) is to successfully confront racism, it must confront its racist past.
If we—the dominant political communities in the New World—are to
treat indigenous peoples properly, then we must have a better
understanding and accounting of the past. An apology is often part of
the solution to past injustices, as are reparations and compensation.

(p. 320) Why, however, does the history of an injustice matter? All
injustices have a past, after all. Nahshon Perez defines historical
injustices as those in which all the original wrongdoers, and all the
original victims, have passed away. The wrong is also noteworthy
enough to merit our attention; it is not a minor case of John’s stealing
Jane’s wallet in 1725 in London. It is an event (or events) that we
know took place, so issues of information are not a major obstacle to
understanding the injustice. Historical injustices concern people that
were not involved in the wrong (Perez 2011). I would add that
historical injustices are injuries done to groups; it is the harm done to
many people that commands attention.

Still, many critics of taking past injustices into account say what
should matter is current injustices, not past ones. If an injustice
exists, the political community should be concerned, but why is the
history of the injustice important? Arguments about past injustice
rarely say much about this issue, perhaps because they are case
driven—usually by one of two cases (indigenous peoples or black
Americans). Driven by cases, these arguments rarely develop a
theory of historical injustice. For example, Thomas McCarthy says
his argument about memory and injustice applies only to African
Americans: “The ‘logics’ and ‘dynamics’ of the constellations
associated with the near extermination of Native Americans; the
forceful subjection of the inhabitants of territories conquered from
Mexico; the involuntary incorporation of Native Hawaiians, Puerto
Ricans, and Alaskan Eskimos; and the exclusion or oppression of
various groups of immigrants are sufficiently different to warrant
separate treatment” (McCarthy 2002, 624). McCarthy’s argument is
atypical only in that he notices that other groups besides the one he
discusses are victims of historical injustice. But in typical fashion, his
argument applies to one group, begging a question about much of
this literature: Does it present us with a principled argument or
merely a complaint?

1. Memory
Some advocates of repairing historical injustice suggest that
somehow the past calls us; in other words, we are obligated to
remember its injustices. Pablo De Greiff says, “We have an
obligation to remember what our fellow citizens cannot be expected
to forget” (McCarthy 2002, 629). Similarly, W. James Booth argues
that the “past wants to be remembered.” The past is there for us to
remember, which we are called to do: “In invoking it, and giving it
voice and remembrance, we answer its call. We do not make, or
construct, this past” (Booth 2006, 67). Others argue that nations are
intergenerational communities; their institutions and moral
relationships persist over time and through generations. Members of
these nations rightfully think they made demands on their
successors; the same is true for obligations. A political community
reaches from the past to the future, so we as a political community
are responsible for the past just as it affects the moral character of
our society. In one typical (p. 321) argument, Farid Abdel-Nour argues
that people who take pride in their nation’s achievements are also
responsible for unjust consequences of their nation’s actions: “When
she is actively proud of national achievements in a way that allows
her to imagine herself as having brought them about, she renders
herself responsible for the specific historical actions with which they
were in fact brought about” (Abdel-Nour 2003, 713; see also
Sparrow 2000; Ivison 2002; Thompson 2002; Kukathas 2003;
Weiner 2005; McCarthy 2004). By being part of a community with a
history, we become responsible for that history. Thus, if an injustice
occurred in our political community’s past, then we are responsible
for that injustice, or so these arguments suggest on their surface.

When we are asked to take responsibility for the past, however, it is

not clear which part of the past we are responsible for. We (by which
I mean all people) cannot be expected to remember all historical
injustices. The idea that the past calls us does not tell us which past
is calling. The past cannot be there waiting to be remembered,
because we forget most of it, as we must: “It is impossible to recover
or recount more than a tiny fraction of what has taken place”; the
content of the past is “virtually infinite” (Lowenthal 1999, 214).
History is boundless; it is beyond the recall capacity of any person or
people to remember even a tiny part of history. To remember the
past is to choose to remember a particular past: Remembering
means choosing. The idea that the nation is an intergenerational
community and so in some sense is responsible for past injustices
does not say much about which injustices we should remember or
which past injustices need redress.

Arguments today that suggest that we are, somehow, called to

remember the past overlook the fact that we forget most of history.
How could it possibly be otherwise? Lawrie Balfour argues that the
“story of reparations is centrally a story of memory’s suppression”—
meaning that most Americans are opposed to reparations, because
they have suppressed the memory of slavery (Balfour 2003, 40; see
also Hendrix 2005). But most of history is forgotten, as it must be. It’s
not that the past calls to us; it is that we call to the past—but not just
any past, only particular pasts. Any account of remembering
historical injustice, or of being responsible for the past, must give an
account of which injustices (which pasts) we should recall.

Arguments about a political community’s responsibility for the past

also leaves many historical injustices without an agent to repair the
injustice. The Crimea Tatars were expelled from the Crimea (in the
Ukraine) by Stalin. But Stalin is dead, and the Soviet Union no longer
exists. Does that mean that no one is responsible for addressing the
injustices faced by the Tatars? Similarly, governments are
sometimes radically transformed. Is the Japanese government today,
drastically altered after World War II, responsible for injustices done
to the Ainu (an indigenous people) before the war? One response is
to say that sometimes no one is responsible to help end the injustice,
because the causal agent no longer exists. As Janna Thompson and
Chandran Kukathas state, if the communities that committed the
injustices disappear, then there is no agent responsible to help fix
the injustice, and there is nothing to be done (Thompson 2002, 76;
Kukathas 2003). One might think that the skeptics of repairing
historical injustice would use this argument—the number of (p.
322) governmental changes through time is one more reason to focus
on current injustices, regardless of their historical roots. Why,
however, should the vagaries of history be an excuse to allow an
enduring injustice to fester?

It is not clear why a responsible agent for the injustice must be found
to have a political community responsible to correct the injustice. A
country such as Sweden may have refugees from Bosnia or
Somalia, and Sweden may have little responsibility for causing their
exile and impoverishment. But once they are part of the Swedish
political community, isn’t the political community responsible for
1
helping the refugees live decent lives? Justice does not mean that
people or communities take responsibility for the past but rather that
political communities take responsibility for the present and future.
This does not mean that the history of an injustice is unimportant, but
it does mean that using history to find the causal agent for the
injustice is not particularly helpful.

2. Reparations
Arguments for reparations might seem more promising on this score,
because reparations focus on particular injustices. We know that if
the thief of a stolen bicycle is found, reparations would mean
returning the bicycle in the condition it was taken, or the equivalent—
money equal to what the bicycle, or a similar bicycle, was worth. Yet
how can we determine the compensation or reparations for an
injustice done decades or centuries ago to many people? The
problem might be worse than it seems: Christopher Morris argues
that it is likely that if the injustice in question did not occur, then the
descendants of the victim of the past injustice would not exist
(Morris 1984). If slavery did not exist, for example, the descendants
of slaves would not exist. This is true for even less obvious
examples, as any small injustice will affect the victims’ procreation.
Hundreds of millions of sperm cells are contained in a male’s
ejaculation so “any trivial difference affecting conception would …
[bring] it about that a different individual is conceived” (Morris 1984,
177; see also Wheeler 1997; Kershnar 1999). Not only is the amount
of reparations hard to determine, but the descendants of the victims
of the past would not exist but for the injustice.

A rare response to this nonidentity problem dismisses it for leading

to absurd conclusions. Daniel Butt agrees that it is unlikely that the
exact children born shortly after the Bhopal or Chernobyl disasters
would have been born if these disasters did not occur. Perhaps we
can even say these children owe their existence to these disasters.
Yet Butt poignantly asks, “Would anyone seriously argue that, in the
event of their suffering health problems, they should not be
compensated on account of the non-identity problem?” (Butt 2009,
106; see also Simmons 1995, 178–79). These children were harmed
by an injustice, and so they are owed rectification for this harm. What
we can say is this: If these unjust acts did not take place, then
almost certainly fewer children in the area of Bhopal or Chernobyl
would have health (p. 323) problems than currently do, which is
sufficient reason for compensation to be owed to the victims.

A different response, pursued by Andrew I. Cohen and George Sher,

is to argue that injustices are sometimes passed on to each
generation anew. We can assume, Sher and Cohen suggest, that
parents want to support their children and that in fact they have a
duty to do so. An injustice done to parents that inhibits their ability to
care for their children as well as they would have otherwise been
able to is then also an injustice to the children. The injustice done to
the parents also harms the children, and so the perpetrators must
also compensate the children. This compensation is not endless;
once the children have reached a certain level of welfare that is
sustainable over time, the claims for redress fall away. A child whose
welfare falls below a certain minimum because her parents are
unable to provide sufficiently for her due to an injustice inflicted on
them is also a victim of that injustice. If as an adult she suffers
because of this welfare deficiency—which is due to an injustice done
to her parents—then she is owed compensation from the perpetrator
of the injustice; in this way compensable claims for injustice are
passed down through the generations (Cohen 2009; see also
Sher 2005).

How can we determine who deserves compensation? If the problem

is that some people’s ancestors suffered harm that may have been
passed down, how are we to determine which people today deserve
reparations? If it is just a few individuals, perhaps careful
genealogical research may solve this problem—or it might
complicate the matter, as victims of injustice may marry nonvictims.
But none of the advocates of reparations suggest such a route.
Rather, implicitly and often explicitly, they have certain social groups
in mind, usually African Americans. Cohen suggests that if the
descendants of victims are under some level of welfare (“W”), then
we can assume they are due compensation. Cohen talks about Luke
and Jill and others in his argument, so it is unclear how the argument
transfers over to groups, which is clearly what he has in mind.
Indeed, at the end of his article he discusses black Americans, as do
nearly all arguments for reparations (Cohen 2009, 102). Yet how do
we move from Luke and Jill to white and black Americans? If some
Irish Americans are poor, do they have a claim for compensation? If
they do, is the claim against the descendants of Irish landowners?
the Irish government? the British government? the U.S. government?
We could, of course, extend this query to all poor people, trying to
determine how they arrived at their impoverishment. Trying to do so,
though, would be nearly impossible in large societies with millions of
poor people. This explains why the move to groups makes sense as
a practical matter, but Cohen does not explain how his argument can
work for groups. What if some members of a certain group seen as
impoverished do not live in poverty? What if some members of a
group generally seen as above baseline “W” are in fact below it?

Cohen notes these kinds of problems in reparations arguments:

There are “determinacy problems,” “counterveiling moral
considerations,” and so on to weigh (Cohen 2009, 102). It is hard to
determine how an injustice done centuries ago affects one particular
person today. Yet Cohen dismisses the difficulties in doing so,
because in “most cases of plausible reparations claims, many
generations of people (p. 324) have suffered needlessly under the
yoke of subjugation and now languish in penury” (Cohen 2009, 102).
This may be the case, but then why is the argument not that the
American political community should focus on the injustices that
black Americans face because they face them now? If the injustice
that black Americans face now is enough to ignore the frustrating
details in determining how people today are responsible for past
injustices, why are the injustices that black Americans face today not
enough to say that we should work to end this injustice? Cohen
argues that compensation is due if the descendants of injustice fall
below a certain baseline of “W.” Yet once we revert to a baseline,
why does the history of the injustice matter? Most reparation
arguments suggests that anyone below a certain minimum deserves
compensation if their low economic status is below “W.” If that is the
case, why does it matter if we can trace the reason for being below
the minimum to an injustice that took place many years ago, if we
can in fact do so. We can simply say that all people below this level
“W” are owed assistance.

One possible way around this objection is to argue that those who
benefit from an injustice should pay for it. This argument answers
one common objection to repairing historical injustice: Some people
argue that their ancestors were not living in the country when the
injustice took place, so they are not responsible for any costs
incurred. Some advocates note that members of the dominant
community in the United States benefited (and benefit) from the
forced labor of slaves: “Our national inheritance was to a large
degree unjustly acquired at the expense of African Americans. The
issue is not whether someone has personally benefited from slavery,
but if they share in and benefit from an unjustly acquired and unfairly
distributed national inheritance. This is not a matter of collective guilt
but of collective responsibility” (McCarthy 2004, 758; see also
Robinson 2001; Butt 2007). The symmetry between unjust
acquisition and responsibility is attractive, but not all past injustices
caused economic gain. It is not clear that the Ottoman Empire (or
Turkey) gained economically from the Armenian genocide, or that
the expulsion of the Tatars from the Crimea was economically
beneficial. In other cases, it may simply be impossible to determine
the economic gains or losses. It may also be the case that the
ancestors of both the perpetrators and victims gained economically
from the historical injustice. The economic gain argument also
sidesteps the fundamental reason for the injustice. If African
American slaves were found to have contributed little to the overall
American economy, would that make slavery any less just? The
radical injustice of slavery, of snatching people away from their
families in Africa, of sending them on a journey to the United States,
where many were killed, of selling people to others who had
complete control of them—these radical injustices remain apart from
whatever economic gains were received from slaves.

A different reparations argument focuses on the original injustice.

Robert Nozick argues that if a holding is originally just, and is
transferred by just means, then under most circumstances its current
owner has a just claim to the property. If the original holding is
unjust, or if a transfer is unjust, then reparations are called for. In
Nozick’s account, justice and agency are closely intertwined. If you
have less than others—if you live under conditions of inequality—
that in itself is not a matter (p. 325) of (in)justice. Only if someone
wrongly took some of your or your ancestor’s holding has an
injustice occurred. A welfare baseline is usually not a concern for
Nozick. Yet how reparations are calculated, or what to do when
nearly all holdings in a country are unjust—as most are in nearly
every country in the world—is not addressed by Nozick in his
remarkably brief comments on the subject, given how little property
is justly held in the world today according to his theory. Nozick does
say that in the case of large injustices the principle of rectification
might call for transfer payments from rich to poor, but then he leaves
the issue dangling, calling it complex and the proper subject for a full
principle of rectification, which he does not offer (Nozick 1974, 152,
231). One of the few interpretations of Nozick’s rectification
principles argues that given the ubiquity of injustice in the world,
Nozickean rectification most likely leads to an egalitarian
redistribution of entitlements (Litan 1977).

Other compensation arguments are more specific than Nozick’s. In

one of his arguments for reparations, Bernard Boxill states that
compensation for the unpaid labor of slaves deserves to be repaid; if
the original victims are now dead, the right to compensation is
inherited by their descendants. It does not matter, Boxill argues, if
the descendants are now well off: “The inheritance argument,
however, would be unaffected if slavery’s long reach had ended
some time ago and it no longer harmed the black population. It relies
on the assumption that the U.S. Government owes the present black
population a debt for an unjust loss it helped to cause, and such a
debt is not revoked just because the creditor has recovered from the
loss and is prosperous” (Boxill 2003, 69; see also Westley 1998,
465; Hill 2002, 411–12). This argument is about unpaid labor; the
labor stolen from slaves is owed to their descendants. If the slaves
die with a debt owed to them, their descendants inherit that debt.

Yet the labor of many people other than African Americans was
exploited during the nineteenth century. Many people were appalled
at the working conditions in the industrializing world. With the
backing of the American state, sweatshops thrived, and unions were
treated harshly and sometimes violently (Foner 1977; Savage 1990;
Papke 1999; Stowell 2008). This is not to compare the injustice
inflicted on slaves to workers but to say the wealth of all developed
countries was built on the backs of many different people and
through many different kinds of oppression. The problem with the
debt argument is similar to the problem that besets the argument
about the importance of memory and taking responsibility for the
past: No attempt is made to determine if the general principle of
compensation for exploited labor is actually generalizable. In a world
full of past injustices, any argument that suggests the importance of
historical injustice must have an account of which injustices from the
past should be of concern today. Given the scarcity of resources and
the large numbers of past injustices, attempts to pay reparations for
all past injustices could quickly detract from society’s ability to
address current injustices. Yet why should dead victims of injustice
be given a priority over living victims of injustice (Perez 2011)? In
fact, no advocate of repairing historical injustice actually makes such
an argument, probably because it is present injustices that motivate
much of their argument, as discussed below.

(p. 326) 3. Time and Injustice

A common argument against rectifying historical injustices is that the
passage of time changes how we should think of older injustices.
These arguments suggest that the world changes over time in ways
that either make the consequences of past injustices hard to
determine or that undoing these injustices results in a new set of
injustices. Land changes hands in the normal and just course of
events, and for different reasons. David Lyons argues, for example,
argues that the Lockean proviso invoked by Robert Nozick means
that Native Americans would have had to share their land with the
Europeans that came across the ocean (Lyons 1977). Lyons does
not excuse the way Native Americans were expelled from their land,
but he does argue that the need Europeans had for more space, and
the considerable land used by the relatively small population of
Native Americans, does suggest that justice means the latter had an
obligation to share their land with Europeans. When Native
Americans press claims for the loss of their land, however, some
presume that they have a just claim to all of their land. Lyons’s
argument suggests that it is hard to determine what their just claims
to land would be today. We cannot assume that a just holding
centuries ago would be, absent an unjust taking in the interim, a just
holding today. Intervening factors might mean that justice would
compel the land to be distributed differently than the just holdings of
centuries ago.

Similarly, Jeremy Waldron argues that there is no reason to think if

certain historical injustices did not occur that we would now be living
in conditions of justice: “Are we so sure that a smooth transition,
untainted by particular injustice, from some early nineteenth-century
status quo ante would leave us now where we actually want to be?
Quite apart from particular frauds and expropriations, things were not
marvelous in the nineteenth century…. Why take all that as the
baseline for our present reconstruction?” (Waldron 1992, 14).
Further, many indigenous peoples took land from one another in
unjust ways. The Aztecs, for example, excelled in warfare, and they
conquered many peoples and forced them to pay tribute. They did
not rule with modern conceptions of justice in mind. Focusing on
particular historical injustices overlooks the ubiquity of (past)
injustice. Waldron also argues that there is no fact of the matter
when it comes to land that was unjustly taken. We do not know what
would have happened if land was not taken unjustly from indigenous
people. We cannot know how free people will use (or would have
used) their freedom: “Would they have hung on to the land and
passed it on to future generations of the tribe? Or would they have
sold it—but this time for a fair price—to the first honest settler who
came along?” (Waldron 1992, 14). Also, who knows what the settler
would have done with the land? In other words, we do not know what
would have happened if this particular injustice did not occur.
Similarly, George Sher argues that the case for compensation fades
over time because the epistemological indeterminacy of the
counterfactual becomes greater as time passes (Sher 1981). If an
injustice occurs, the relevant comparison for compensation is not
how well off the person would have been if the injustice did not occur
compared to having (p. 327) nothing. Rather, just as we would expect
that the person would work to make the most of his or her life without
the injustice, we should expect the same with the injustice occurring.
Although an injustice may be a setback, the effects of this setback
may become smaller over time, to the point that it no longer exists.
Sher is clear that his argument applies to ancient wrongs; he is more
sympathetic to more recent claims—which apparently means three
2
or four centuries—for compensation for historical injustice.

Waldron also argues that some injustices cannot be reversed without

committing another injustice. If people are forcibly expelled from their
land, for example, those who immediately occupy it may be
committing an injustice. Over time their children and grandchildren
(and so on) may very well develop deep attachments to the land;
their liberty and identity may be intertwined with this land. To take
away someone’s land because of an injustice committed decades or
centuries earlier is to commit another injustice no more defensible
than the first (Waldron 1992, 14–19). Daniel Butt responds to this
argument by questioning why we should assume that the severity of
a past injustice fades with time (Waldron 1992, 14–19). While
Waldron argues that over time people’s lives adjust to the
circumstances created by an injustice, perhaps the injustice has
lasting effects—so people have adjusted, but badly.

Still, these arguments point to the difficulty in determining how to

repair past injustices. Given the ubiquity of past injustice, one could
say that everyone has adjusted to living in a world affected by
injustice. Given this, one can easily accept the idea that what should
matter are current injustices; after all, there are plenty enough of
those to worry about.

4. Enduring Injustice
The problem with arguments that focus on past injustices is that they
do not explain why the history of the injustice matters.
Unsurprisingly, many reparations arguments speak about the
present as motivating their arguments. The typical reparations
arguments begin with a list of the current inequalities between black
and white Americans—the large differences in income, wealth, living
conditions, and educational opportunities (Magee 1993;
Westley 1998; Brophy 2008). The argument then moves to an
explanation of these gaps, which is found in history: “It is impossible
not to link the continuing economic disparity between the races to
our history of race-based economic exploitation begun in slavery and
continued through discrimination” (Magee 1993, 876). Another
typical argument suggests that until the racial gaps on the measures
of education, health, income, and wealth close, the debt from the
past injustice of slavery and racism has not been paid (Valls 2007;
see also Brooks 2004). If the racial gap did not exist, the implication
is, then the past injustice would not matter. If black Americans did
not suffer from current injustice, (p. 328) there would be little call for
reparations. Reparations are called for because
of current conditions, not because of the past, though this issue
3
remains confused in many reparation arguments.

As Leif Wener correctly points out, if there is not a current injustice,

the advocates of reparations would not make their case
(Wenar 2006). Wenar’s observation may very well explain Lawrie
Balfour’s argument that “reparations could create a basis for
attacking the deep economic inequality Du Bois understands to be
incompatible with democracy” (Balfour 2003, 41; also see
McCarthy 2002, 641). There are few calls for reparations for the
Hugenots, who were alternatively massacred, left alone, and then
drastically oppressed in France, until most fled to neighboring
countries. There are few calls for reparations to Chinese Americans,
who were also victims of great oppression: “No variety of anti-
European sentiment has every approached the violent extremes to
which Chinese agitation went in the 1870s and 1880s”
(Higham 1963, 25). Lynchings, riots, massacres—Chinese
Americans faced these and more. “Decades of anti-Chinese
violence, segregation, and discrimination” culminated in the Chinese
Exclusion Act of 1882, which outlawed most Chinese immigration
and made it impossible for Chinese immigrants to become
naturalized citizens (Chen 1980, 129; see also Pfaelzer 2007).
Because these groups do not suffer from any injustice today, few
think of them—or the many other groups that suffered from injustice
in years past but no longer do—when the topic turns to historical
injustice.
I have argued here that past injustices alone cannot be the reason
why an historical injustice is a problem today, but it is also not right to
say the history of an injustice never matters. Instead of using the
past as a way to determine causality when thinking about historical
injustice, we need to refocus the issue, in part by stitching together
some assumptions made in the historical injustice literature as a
springboard to reconceptualize the issue. There are no arguments
that suggest all historical injustices are a challenge for a political
community to solve; the historical injustice literature has focused on
current injustices that have a long history that connects to the
present. These arguments focus on groups that were victims of an
injustice long ago and that still suffer from injustice. This suggests
that the issue is not just past injustice but rather one of enduring
injustice. Enduring injustice has an historical and a contemporary
component. All enduring injustices are also historical injustices, but
the reverse is not true, because some historical injustices no longer
persist today. The Chinese Americans are victims of historical
injustice but not enduring injustice. The reason why the examples of
indigenous peoples and African Americans are so powerful is not
only that they have suffered from injustice in the past but also that
these historical injustices continue in the present.

Four criteria define an enduring injustice. First, there is good reason

to think the present injustice is in important ways connected to past
injustices. Causality arguments that stretch through decades or
centuries are often hard to prove, but we can make reasonable
suppositions. One could argue that the misery of Native Americans
was caused by American policies that pushed indigenous peoples
aside, shamelessly broke treaties with them, treated them harshly,
and so on. Yet we do not (p. 329) know what would have happened if
Americans treated indigenous peoples with more respect and
decency; it is hard to imagine that the traditional indigenous way of
life would have survived once whites took to industrialization. It is
likely that if indigenous peoples were treated with more respect, they
would have had more control (not complete control) of the
transformative process they encountered, and they would have
wrestled with modernity from a position of cultural coherence and not
decimation. This almost surely would mean that their position today
would be much different and better. Many indigenous peoples are
suffering in many ways, and it seems likely that if they were treated
better by the colonialists and then the Americans, they would be
better off today.

Second, it seems that without a change of course of action, the

injustice will persist. Nearly all the arguments on historical injustice
share this assumption, although this does not mean this assumption
is correct. There is no way to know the future with certainty—it is
possible that imprisonment rates for black Americans will suddenly
plummet, while their educational attainment and income will begin to
rise, but given past patterns, this seems unlikely.

Third, the pattern of past and current injustice will typically lead, in
some cases, to a problem of trust. Trust correctly looms large in the
literature on historical injustice. Leif Wenar argues, perhaps with
some exaggeration, “Justice, taken as relations of mutual recognition
and trust, cannot now go forward in these contexts because of the
lingering presence of the past in the minds” of groups that are
victims of historical injustice (Wenar 2006, 403; see also
Williams 1998; Ivison 2002; Thompson 2002). Mistrust may not be
quite the barricade that Wenar suggests, but it surely makes it
harder to achieve justice. Many black Americans are suspicious of
government attempts to ensure that many children receive routine
vaccinations because of their memories of the infamous Tuskegee
experiment, in which black men with syphilis had treatment withheld
by the U.S. government in order for researchers to follow the course
of the disease (which they did even after penicillin, an effective
treatment, became widely available). Similarly, the Tuskegee
experiment has apparently led many blacks to believe that AIDS is
actually a plot devised by the U.S. government to harm the black
population. It may be that the government will have to work to
overcome the mistrust. (Trust may be less of an issue when the
current government is not recognizably the descendent of the past
government that caused the injustice.)

Fourth, the problem of enduring injustice raises an important

question: Why is the injustice enduring? We can locate this problem
within liberal justice, or rather a failure of liberal justice. Most views
of liberalism see justice (and injustice) through the lenses of fair
procedures, individual rights, equal respect and regard, and the
redistribution of wealth. While this last aspect is rather controversial,
I use here the framework of egalitarian liberalism, which sees large
gaps in income and wealth as violating liberal principles. Many
liberals see one important solution to unjust inequities in terms of
wealth and money, whereas trying to ensure a good education for all
is often seen as another important way to improve the conditions of
the poor (Kymlicka 2001, 83–84). Many forms of injustice are
remedied with the protection (p. 330) of individual rights and a fair
system of justice. Many immigrants, for example, face discrimination
when they first arrive in the United States, but this discrimination
typically lessens over time. Discrimination against women and many
religious groups has, over time, faded in the Western democracies.
One view is that, in the history of liberalism, the idea of religious
toleration came to be seen as a right, and the idea of rights
expanded beyond religious freedom with the rise of the idea of
human rights (Zagorin 2003). What some of these examples show is
that it is not just that the idea of individual rights has spread, but that
many groups no longer face discrimination (or they face less
discrimination than in the past) from their fellow citizens and from
nonpublic institutions. Chinese Americans may still face some
discrimination today, but few doubt their humanity—few think that
they deserve less respect as others—and the discrimination they
face is considerably less than that of their ancestors, while their
economic achievement is much greater.

Yet in cases of enduring injustice, most observers do not think that

the injustice will fade, at least not with the normal liberal remedies. It
may be that the pattern of injustice that began decades or centuries
ago feeds into injustice today. Perhaps the exact form of injustice is
not the same, but one can recognize the injustice today as beginning
some time ago. The origins of the poverty of many Native Americans
can be traced back to pushing them onto reservations, but U.S.
government policies affecting reservations impacted (and impact)
Native American poverty. For example, the policy of ending
communal ownership land worked out badly and probably did more
4
to deepen than to alleviate Native American poverty. Some people
argue that the racism that was built into the American state long ago
still exists and that many of these patterns of racial inequality persist
not only as a vestige of the past but also because institutions
perpetuate them, sometimes wittingly and sometimes unwittingly.
More than forty-five years after the Civil Rights Act, many black
Americans were still impoverished; the incarceration rate of black
men is six times the rate for whites. The issue is not only the
continuation of poverty and the alarmingly high rate of imprisonment
but society’s lack of good solutions to these problems.

In other, less frequent cases, one might say that the injustice against
some groups is an effect of past injustice, even if no one is
perpetuating the injustice today. The Tatars, who live in exile, may
have their individual rights respected, and even if no one
perpetuates an injustice against them now, they may still see exile as
leaving them in a state of injustice. Similarly, some peoples view
certain land as sacred. Hills, stones, and mountains are sometimes
sacred ground to indigenous peoples, such as Ayers Rock in
Australia or the Black Hills in the United States. The Black Hills,
where special ceremonies were performed, are considered sacred to
the Lakota Sioux. The U.S. Federal government agreed to the Sioux
rights to the land in 1850s by treaty; however, after gold was
discovered there, the United States broke the treaty to seize the
land. This land was, and still is, mined. The Sioux eventually sued
and won in the U.S. Supreme Court, which found the treaties that
gave away the land fraudulent. The Sioux were awarded
compensation ($700 million today, including interest) but not the
return of the land. The Sioux have refused to accept the money, as
they maintain that this sacred land cannot be bought.

(p. 331) Liberal courts have a hard time seeing why money is
insufficient compensation for lost land, which is echoed in liberal
theory. In his skeptical argument about historical injustice, Jeremy
Waldron talks about tribal owners of land, wondering if they might
have sold it if it had not been wrongly taken from them. His examples
include his aunt’s inheritance and a stolen car (Waldron 1992, 20).
Lost land, in this view, can be compensated with either money or
different land. What can be lost can be replaced: This is certainly
true for money and cars. Waldron does say that his argument may
not apply to cases “where the dispossessed subject is a tribe or a
community, rather than an individual, where the holding of which it
has been dispossessed is particularly important for its sense of
identity as a community,” but it is hard to put much stock in this
caveat, because the main subjects of Waldron’s essay are tribes
(indigenous peoples) whose identity is very much tied to land
(Waldron 1992, 19). Waldron’s brief caveat is overwhelmed by the
rest of the argument, which is devoted to showing that the land
claims of indigenous peoples have faded over time.

The idea of sacred land also highlights why the history of an injustice
can matter. This is not just about learning from past failures; the only
way to make sense of a group’s attachment to land that they no
longer occupy is through an understanding of history (or, at least, the
group’s understanding of history). The Crimean Tatars want to return
to their land. This normal-sounding sentence, however, is wrought
with moral implications, because many of the people who want to
return never lived in the Crimea. They look at the Crimea as their
ancestral homeland. The idea of sacred land makes sense only if the
idea of collective memory (or narrative) and historical attachments
5
have meaning. If the Lakota had no collective narrative, if the past
did not matter to them, the Blacks Hills would be just another place,
and there would be little problem about selling it. Standard accounts
of egalitarian liberal justice would ask if the Tatars receive unequal
treatment where they live or if their rights are violated. These
questions, though, do not capture the injustice of exile or of
separation from a sacred place. The Tatar homeland is kept alive in
exile by connecting the past to the present (Uehling 2004).

One partial solution to the problem of enduring injustice is offered by

Burke Hendrix, who agrees with Waldron that the land of indigenous
peoples cannot simply be returned to them but then argues that
indigenous peoples should be given the right of first refusal when
their now-occupied lands go up for sale (Hendrix 2008, 49). This
insightful idea makes sense only if injustices done long ago by and
to people who are now dead have some moral weight today. Of
course, one might say that all injustices have a past—if I stole your
bicycle, it is now a matter of history. But if my grandfather stole your
grandfather’s bicycle, it is doubtful that I owe you compensation for
the theft. Yet land stolen from a people has a different character,
which highlights that victims of enduring injustice are groups (and
their members) and not individuals apart from group attachments.
The injustice to individual Tatars and families was their forcible
eviction from their homes. An unjust eviction from one’s home is an
injustice but not a challenge to liberalism or even an enduring
injustice. The collective eviction of a people, however, poses a more
fundamental challenge to (p. 332) liberalism and begs for a group
solution. The injustice to the Tatars as a people is their exile from
their ancestral homeland, and so overcoming it means facilitating
their return in a general way, in ways that do not cause another
injustice.

If the state gives the right of first refusal to a particular tribe, it may
do so without knowing if the ancestors of a particular Native
American family lived on that land. If the past did not matter for
current injustice, if justice is only about the redistribution of wealth
and the protection of rights, then Hendrix’s idea of the right of first
refusal would not make sense. Similarly, when mistrust arises and
becomes a political problem, it is because members of a particular
group feel this mistrust.

The history of an enduring injustice is important because it can help

inform us about the nature of the injustice, particularly when the
issue lies outside the bounds of liberal justice. Mistrust between a
government and a group that is a victim of injustice is often
comprehensible only by taking the history of the injustice into
account. The ideas of sacred land and exile also make sense only if
the history and memory (or collective narrative) of a group matters.
Still, the contemporary focus on injustice by those skeptical of
repairing historical injustice supplies an important corrective to the
idea of historical injustice. What should drive our concern about
repairing injustice are today’s injustices. Of course, there are many
injustices today, and my argument does not insist that enduring
injustices are more important to address than other kinds of
contemporary injustices; how to prioritize the injustices a political
community faces depends on many factors, and I cannot address
that issue here. Yet certainly injustices that have endured for a long
time should, prima facia, be of concern to the political community. To
turn away from a group that has suffered for decades or centuries, or
to tell them that the injustices they face are of low priority, is not
something that should be done lightly. What the advocates of
repairing historical injustice remind us is that while it may be easy to
pass over long-standing injustices because many of us have become
accustomed to them, it is cold-hearted and unjust for a responsible
political community to do so without very good reason. None of this
means that people alive today are responsible for the past. Some
injustices may have their roots in the past, yet if they are present
today, then the issue regards who can help alleviate them now, not
who caused them at their origin. The idea of taking responsibility for
the past too readily invites the response that people alive today are
not responsible for the past; but they are responsible for the present,
and that is reason enough for them to care about injustices that
6
endure in their midst.

References
Abdel-Nour, F. 2003. “National Responsibility.” Political Theory 31(5):
693–719.

Balfour, L. 2003. “Unreconstructed Democracy: W.E.B. Du Bois and

the Case for Reparations.” American Political Science Review 97(1):
33–44.

Banner, S. 2005. How the Indians Lost Their Land: Law and Power
on the Frontier. Cambridge, MA: Belknap Press of Harvard
University Press.

Booth, W. J. 2006. Communities of Memory: On Witness, Identity,

and Justice. Ithaca, NY: Cornell University Press.

Boxill, B. 2003. “A Lockean Argument for Black Reparations.” The

Journal of Ethics 7(1): 63–91.

Brooks, R. L. 2004. Atonement and Forgiveness: A New Model for

Black Reparations. Berkeley: University of California Press.

Brophy, A. L. 2008. Reparations: Pro and Con. Oxford: Oxford

University Press.
Butt, D. 2007. “On Benefiting from Injustice.” Canadian Journal of
Philosophy 37(1): 129–52.

Butt, D. 2009. Rectifying International Injustice: Principles of

Compensation and Restitution between Nations. New York: Oxford
University Press.

Chen, J. 1980. The Chinese of America. San Francisco, CA: Harper

& Row.

Cohen, A. I. 2009. “Compensation for Historic Injustices: Completing

the Boxill and Sher Argument.” Philosophy & Public Affairs 37(1):
81–102.

Foner, P. S. 1977. The Great Labor Uprising of 1877. New York:

Monad Press.

Hendrix, B. A. 2005. “Memory in Native American Land

Claims.” Political Theory 33(6): 763–85.

Hendrix, B. A. 2008. Ownership, Authority, and Self-Determination:

Moral Principles and Indigenous Rights Claim. University Park, PA:
Penn State University Press.

Higham, J. 1963. Strangers in the Land: Patterns of American

Nativism, 1860–1925. New York: Atheneum.

Hill, R. A. 2002. “Compensatory Justice: Over Time and

(p. 334)
Between Groups.” Journal of Political Philosophy 10(4): 392–415.

Hoxie, F. E. 1984. A Final Promise: The Campaign to Assimilate the

Indians, 1880–1920. Lincoln: University of Nebraska Press.
Ivison, D. 2002. Postcolonial Liberalism. Cambridge, UK: Cambridge
University Press.

Kershnar, S. 1999. “Are the Descendants of Slaves Owed

Compensation for Slavery?” Journal of Applied Philosophy 16(1):
95–101.

Kukathas, C. 2003. “Responsibility for the Past: How to Shift the

Burden.” Politics, Philosophy and Economics 2(2): 165–90.

Kymlicka, W. 2001. Contemporary Political Philosophy: An

Introduction. New York: Oxford University Press.

Litan, R. E. 1977. “On Rectification in Nozick’s Minimal

State.” Political Theory 5(2): 233–46.

Lowenthal, D. 1999. The Past is a Foreign Country. Cambridge, UK:

Cambridge University Press.

Lyons, D. 1977. “The New Indian Claims and Original Rights to

Land.” Social Theory and Practice 4(3): 249–71.

Magee, R. V. 1993. “The Master’s Tools, from the Bottom Up:

Responses to African-American Reparations Theory in Mainstream
and Outsider Remedies Discourse.” Virginia Law Review 79: 863.

McCarthy, T. 2002. “Vergangenheitsbewaltigung in the USA: On the

Politics of the Memory of Slavery.” Political Theory 30(5): 623–48.

McCarthy, T. 2004. “Coming to Terms with Our Past, Part II: On the
Morality and Politics of Reparations for Slavery.” Political
Theory 32(6): 750–72.
Morris, C. W. 1984. “Existential Limits to the Rectification of Past
Wrongs.” American Philosophical Quarterly 21(2): 175–82.

Nozick, R. 1974. Anarchy, State, and Utopia. New York: Basic

Books.

Papke, D. R. 1999. The Pullman Case: The Clash of Labor and

Capital in Industrial America. Lawrence: University Press of Kansas.

Parker, L. S. 1989. Native American Estate: The Struggle over Indian

and Hawaiian Lands. Honolulu: University of Hawaii Press.

Perez, N. 2011. “On Compensation and Return: Can the ‘Continuing

Injustice Argument’ for Compensating Historical Injustices Justify
Compensation for Such Injustices or the Return of
Property?” Journal of Applied Philosophy 28(2): 151–68.

Pfaelzer, J. 2007. Driven Out: The Forgotten War against Chinese

Americans. New York: Random House.

Prucha, F. P. 1986. The Great Father: The United States

Government and the American Indians, abridged ed. Lincoln:
University of Nebraska Press.

Robinson, R. 2001. The Debt: What America Owes to Blacks. New

York: Penguin.

Savage, L. 1990. Thunder in the Mountains: The West Virginia Mine

War, 1920–21. Pittsburgh, PA: University of Pittsburgh Press.

Sher, G. 1981. “Ancient Wrongs and Modern Rights.” Philosophy &

Public Affairs 10(1): 3–17.
Sher, G. 2005. “Transgenerational Compensation.” Philosophy &
Public Affairs 33(2): 181–200.

Simmons, A. J. 1995. “Historical Rights and Fair Shares.” Law and

Philosophy 14(2): 149–84.

Sparrow, R. 2000. “History and Collective

Responsibility.” Australasian Journal of Philosophy 78(3): 346–59.

Spinner-Halev, J. 2007. “From Historical to Enduring

Injustice.” Political Theory 35(5): 550–73.

Stowell, D. O. 2008. The Great Strikes of 1877. Urbana: University of

Illinois Press.

Thompson, J. 2002. Taking Responsibility for the Past:

(p. 335)
Reparation and Historical Injustice. Cambridge, UK: Polity Press.

Uehling, G. L. 2004. Beyond Memory: The Crimean Tatars’

Deportation and Return, 1st ed. New York: Palgrave Macmillan.

Valls, A. 2007. “Reconsidering the Case for Black Reparations.”

In Reparations: Interdisciplinary Inquiries. Edited by J. Miller and R.
Kumar, 114–29. Oxford: Oxford University Press.

Waldron, J. 1992. “Superseding Historic Injustice.” Ethics 103(4): 4–

28.

Weiner, B. A. 2005. Sins of the Parents: The Politics of National

Apologies in the United States. Philadelphia, PA: Temple University
Press.
Wenar, L. 2006. “Reparations for the Future.” Journal of Social
Philosophy 37(3): 396–405.

Westley, R. 1998. “Many Billions Gone: Is It Time to Reconsider the

Case for Black Reparations?” Boston College Third World Law
Journal 19: 429.

Wheeler, S. C. III. 1997. “Reparations Reconstructed.” American

Philosophical Quarterly 34(3): 301–18.

Williams, M. 1998. Voice, Trust and Memory: Marginalized Groups

and the Failings of Liberal Representation. Princeton, NJ: Princeton
University Press.

Zagorin, P. 2003. How the Idea of Religious Toleration Came to the

West. Princeton, NJ: Princeton University Press.

Notes:
(1) . I leave aside here the possibility of global responsibility.

(2) . Sher does not explicitly state the time frame for an ancient wrong versus a
compensable past injustice. The main example in his work justifying compensation for
historical injustice is American slavery, which reaches back to the seventeenth century.

(3) . Other backward-looking arguments include Hendrix 2005, 775 and McCarthy 2004,
751.

(4) . The Dawes Act in the late nineteenth century forced most tribes to divide their
communal land into individual plots, which was part of a policy to try to make Indians more
like white citizens (Hoxie 1984; Parker 1989; Banner 2005). This policy ended in 1934, only
to begin again with the unfortunately named Termination policy in the 1950s, which strove to
break up (“terminate”) indigenous tribes by ending their communal control of land; plots of
land were given to some individuals, while others were given money and encouraged to
move to urban areas. Like the Dawes Act, Termination was widely considered a failure
(though it took the U.S. government less time to realize this the second time around), partly
because the cultural structure of some tribes was destroyed (Prucha 1986, 344).
(5) . I prefer the term “collective narrative” to “collective memory.” This is explained in
Spinner-Halev 2007.

(6) . I do not have space here to pursue the argument about responsibility.

Jeff Spinner-Halev
Jeff Spinner-Halev is the Kenan Eminent Professor of Political Ethics at the University of North Carolina at Chapel
Hill.