When the Devil turns ‘round on you
In 1781, the slave ship called the ‘Zong’ left Africa with 470 slaves bound for the Caribbean. Then, after several weeks at sea, a sickness came, and 131 of the sickest slaves were thrown overboard to save the others. When insurance claims were brought to court, the legal argument was about whether ‘property’ had been rationally jettisoned at sea.
One difference between the Atlantic slave trade and the Holocaust was that during the Holocaust there was no contract of sale. This difference is important because reparations have to be given through legal means, and the radical breakdown of legal norms is an often overlooked factor that enabled the reparations policy that followed the Holocaust.
There is legal precedent in the USA for reparations. In 1988, Ronald Reagan apologised for the incarceration of Japanese Americans during WWII and allocated over $1 billion to cover their claims. But reparations for slavery would mean restitution on a far greater scale, on a far greater timeline, and, and most importantly, of a far greater complexity.
There are two ways through which reparations can be viewed: either as a form of retributive justice, or as an instrument of distributive justice.
‘Retributive justice’ is concerned with actions that in and of themselves merit punishment. Actions are deemed good by virtue of whether there are duties associated with them, rather than by virtue of the consequences of those actions. ‘Distributive justice’ is concerned not with actions in and of themselves, but rather with the consequences that those actions produce, and aims at nothing more than providing the greatest possible good for society.
Reading contemporary commentators such as Ta-Nehisi Coates, John McWhorter, Coleman Hughes, and Nathan J. Robinson, can turn you back and forth on the question as to whether reparations would create a good outcome in terms of distributive justice. However, and irrespective of whether the reparations debate succeeds in persuading on distributive grounds (my opinion, it does not), a legal case for reparations can still be made on the grounds of retributive justice.
We accept deontology, or our ‘duties’ to one another, in the court of law. Human rights exist, for example. We created them; much like we created, post hoc, at Nuremburg. Retributive justice – by definition – results in less good for society than could otherwise be achieved. But it does not – by definition – result in a net negative for society all else being equal, and given this we might want to demand a retributive reckoning between good and evil so as to profoundly express our belief that human beings should be treated equally and live in a distributive system. In other words: we might only be capable of expressing our desire for distributive justice through the practice of retributive justice, (although admitting to the limits of the human condition in this way threatens to flip the argument back into teleology).
Accepting that reparations must be done under a ‘retributive’ rather than ‘distributional’ rubric, does not necessarily end in a vengeful means of wealth distribution. The Robert K. Fullinwider diagram above shows that: the type of reparations that work would never take from white people and give to black people; it would take from citizens, both black and white, before giving to the government, who would then give to black people.
Although we might have to admit that we give up on distributive justice, it might be possible to do the retributive form of reparations and end up with a better but sub-optimum society. However, arguing for reparations on this basis – of first, intrinsic moral worth, and second, the hope that some good will also be achieved – can still provoke several objections.
Any calls for reparations are often met with questions such as: ‘What of the Aboriginal Hawaiians?’ ‘What of the First Nations?’ These slippery questions always come up whatever the form reparations take. Irrespective of the legitimacy of these claims, the USA has already shown itself capable of stopping reparations after they dealt with the Japanese Americans. A more serious demarcation problem concerns the black community itself. Just how much does the USA owe here? Congressman John Conyers Jr. marks every session in Congress by introducing a bill calling for a study into slavery to recommend “appropriate remedies.” The offer has yet to be taken up. But doing the maths has to be done, and there cannot be a blank cheque.
In 1969, the famous black activist James Forman interrupted a service at the Riverside Church with his Black Manifesto, and called for a payment of $500 million “as a beginning of the reparations due to us.” Even though ‘retributive reparations’ relies on the value of the emotional plea itself – “move the needle of justice already!” – it does not mean that it becomes a question of vigilante justice. The law must remain central to reparations, and must determine how this process ends as well as how it begins.
The uncomfortable truth of giving reparations to a generation who are distanced from the harm inflicted upon their ancestors, is that these reparations have to be given in such a way as to ensure that the next generations don’t have a need for these same reparations. Left-wing criticisms of ‘one-time-pay-off-traps’ that don’t acknowledge how reparations only succeed if they aim at being no longer necessary, are as crude as that which they would criticise.
The strongest objection to reparations that can be made though, has to do with BLM.
When Fullinwider outlined how reparations would work, this should have silenced objections based on identity. In the Fullinwider diagram, white people would not be collectivised and sentenced for crimes committed hundreds of years ago, because citizens would be those having to pay. Arguing that reparations would still somehow lead to ‘white guilt’ in this context, would seem to argue that some sort of ‘systemic guilt complex’ already existed, which, coming from the more conservative types, really would be the irony of ironies.
However, BLM has undone Fullinwider’s work. As a consequence of its nature (a hashtag? an amorphous organisation?), BLM seems to have become inextricably associated with the crazy cultural milieu in which we find ourselves. A significant minority of BLM advocates (by which I mean activists that wield power in the movement), seem to be genuinely interested in spreading guilt. They want you to feel it.
Retributive justice has to remain an emotional plea – “move the needle already!” – it cannot be co-opted by calculating identitarians. Nothing about reparations had to be about identity politics, but it has become so because reparations cannot currently be separated from BLM.
The Black Lives Matter Reparations Problem could manifest in manic overspending and the annexation of private capital. It could aim to account for every injustice ever committed in an intersectional groundhog day that lasts forever. I don’t think this likely. The USA has an obligation not only to the Americans that live in it, but also to the lives of Americans who are yet to be born, and I believe enough people know that to tear down buildings and dismantle everything that’s ever been built and start from scratch is as stupid as it sounds.
I think a far more likely and therefore far more sinister BLM reparations problem is that reparations would be hijacked to create systemic guilt through BLM. From the balkanisation of the education system, to the two-stepping in the cooperate departments, to the purges of the newsdesks; BLM haven’t done enough to distance itself (whatever ‘it’ is) from those who aim to politicise everything and turn everyone into a self-informant. Reparations cannot be used to perpetuate cancel culture hysteria and canonise Robin DiAngelo’s ‘White Fragility’.
The problem with reparations in the USA, therefore, is that I don’t trust the movement that has come to call for it.
This is hard to admit because the BLM movement calls out obvious injustice and to say I cannot support BLM because of what some of the movement represents feels like a dishonest betrayal. Furthermore, my mistrust for BLM is tempered by the knowledge that when calls are made for something as radical as ‘defund the police’, it might be that only by the extreme nature of such a demand is there any movement in the system. BLM shifts the overton window. The problem is that I can’t know for sure whether they actually mean what they say, or whether they’re trying to shift the window. When they (and again, who is they?) say ‘defund the police’, do they mean it as a ploy to get shitty politicians to do something for once and reform the police (in ways that would probably require more not less funding)? I don’t know. If yes, then great. If no, then we risk getting swept along the garden path right up until we find out who the they really are.
“So, now you give the Devil the benefit of the law!”
“Yes! What would you do? Cut a great road through the law to get after the Devil?”
“Yes, I’d cut down every law in England to do that!”
“Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, the laws all being flat?”
(So warns Sir Thomas More in ‘A Man For All Seasons’, addressing a particularly zealous witch-hunter.)
It is difficult to advocate for reparations given the zeal with which the witch-hunters are hunting. The problems BLM raise are complex, and the problems of getting reparations done are complex, and the ways these two things intersect are complex; but what is not complex is the fact that reparations are still not popular in the USA.
Reparations at their most simple are just another way to lose to Trump in 2020. Advocating for them now is to play into his hands at a time when he is desperate to turn the news-cycle away from coronavirus and towards a culture war.
More wrongs are accrued when past wrongs go unaddressed. When James Baldwin debated William F Buckley in 1965, he said, “I built the railroads under someone else’s whip for nothing. For nothing.” Obama didn’t help. Trump won’t either.
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