Against Restitution
| Published date | 01 October 2003 |
| Date | 01 October 2003 |
| DOI | 10.1111/1467-9248.00440 |
| Author | Richard Vernon |
| Subject Matter | Article |
Against Restitution
Richard Vernon
University of Western Ontario
Recently, states and other institutions have undertaken to make restitution for past abuses. Dis-
tinctions need to be made between various kinds of restitutive practices that rest on quite differ-
ent normative grounds. Moreover, the core idea of restitution, in attaching obligation to particular
historically grounded relationships, is questionable, and what is being attempted is better explained
and justified in terms of a number of standard principles of justice of a non-restitutive kind; for
although there is, in principle, a clear case of restitutive justice, its elements rarely, if ever, exist
in the real world in an unmixed state. Although there are significant objections to deriving local
obligations from principles of universal justice, they have no force in this case. Policies termed
‘restitutive’ may well be justifiable, but they are misdescribed.
In addition to whatever rights we may have simply as humans against other
humans, there are rights that we have against particular others only – ‘special
rights’. Some of these arise from obligation-creating acts, such as making promises
or voluntarily receiving benefits. Others arise from participation in relationships,
such as families or friendships, or, much more contentiously, from membership in
national societies. Yet others, or so some believe, arise from damage suffered by
us, or our ancestors, in the past – possibly in a quite distant past. Of these three
kinds of special rights, the first is the least problematic: although there are meta-
ethical disputes about why acts such as promises are binding, it is surely clear that
if promises in general are binding then particular promises are too (at least prima
facie), and for the same reason. The second kind gives rise to much more dispute,
and not only because of disagreements over what falls within that set – and, espe-
cially, whether nations do; for although some maintain that relational ties, just like
promises, are simply local instances of a universal obligation, such as an obligation
to aid, others maintain that they are a distinct kind of ‘thick’ obligation arising
directly from, or indeed constituting, particular relationships themselves.
But what of the third kind? Many people act and speak as though past injustices
create lasting obligations on the part of the perpetrating group and lasting
rights on the part of the victim group. Alasdair MacIntyre, for example, writes
(MacIntyre, 1995, p. 224):
I will obliterate and lose a central dimension of the moral life if I do not
understand the enacted narrative of my own individual life as em-
bedded in the history of my country ... For if I do not so understand it I
will not understand ... for what crimes of my nation I am bound to make
reparation.
And at the level of practice, in recent years, states and other institutions (particu-
larly churches) have taken up, or have been compelled to face up to, the cause of
POLITICAL STUDIES: 2003 VOL 51, 542–557
© Political Studies Association, 2003.
Published by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
AGAINST RESTITUTION 543
righting past wrongs (Barkan, 2000). These wrongs have been of the most varied
kinds: genocide, slavery and the dispossession of territory; enforced prostitution;
sexual assault; forced conversions; deportations; the enforced and deliberate
deprivation of culture; theft, of money or of valuable objects such as works of
art; the appropriation of human remains or of cultural objects for scientific pur-
poses; persecution for religious or other reasons; acts of war; the internment of
‘enemy’ aliens; unjust taxation or immigration policies; and the failure to help
vulnerable groups in times of great need.1Various kinds of actions have been
undertaken in order to right such wrongs, ranging from the literal return of the
object that was taken (in whole or in part), through financial compensation based
on estimates (somehow reached) of the value of the object, to apologies (or
apology-like acts under various names) with or without accompanying compen-
sation. All these acts are described in the language of ‘restitution’, despite occa-
sional attempts to restrict the use of that term (O’Neill, 1987; Simmons, 1995,
pp. 1n–2n). They are justified as attempts to cancel a wrongful loss, insofar as it is
possible to do so.
Although they clearly pose the same kind of basic question, (supposed) restitutive
ties have been discussed very much less fully by political theorists than have rela-
tional ties. If they exist, should we explain them simply as instances of some uni-
versal obligation – for example, an obligation to remove deprivation – or should
we explain them in the way that moral partialists explain relational ties – as ties
arising directly from a particular connection between two parties? The implication
of this apparently abstract question for practice is important, in at least two ways.
First, if supposed restitutive obligations are simply applications of justice in general,
history falls out of the picture and all that counts is the assessment of existing depri-
vation or unfairness. Second, if history does fall out of the picture in this way, resti-
tutive obligations have no generic priority among the various obligations that
justice may impose. One may naturally suppose that there is a third consideration
too: that whether or not the justice involved is specifically restitutive – or, rather,
is an instance of distributive justice – will have a bearing on the appropriate remedy.
But I will argue below that it is important to distinguish between questions of
liability and questions of remedy.
I argue in this paper for a version of the universalist position and against the
partialist view that bases obligations on historical connections between perpetra-
tor and victim groups. Not one word in this paper is intended to be critical of the
return of land to aboriginal groups; of the monetary payments to the victims of
racism or sexism or assault; or of apologies (if sincere) for the Inquisition, for the
burning of Giordano Bruno or for the Boer War. What the article is against is the
idea that acts of this kind can be thought of as ‘restitutive’. I believe that many
such acts can be justified in terms of the requirements of a handful of familiar
maxims of justice; but I also believe that nothing is gained by entertaining a cate-
gory of restitutive justice, and that in fact much is to be lost, for that proposed
category opens the acts in question to insoluble puzzles and unanswerable criti-
cisms, which – as well as confusing the matter and disguising what is at stake –
effectively tend to undermine the acts in question by resting them upon uncon-
vincing justifications.
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