Restitution and Slavery: On Incomplete Commodification, Intergenerational Justice, and Legal Transitions
This Article claims that the very theories that best illuminate law's ordinary treatment of claims for restitution for wrongful enrichment and of cases of legal transition also help address some difficult challenges faced by the recent restitutionary reparation claims for wrongful enslavement. It advances six propositions. First, that because restitution for wrongful enrichment can vindicate plaintiffs' autonomy interests, rather than merely their lost utility, allowing claims for wrongful enslavement need not commodify the horrors of slavery. Second, that in order for wrongful enslavement claims to vindicate autonomy, the applicable measure of recovery should include the perpetrators' ill-gotten gains, rather than (merely) the slaves' lost wages. Third, that where restitution vindicates autonomy, allocating responsibility between defendants is unnecessary, because in such cases each is liable to disgorge its ill-gotten gains. Fourth, that because the question of whether descendants of slaves should have standing in pursuing restitution is, at its core, a concern of transforming the ancestors' inalienable right to control their labor into money, standing should be allowed if the descendants' claim is understood as a vindication the infringement of their ancestors' rights which continuously and directly devastates their own dignity. Fifth, that the restitutionary defense of bona fides purchaser for value can be understood as an alternative, and indeed superior, doctrinal tool to that of limitations in dealing with the difficulty of intergenerational justice entailed by the attempt to redress historic wrongs. Sixth, that past legality (even constitutionality) of slavery need not bar restitutionary claims for wrongful enslavements because legal transition rules at times impose - and indeed should impose - some of the burden of our moral progress on beneficiaries of our past immorality.
Date of this Version
, "Restitution and Slavery: On Incomplete Commodification, Intergenerational Justice, and Legal Transitions" (February 2005). Tel Aviv University Law Faculty Papers. Working Paper 18.
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