A troubled inheritance: Overcoming the temporality problem in cases of historical injustice

What are historical injustices? They are not merely injustices of historical significance, such as the trial of Captain Dreyfus. Instead, they are historical in the sense that they occurred in the remote past such that many, if not all, of those directly concerned can neither be brought to justice nor given justice. But historical injustices are also not irrelevant to the present. Indeed, to give a positive account of the relationship between historical injustices and the present is the point of the paper. Some commonly agreed restrictions are worth mentioning from the outset. Historical injustices do not typically represent unsolved common law crimes or ancient wrongful convictions like the case of Captain Dreyfus. Instead, the paradigmatic cases of historical injustices refer to crimes committed by one (or more) groups against other groups, for example, the forced displacement of the Sámi by representatives of the Nordic states, the Spanish colonization of Latin America, or chattel slavery in the United States of America (Nuti, 2019). Moreover, not all groups seem to matter to us. We discuss and care about cases of injustice that concern groups that have some connection to the living (we hardly debate the crimes or suffering of the Carthaginians or the Hittites). Thus, historical injustices are not reducible to academic historical debates about the dead; they are normative debates for the living. Faced with a troubled past, we ask what we should think, feel, and most importantly do in the present. So, when we speak of historical injustices we are referring to acts or events, between groups, that occurred in the sufficiently remote past, such that many of its participants are beyond punishment or reparations. This temporal dimension, referred to by Stark recently as the "temporality problem" (2023) of historical injustices, raises a unique challenge. Whether or not the passage of time lessens the duty to repair (see Sher, 1981; Spinner-Halev, 2007; Waldron, 1992), the fact that wrongdoers and the wronged are no longer with us certainly complicates answers to the question of who owes what to whom?—especially, if are trying to avoid visiting the sins of the parents on their children. This paper aims to address the relationship between the past and the present in the case of historical injustice. We argue that the right account of historical injustice must explain the temporal dimension and relation between groups of the past and the present. To this end, we consider three accounts: the enduring or structural account, the institutional liability account, and the national community account. Due to their shortcomings, we present a novel account of inherited agency based on social learning. Many historical injustices have ongoing effects on the living. Can this feature explain how the present is linked to the past? This has indeed become a popular way to approach historical injustices. We find such views coming from two directions: first from accounts of structural injustices and forward-looking responsibility inspired by the work of Iris Marion Young (Lu, 2017; Nuti, 2019; Spinner-Halev, 2007; Young, 2006, 2011) and from the legal theory on reparations that models historical injustices on class-action lawsuits (Magee, 1993; Matsuda, 1987). Differences aside, these views arrive at much of the same relation of the past to the present via the relative benefits and harms conferred from the past to the present. Structural descendants are significantly connected to (dead) victims of past injustices. Had they been alive back then, they would have suffered from the original form of the injustice (which is now newly reproduced) because of their structural membership; they would have occupied the same position as their (structural) ancestors (Nuti, 2019, 62). Thus, both structural and enduring accounts of historical justice link the past with the present through those who suffer or benefit from said injustice. Such analyses are reminiscent of class-action lawsuits for events that occurred in the distant past. Imagine a chemical spill that occurred near a small town several decades ago. The current owners of the plant, which we can stipulate are not harmed by the spill, owe the present inhabitants of the affected town reparations. That is because the owners of the plant are profiting from its activity and the fact that they never paid to clean up the spill. Present inhabitants of the town are suffering from the ongoing effects of the spill, quite independently of their relation to the original inhabitants. This logic is easy to identify in the arguments for repairing the wrong of slavery in the United States of America (Magee, 1993; Matsuda, 1987). On the class-action view, living generations or populations should address the injustice of slavery because it continues to affect the living where remote historical events continue to have disparate effects (see also Allen Jr. & Chrisman, 2001; Coates, 2014). Undoubtedly, all these views correctly identify one reason why we care about historical injustices. Injustices like chattel slavery, artificial famines, deportations, and colonization still impact present populations. These downstream effects (economic, political, psychological, or social) can advantage or disadvantage the living. Nevertheless, because these accounts focus on the effects and legacy of historical injustices over the original injustices themselves, they face two challenges. First, by focusing on present suffering and advantage, we lose sight of the distinctiveness of historical injustices. Present reactions toward the historical injustices are chiefly important because of their content. Those who are aggrieved about the past are grief-stricken, angry, or heartbroken about what happened in the past. There is a difference between members of the Sámi community being indignant about a historical injustice, like being subjected to racial hygiene studies, and a contemporary injustice like the exploitation of their reindeer-herding land for mining. In the former case, the emotions are about what was done to their ancestors. Relatedly, if the source of a grievance is truly a historical injustice, any recognition and repair of that injustice should not primarily be about attending to the present suffering. But to address a historical injustice we should chiefly address what's at the root of the suffering or reactive attitudes. Otherwise, we are merely offering a form of public cognitive behavioral therapy to cope with the aftereffects of the injustice. This means that an approach to historical injustice that reduces it to a structural or enduring injustice loses its proper focus. As Susan Stark puts it "the obligation to repair historical injustices is rooted in the occurrence of the past injustice, not solely in its expression in current structures, as structural views allege" (2023, 2). Indeed, this explains why living members of a group, at times quite well-off, may still seek official recognition of what was done to their ancestors (Pasternak, 2021, see also Kumar, 2014). Second, structural and class-action views are also limited in scope: they can only address historical injustices if we can also identify living parties that are benefited or harmed. Yet, it is not a conceptual truth that historical injustices must produce these two kinds of effects. Imagine a colonial empire that eradicates a small nation in the Pacific. Now there is no living population that is poorer, suffering from lack of recognition or lower social status since the victim community has been eradicated. Whether the colonists stay or go, there is no heir population to suffer the lingering effects of the injustice. Or imagine that the Israelites completed the genocide commanded by God against the Amalekites (Carroll & Prickett, 1998, 1 Samuel 15:3). In such cases, there is no disadvantaged population that can be made whole. Class-action and structural views presume that there is always a plaintiff and a defendant, but what if there is only the latter? These accounts also struggle to capture plausible cases with unexpected consequences. Consider a variation on the above case where the chief effect of eradicating a small Pacific nation is to severely impoverish their former trading partners. On such a view, instead of responding to the annihilation of a people, we need to focus on the impoverishment of their former trading partners. If what makes present generations respond to past injustices are ongoing consequences, then the poverty of former trading partners should concern the living whereas the actual genocide should not. Worse, it is not obvious who will be worse off due to a historical injustice. The present war in Ukraine might make the Russians worse off in the long run. We neither claim that injustices rarely produce enduring effects in the present day nor that these are irrelevant. Historical injustices that have ongoing effects may be those that have the strongest claims upon us. However, do argue that we cannot reduce all historical injustices to this subset. We note that Iris Marion Young's account of structural injustices may escape these objections because she was skeptical about relying on any links between the advantaged and disadvantaged groups in a structural injustice to ground relations of responsibility. Instead, she suggests a social connection model of responsibility where responsibility is adjudicated in terms of social or institutional roles within a structural injustice (2006, 119ff.). This leads us to examine accounts that focus on institutions to explain the responsibility for historical injustices. Another way to link the past and the present in a historical injustice is by showing that there is a single "person" responsible for the historical injustice that can be brought to justice (Boonin, 2011; Fullinwider, 2000, 2004; Pasternak, 2021; Thompson, 2006). These views tend to focus on state-like institutions, whose legal status and liability exist are distinct from the status and liability of its leaders and members. Leaders and agents of states come and go, but the state, as a continuous legal person, is bound by past agreements. The liability of states mirrors the corporate liability of institutions like firms. Let us examine a concrete case. During the 19th and 20th centuries, the Sámi were severely mistreated by state actors—scientists, courts, etc.—in several Nordic countries. These states sought to enforce their borders, provide land to settlers, and drive economic development. Therefore, they forcibly displaced many Sámi, whose livelihood and way of life centered on herding reindeer, who migrate between the Northern countries (Labba, 2020). In addition, the Sámi were subjected to so-called "racial hygiene studies"; they were humiliated and denigrated by researchers investigating racial mixing (Hagerman, 2015). To link past and present, these accounts identify political institutions as the culprit, for example, the Norwegian or Swedish state. Swedish citizens may not have been alive when this occurred, but they must repair these injustices because they benefit from and partake in the Swedish state. Janna Thompson puts it as follows: "Correcting and repairing injustices is part of what it means to support morally reliable institutions and they have this duty even if they in no way contributed to the wrong" (2006, 263). Citizens bear no personal guilt or responsibility, but until the injustice is (sufficiently) repaired they must do their part to help the state discharge its duty of repair. Many will have noticed that this is very much the reasoning behind war reparations: the party responsible for damages is the state though this means that its citizens pay through taxation long after the generations that fought the war have passed. When it must identify an aggrieved party that is continuous with the past aggrieved group, the institutional liability views no longer look for an institution. Often enough, there simply is no state or institutional actor. The injustices perpetrated against the Sámi did not occur between states since the Sámi did not have one. Nor have Black Americans had a state. For Fullinwider, an advocate of this view, it is sufficient that there is some population who have been adversely affected by the misdeeds of a legal person. We can reliably approximate who they are: "Because the effects of […] racial oppression have been dispersed so widely throughout the African-American community, it makes sense to adopt some scheme of reparations that morally approximates rather than actually effects the restoration of victims to their 'rightful places' […]" (2000, 6). Thus, institutional liability appears to be a hybrid view. On the one hand, it says that a continuous political institution such as a state is the party liable to repair historical injustices. On the other hand, when we turn to the aggrieved party, much of the same reasoning as we saw in the structural injustice or class-action views is employed. Thus, the view cannot avoid (some) objections directed at structural or enduring injustice accounts. Yet, the worst obstacle for the view is precisely its reliance on state institutions as the source of responsibility for historical injustice. On this account, we can only establish a bridge between the past and present by identifying some continuous legal person that can be held accountable. Yet, this view quickly runs into trouble whenever there is no legal institution or a discontinuous one. Consider the establishment of the state of Israel in 1948. True, state liability views allow Palestinians to make claims reaching back several decades regardless of how well they are doing, but the conflict between Jews and Arabs did not start on the day of the foundation, May 14th, 1948. What about even older injustices? There is, for example, good evidence that before May 1948, Jewish paramilitary groups committed crimes against the Arab population. On the institutional liability view, Israelis can only be held responsible for the actions of a continuous institution—their state. This betrays an artificial misalignment between a community's history and its responsibility.1 Analogously, few would be impressed by future Palestinians denying all responsibility for crimes committed against the Jewish people on the basis that they occurred before the establishment of a Palestinian state. In sum, the history of the responsible and aggrieved communities involved in historical injustice seems to come apart from the history of their states, and when they do, the institutional liability view struggles. In the absence of a continuous legal person such as a state, these views stumble. Consider the American case. Whether the "Republic" began in 1776 or 1783, it did not exist for the first Thanksgiving in 1621. Thus, years during which American ancestors may have mistreated slaves or indigenous populations are left out. As Kevin Bruyneel (2021) has shown, it is dangerous to make irrelevant the politically relevant by constructing historical narratives to fit the settler memory and identities. Focusing on institutional responsibility alone while neglecting the responsibilities of groups and individuals that are not directly linked to these institutions seems likely to do so. If our only way to hold present generations responsible is to identify some legal person such as a state, then it appears that the view is underinclusive. It fails to include real or plausible cases where there is no state or it is discontinuous. And yet it seems that we do not have good reasons to restrict the idea of historical injustices and the possibilities of repair to the existence of states or other legal political institutions. We have been searching for some way of relating the past with the present within two groups: those owed repair and those who, in some sense, owe it. As we have seen those who think that membership in purely institutional terms or in terms of being the recipient of certain benefits or harms connected to structural or enduring injustices struggle to account for the distinctive and often noninstitutional nature of historical injustices. One upshot seems to be that we desire a sense in which membership in aggrieved or responsible communities neither depends upon the present distribution of harms and benefits nor the continuous presence of states. This is what membership in a national community view of collective responsibility does (Abdel-Nour, 2003; Butt, 2008; Miller, 2007). On such views, we should focus on grounding the relation between the present and the past and the obligation of repair in the responsibilities of a distinct kind of intergenerational community: the nation. For this view, it is membership in a pre-political community itself that is the legitimate source of collective responsibility. Historical injustices on such views can occur between different national communities (which may or may not have statehood), but they can also occur within a community such as in the cases where one part of the population targets fellow members based on features like disability or gender (cf. Nuti, 2019). Indeed, it is especially in the absence of a state, or when seeking to break away or free from an existing one, that people appeal to their membership in pre-political forms of community (Gat, 2012).2 The challenge for such views is to show that it is truly membership in a nation or pre-political community, rather than the liability attached to membership in a formal state—that explains how collective responsibility emerges and carries over across generations. Like advocates of institutional liability views, defenders of the national community view do not hold living nationals morally culpable or guilty for the misdeeds of their ancestors. Their claim is however that the community as a whole is responsible for ensuring that the nation does what it should or must. The challenge, as they understand it, is to explain why individual members of the nation alive today are responsible for what past members did. According to Daniel Butt, this implies two main tasks: the first is to understand how the responsibility can even be collective (Butt, 2008, Ch. 4 & 5); the other is to understand the basis for assigning membership to intergenerational communities (Butt, 2008, Ch. 6). How can nations be collectively responsible? For Miller (2007, Ch. 5) it comes down to two features of nations. On the one hand, members of a group share collective responsibility because their whole ability to act cohesively as one rests on their members' like-mindedness. Shared action requires shared beliefs, expectations, and values—a kind of expressive and mental ecosystem. A member who shares in this ecosystem then also shares in the responsibility for its outcomes. To be clear, appealing to like-mindedness draws on our communitarian intuitions about shared identity. On the other hand, according to Miller collective responsibility can follow from participation in a fair (enough) cooperative practice. Note that participation is distinct and independent from identity. If one has partaken in a cooperative practice and shared in its benefits, then one cannot refuse to share in its burdens. Just as members of a cooperative firm may draw benefits from their participation, regardless of their attitudes or beliefs, they also must share in wage cuts when the firm is struggling. My claim is that one cannot legitimately enjoy such benefits without at the same time acknowledging responsibility for aspects of the national past that have involved the unjust treatment of people inside and outside the national community itself, and liability to provide redress in whatever form the particular circumstances demand (Miller, 2007, 162). For Miller, we can collectivize responsibility by appealing to either the like-mindedness model or the participation model, or both. Once we have established that nationals, and not only citizens, share in collective responsibility we can argue that they inherited the burden of responsibility from the past because this is the flip side of accepting the benefits conferred by past generations. Similarly, Abdel-Nour (2003) argues that communities of identification and solidarity determine membership in a group or nation. If people identify with their forebears and take pride in their deeds, this implies a level of corresponding national responsibility for deeds done in this collective's name. Again, this is a kind of symmetry argument; if you identify with your ancestors' glorious deeds, you must also identify with their inglorious ones. One problem for the national community view concerns communities that do not present the kind of symmetry of benefits and burdens envisioned by its advocates. This makes it unclear whether they would indeed transfer the right kind of responsibility across generations. In 1917, the Irish did not have a sovereign state. The land—a tangible benefit identified by Miller—is not under their control. The Irish may reap some benefits from inhabiting the land, but they do not control the land like the English control England. The Irish are like tenants in their homeland. Now, if we must accept the burden of responsibility for past generations because we accept the benefits conferred by them, we are faced with an issue. The Irish do not enjoy the same tangible good as the English do—the former lack proper control enjoyed by the latter. Not only have these nations inherited less of a tangible good such as land, but they might also have inherited little capital. Because many nations seem to have inherited few goods or to have inherited them in a lesser form it becomes unclear why living generations should accept responsibility for a possibly what might be a very long list of misdeeds. If this is a symmetry argument, why accept the full weight of the past if the rewards are underwhelming or scarce? Moreover, although the national community view is distinctive from the institutional liability view since it admits that the temporal links of past and present communities need not go via statehood or any other institution, this means it must provide its normative links in another way. But are shared individual features such as like-mindedness, identification, and solidarity truly capable of generating the right kind of normative links that form a basis for duties of repair, let alone generate commitments of group complaints? Butt adds an overlapping generations model where responsibility is transferred over generations because of the moral connections between members at any given time (2008, 184). While this may be a noninstitutional version of the corporate liability model, it is not clear why a generational overlap should provide moral continuity per se. Thus, it is easy to be skeptical about how reliable and normatively important cross-generational overlap and ties among groups such as national communities are. We might also wonder to what extent like-mindedness or cooperative practice are parasitic on things like state systems of education or public institutions. We thus turn to the next section where we argue that what truly matters is that members of national communities inherit a valuable form of group agency through practices of social learning. Our solution to the temporal problem lies in the distinctive inherited and collective agency that emerges within lineages of social learning. This normatively relevant link applies equally to communities that demand repair and those that owe it. Social learning is not something that depends on the existence of states or other institutions. It occurs whenever a rich set of beliefs, behavior, and emotional repertoires are inherited. Too often, we associate learning with institutions like schools. Yet, social learning does not require institutional or explicit instruction. Instead, social learning depends upon a range of practices and activities such as imitation, play, and simply observation where certain skills, beliefs, and emotions are modeled (i.e., not taught) and subsequently adopted by a learner (Heyes, 2012). Social learning occurs in all cultures. Some argue that it is distinctive of what culture is (Richerson & Boyd, 2008).3 Social learning is a powerful force for both inheritance and intergenerational continuity and therefore also relational features like identification, loyalty, and like-mindedness that neither relies directly on biology nor on the existence of certain institutions (though it certainly interacts with them). This rich source of inheritance occurs within national communities and any pre-political communities and often does produce like-mindedness, identification, and loyalty within these communities. But it is a more fundamental feature of a community than that. That is because while social learning promotes like-mindedness and conformity more generally over generations, identification and loyalty among members can lessen over time. This is not a puzzle from a social lineage view since a lineage underpinned by social learning means two things. It implies relative similarity in traits within temporal, geographic, and cultural proximity since we tend to learn to do as others do rather than go at it on our own, that is, through trial and error (Nielsen & Tomaselli, 2010). But social learning also means that over time and space, change is likely to accumulate within a lineage and a sudden uptake of innovations, much like mutations (Sperber & Hirschfeld, 2004).4 Thus, lineages of social learning both underlie and explain what national and pre-political communities are in the first place. This also leads to a striking difference with national community views that rely on identification or like-mindedness as being the more fundamental property of the community. One cannot simply reject one's history of social learning without heavily investing and assimilating with another social lineage. In contrast, identification views struggle since when people simply do not identify or feel loyal to the nation, they seem entitled to reject their belonging in the community rather swiftly (i.e., through simply ceasing to identify or feel loyalty).5 We will also return to the normative implications of our view below. The point for now is that being linked through social learning is more suitable for normative commitments than the linkage that comes about merely via identification or like-mindedness alone—indeed it also explains the emerge of the latter features. We stress that the inheritance transmitted via social learning is not limited to concrete skills and practices, but also includes beliefs about the identity and self-understandings of a community in question, with or without an institutional framework. This also helps explain competing and even dissenting views can exist within a national community. When a Black American writer like James Baldwin (2012) argues that American history is not the history of his community, he is not voicing an idiosyncratic position, but a shared sense of alienation within the Black American community. If he and his community truly did not participate at all in social learning as Americans, if the community belonged to an utterly foreign culture, say, then his complaint would be pointless. But Black Americans do also partake in the same social lineage as other Americans and share many of the same cultural references, while at the same time feeling that their distinctive history and suffering are poorly reflected in the dominant national narrative. Baldwin's anger is precisely intelligible from the perspective of someone who feels (partially) alienated from the chain of social learning to which he belongs. We might say that Baldwin belongs to several social lineages, one as an American and a subsocial lineage as a Black American.6 Indeed, the possibility of being an heir to more than one social lineage is not unique to the American case and explains why many feel especially troubled by historical injustices precisely because they belong to the lineages of the offended and the offending parties. The intergenerational transmission of social learning then explains how national communities, with or without a state, can transmit a sense of cultural identity and self-understanding—including a narrative of how they have interacted with other communities. Contrary to the national community views discussed in the last section, we contend that the links through social learning are more fundamental and our inheritance far richer than a matter of mere like-mindedness or certain goods or benefits from our ancestors. Instead, we inherit a form of collective agency. This includes collectively held claims, such as the right to self-determination or the claim to an ancestral homeland, but also other features due to social learning that become part of the collective agency, such as a set of memories, and reactive emotions. Such agency involves taking seriously what past generations did or endured and even forming hopes of the future beyond one's lifespan. Social learning gives shape and content to our social identity as a group and through the latter, we learn to think and feel on behalf of other group members. As the example of James Baldwin above illustrates it does not mean that others necessarily agree with us or that this spokesmanship is indefeasible (but note that individual agents can change their minds or be of two minds about things). Rather it means that we do not just have self-interests and speak on behalf of ourselves or our close family members, we also have interests in virtue of and speak on behalf of the social lineages of which we are a product and the social identities we come to possess. The inherited agency that comes with social lineages also implies a normative component attached to the agency, namely an associated ledger of moral claims and