Columbia Public Law & Legal Theory Working Papers

Document Type

Article

Abstract

Some claim "slavery did not harm the descendants of slaves" since, without slavery, its descendants would never have been born and a life worth living, even one including the subsequent harms of past slavery, is preferable to never having been born at all. This creates a classic puzzle known as the "non-identity argument", applied to reject the validity of claims for historic justice based on harms to descendants of victims of historic wrongs: since descendants are never harmed by historic wrongs, they have no right to rectification. This conclusion is unintuitive.

This article explains the nature of harm involved in historic injustice, overcoming the hurdle the non-identity argument poses to historic justice claims. Historic injustice and the harms it generates are best understood as group harms. Claims for historic justice can be grounded in harms currently living individuals suffer as a function of the harms their group or community currently suffers as a consequence of historic wrongs. One form of harm, "constitutive harm", differs from the aggregative account of harm assumed by the non-identity argument and is immune to it. It is the type of harm people suffer as members of certain historically wronged groups and communities. Therefore, the constitutive harm people suffer in cases of historic injustice may serve as a basis for justifying claims for historic justice.

Date of Authorship for this Version

March 2008

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