Tuesday, December 10, 2013

A Response to Bernard R. Boxill’s Lockean Argument for Reparations

A Response to Bernard R. Boxill’s Lockean Argument for Reparations
Philosophers who ignore the extensive evidence of Locke’s racism and yet still cling to the misguided notion that Locke intended his principles of liberty to be applied universally to all ‘men’ not only are being false to the past and false to the present efforts to shed light upon the history of the racism of Western philosophy, but they are also being false to the future, insofar as efforts to establish a society free from racist institutions will be thwarted until there is greater honesty about the past.” –
Race and Racism in Modern Philosophy - "The Contradictions of Racism: Locke, Slavery, and the Two Treatises" - "Robert Bernasconi & Anika Maaza Mann"- edited by Andrew Valls

The issue of reparations for harms done as a result of slavery and Jim Crow laws is one rife with problems to be overcome.  Problems arise when asking whether reparations should be made, who (or what) should make them and how any culpability for harm should be distributed, to whom reparations should be made, the amount of reparations to be made, and in what manner they should be made, to name just a few.  Bernard Boxill makes two arguments that reparations should be made in A Lockean Argument for Black Reparations using parts of John Locke’s Second Treatise of Government and an appeal to natural law (as opposed to positive law or any other moral or legal philosophy) to justify his position.  Boxill’s arguments that the US government should make reparations to African Americans rely on an ad hoc point of causation while employing sections of Locke’s work that fail to completely incorporate Locke’s theory, leaving unaddressed contradictory or mitigating sections of Locke’s essays.  Furthermore, Boxill’s use of Locke’s just conqueror to justify reparations is incoherent as it stands, relying on assumptions that are not entirely clear and only serve to weaken his argument when that section is given a reasonable interpretation of who is and is not the unjust ruler, just conqueror, and their heirs and assignees.  By taking into account the aforementioned issues, addressing those sections of Locke that Boxill leaves unaddressed, and by showing how the just conqueror analogy he uses actually hurts his argument, this paper will show that Boxill’s arguments are not as strong as they may seem.
The two arguments addressed are the counterfactual and the inheritance arguments.  The counterfactual argument is one that concludes present day African Americans have a just claim for reparation because they are harmed as a result of the enslavement of their ancestors.  The inheritance argument asserts reparations are justified, though current harms are not necessary and the reparations are for the harms done to their ancestors during slavery and Jim Crow laws, and the descendents have inherited the rights to those unpaid reparations (68).  The counterfactual argument is such that if there is ever a time when no harms are being, or have been, suffered by the potential claimants then there would be no right for reparations.  The inheritance argument does not account for current harms so heirs would have a right to reparations in perpetuity regardless of harms they may suffer themselves.  Boxill argues that it seems reparations cannot be sought from those individuals who perpetrated the original harm of slavery, but asserts that a solution might be to hold the U.S. government and individual state governments culpable for such harms (65).  Boxill’s possible solution, though not fully supported by Locke, is a requirement for both his counterfactual argument and for his inheritance argument.
Counterfactual Argument Rebuttal
Boxill continuously forces a perspective that slavery, specifically the effects of US laws that permit the institution, is the first cause.  He addresses a causal chain of harms that will need to be unbroken and his first link in the chain is, mistakenly, the US government: “The injustice or injustices that caused her harms was the U.S. Government’s failure to compensate her parents after her conception, as well as the unjust policies it enacted and enforced to prevent them from recovering from the effects of slavery” (89).  Harms suffered by African Americans today could stem from many potential sources; their own bad decisions, any number of racist behaviors they have been victims of over the course of their lives, the lingering effects of bad social policies (both federal and state) including the criminal justice system, the lingering effects of Jim Crow laws, and the effects, whatever they may be, of their ancestors enslavement and loss of wealth and opportunity as a result of the institution, as Boxill correctly points out.  But the causes do not stop there.  They not only continue from the time of US sanctioned slavery, they continue ever farther back into history to the social institutions of European colonization and imperialism that accepted slavery as a norm in the first place, to the African nations or tribes who may have been complicit in any way to the institution, and to the even more ancient idea that slavery was ever justifiable in the first place.  These *causes* should also serve to distribute the culpability for any harms done as well as dilute the liability of any individual agent for any future reparations even further, which Boxill does not address in his essay.  The problem here is not with whom or what caused the harms suffered today, but with what was the original cause of those causes.  If the moral argument is to be made for reparations to be paid by the US government, it should be made with a full understanding of the idea of original cause.  If original cause is irrelevant then the necessary question becomes what justifies any single interim cause as the cause which justifies reparation so that it is not merely an arbitrary existential target.  Furthermore, if one assumes the harm is from a long chain of causal agents then any reparations should be apportioned between the agents as no single agent can be considered the sole cause of the harms done. 
It seems a strong argument can be made that the result of slavery and Jim Crow laws has been harm for not only African Americans but all the citizenry of the country (admittedly to different degrees and in different forms), at the very least by staining their moral conscience and resulting in the necessity to make reparations.  Had those who are eventually deemed culpable for the harms and the resulting reparations been operating from a position of fully informed consent at the time of the actions which brought harm to themselves and others they would not have made the decisions they made.  For all practical purposes the moral normativity that accepted and justified slavery as an institution existed as a result of ignorance that is not present now, and is therefore like holding a two year old child culpable for accidentally harming an adult, at least as far as the relationship between the actor and ignorance is concerned.  Furthermore, if it is true that there has also been some harm to at least some of the rest of the population, who or what should be held accountable for those reparations?  Should the governments or the people of the United Kingdom, Spain, France, Portugal, or descendents of those who were complicit in the African kingdoms during the period of transatlantic slavery be held accountable?  If so, and if this is morally correct, then they would have the same argument for whatever agency influence they were under that led them to act in such an immoral way, at the time somewhat unknowingly, or so common understanding of what was deemed right and wrong would lead many to believe based on the normative views held during those times.  How far back should this moral culpability go?  Ideally, and for the sake of moral consistency, it should end up finding some causal agent in the mists of antiquity.  If those earlier damages may not be rectified and they were the direct causes of later injuries and harms, it seems somewhat unfair to demand reparations from a party who is also owed reparations for the same or similar morally reprehensible acts who cannot be made whole.  The reparations made from a similarly damaged entity unable to be repaired could be considered an additional injustice in a whole string of injustices.  All of the above is valid as an assemblage of potential criticisms, notwithstanding any arguments dealing with the role of determinism, if any. 
If one sees this argument as specious, ask what harm slavery or Jim Crow laws have done to all African American embryos and newborns.  If damage has not been done to all, then an argument can be made that newborns who have suffered harms have suffered those harms not as a result of slavery or Jim Crow laws, but from intervening causes in the lives of the parents, grandparents, or other ancestors of the child, and not from the two causal elements of slavery and racist laws.  Another argument at this point might be one that claims secondary or tangential harms stem from those two causal targets, and reparations should be made for them.  However, if those elements are deemed secondary or tertiary causes of harms, then the newborn should be able to demand reparations for the harms done by their ancestors as those would be the primary causal agents in this case.  For some reason, this argument has not been found to be addressed in any of the arguments for or against African American reparations.  It also could result in the argument that just because one agent in the causal chain is unable to receive reparations it does not absolve it of making reparations for its part in the harms further down the causal line.  This is a stronger argument from a deontological standpoint (though distribution of liability for harms would still need to be a consideration), but not necessarily from a utilitarian or natural law perspective.
Inheritance Argument Rebuttal
            Notwithstanding causal culpability arguments, Boxill relies on an appeal to Locke’s position on the right to inheritance in order to justify his position for reparations.  In his argument pressing for reparations to be paid by the state and federal governments, he addresses the idea that the governments now may arguably be different from those which were around during the time of slavery.  However, he proceeds to address the idea that the governments “are in all relevant respects the same governments that now exist” (70).  What is relevant is that nations and governments exist over long periods of time, sometimes centuries, and that their identities cannot be tied to the identities of those who make up the governments (71).  This, however, does not show what those relevant aspects are.  Instead, it is a way of disputing the idea that the governments are so different that the culpability for reparations does not presently hold true.  Boxill goes on to claim that this, however, is not enough. He must also show that the citizens have inherited more than they needed to merely be free.  Boxill admits that his ideas, at this point, require the inheritance argument to be repaired in order to justify the position he has taken.  For this he refers to sections 179, 180, and 183 in Locke’s The Second Treatise of Government.
            Locke’s basic argument in those sections is that a lawful conqueror acquires rights and powers over the citizens of the conquered country.  Section 179, speaking of the despotical power the conqueror has, states that it is, “Secondly…only over those, who have actually assisted, concurred, or consented to that unjust force, that is used against him” (111).  Boxill goes on to quote a small part of section 178, without referencing, which asserts the lawful conqueror “has an absolute power over the lives of those, who by an unjust war have forfeited them; but not over the lives or fortunes of those, who engaged not in the war, nor over the possessions even of those, who were actually engaged in it” (111).  As Boxill rightly points out, this is a limiting factor and is more succinctly put when Locke states in section 182 that by conquest one has “a right over a man’s person to destroy him if he pleases, has not thereby a right over his estate to possess and enjoy it,” and, “The right then of conquest extends only to the lies of those who joined in the war, not to their estates, but only in order to make reparations for the damages received, and the charges of the war, and that too with reservation of the right of the innocent wife and children” (113-114).
            Boxill applies Locke’s statements to the question of reparations by positing;
1)     Slaveholders did, in fact, harm slaves.
2)     Slaves had a right to reparation from the slaveholders.
3)     The right of reparation extended to the estates of those who assisted, concurred, or consented to the transgression which caused the harm(s) (74).

Another restriction addressed is that the right to reparation may extend only so far that it would not endanger the lives of the heirs.  Boxill then goes on to require a critical assumption that, “present day white U.S. citizens are the heirs of the slave holders and those who assisted, concurred or consented to their transgressions, and that present day African American are the heirs of the slaves” (76).  His argument rests on this unqualified statement, which he reiterates when he states, “it maintains that the slaves had titles to reparation against the assets of the entire white population, not just against the slave holders.” What is curious here is how he can state that such a claim necessarily follows from what he says is his premise for the aforementioned statement upon which his argument rests, and immediately follows, saying, “this is because most white citizens consented to the government’s support for slavery and consequently entitled the slaves to seek reparation from them” (77)  This immediately demands an explanation as to how the pronoun “them” in his premise, which refers to some, necessarily becomes all in his conclusion.
            Utilizing Locke may or may not persuade others as to whether or not reparations should or should not be paid.  There are some relevant points, however, that should be made.  One such point is the glaring absence of the prerequisite, according to Locke, for what Boxill relied on for his argument in favor of reparations.  While Boxill did, without attribution, refer to a line from section 178, what he did not do was provide the introduction which states, “But supposing, which seldom happens, that the conquerors and conquered never incorporate into one people, under the same laws and freedom.  Let us see next what power a lawful conqueror has over the subdued” (111).  This prerequisite requires that the lawful conquerors and conquered have not incorporated into one people and are not under the same laws with the same freedoms.  The argument against Boxill’s position, which would rely on this prerequisite condition, is that the citizenry of America is “one people” and are “under the same laws and freedom.”  This is not to say that disparities in treatment between whites and African Americans do not exist, but that they are not sanctioned by law, are arguably not based on race, and therefore those disparities do not have the support of the governments involved.
            Another point is that Boxill fails to address, in his analogy of the lawful conqueror and the unjust ruler, which is which and who are their respective heirs.  Does Boxill mean to say that African Americans are the lawful conqueror with the rights and powers enumerated by Locke, and if so, was it the whites who were conquered?  This seems a farfetched claim considering the existential realities of the fight over reparations nowadays.  He cannot mean to say that the current government is the lawful conqueror over the old government which was complicit in slavery as he has already argued that the governments are the same in all relevant respects.  Boxill does not address how the act of conquering would look or what its relevant characteristics would need to be in order for the analogy to be meaningful. As it stands, it seems the analogy does not provide any clarity whatsoever when it comes to how it should be applied to the question of reparations.              
            It has been shown that Boxill’s argument in favor of reparations has some serious failings, if not flaws.  The counterfactual argument has problems when it is conceded, as it should be, that all of the citizens in the U.S. have been harmed to varying degrees and in different ways by the idea of racism, the institution of slavery, Jim Crow laws, and the ways in which our society often fails to account for the injustices that have and continue to exist.  It also requires an appeal to a strictly deontological moral philosophy, whereas a utilitarian one is likely to be more pragmatic and mandate a forward looking perspective regarding reparations, and as a result be more aligned with remedies to class issues than racial issues with the idea being that they are currently intertwined to such a degree that addressing the one is the most effective way of addressing the other.  His inheritance argument also has, as this paper has shown, serious failings.  First, it presents an analogy that relies on a prerequisite that Boxill left entirely out of his argument, which had it been included would have risked the entire argument being invalidated.  Second, the failure to characterize the conqueror, the conquered, and their heirs makes the entire analogy incoherent in relation to the specific issue Boxill is attempting to address.  Even if the argument made perfect sense, Locke had this to say in A Letter Concerning Toleration: “But to come to particulars.  I say, first, no opinions contrary to…those moral rules which are necessary to the preservation of civil society, are to be tolerated by the magistrate” (424).  If reparations are contrary to the moral rules that are necessary to the preservation of civil society, as some utilitarians, pragmatists and legal positivists might claim they are, then they should not be allowed. 
Works Cited
Boxill, Bernard R.. "A Lockean Argument for Black Reparations." The Journal of Ethics 7.1 (2003): 63-90. Print.
Locke, John, and Richard Howard Cox. Second treatise of government. Arlington Heights, Ill.: H. Davidson, 1982. Print.
Locke, John, and David Wootton. "A Letter Concerning Toleration." Political writings. New York, N.Y.: Mentor, 1993. 424. Print.

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