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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