Mr. Foley, a partner in Schwabe, Williamson and Wyatt; practices law in Portland, Oregon.
There is a fashion in foolishness. Silly notions come and go; some are reborn a generation or more apart; others revive in an altered but similarly obnoxious form, parading as something new and wonderful, in reality some thing ancient and wicked.
One such goofy and dangerous concept which has gained increasing currency in this decade is the allegation that the state of today ought to order its creative citizens to grant favors and transfer wealth to less productive persons who suffered (or whose ancestors suffered) a supposed earlier injury at the hands of other people. Not unlike the reparations demanded of the Kaiser and his allies following World War I, this obnoxious social/political theory, currently augmented with equally thoughtless legal justification and seasoned with venal economic voodoo, threatens to become the order of the day. It appears in many guises, and it wears many masks, but at the essence the identical notion and proposed nostrum endures.
Consider some of the costumes worn by this theory of reparations due for past bad acts. The offspring of a late, talented black baseball player whose playing days terminated long prior to 1946 not only laments her father’s inability to show his wares in the major leagues but also seeks monetary recompense for the ancestor’s unfair deprivation. An outdoors enthusiast not only mourns the loss of pristine purity in the lakes and woods adjacent to the city of his residence but also demands sanctions against corporate “polluters” for long-past acts perfectly legal and reasonable at the time of commission. Nisei interned in relocation compounds during World War II receive damage awards funded by taxpayers unconceived at the time of hostilities.
Many of those individuals who believe reparations are due to them or to others present a superficially appealing case. Divers baseball fans would have enjoyed the opportunity to see stars in the old Negro leagues such as Satchel Palge, Josh Gibson, and Cool Papa Bell matched against Babe Ruth, Ty Cobb, and Lefty Grove. Myriad sportsmen and campers feel pangs of grief when they happen upon a changed countryside pejoratively labeled “despoiled.” Numberless men and women of goodwill wonder what possessed Franklin Delano Roosevelt and his henchmen to treat Japanese-Americans so cavalierly. (Incidentally, these same folks often regret Abraham Lincoln’s suspension of the writ of habeas corpus and the concomitant lack of courage on the part of the Reconstruction Supreme Court when called upon to deal with such a salient subject in Ex Parte Milligan, 71 US [4 Wall] 2,18 Led 281 .)
Yet, as is so often the case, removal of the mask of rage and righteousness reveals the consummate evil inherent in the very act of compelling reparations in these or like instances.
First, the common law—the most just system of jurisprudence ever crafted by a fallible mankind—requires fault and causality before granting an award of damages. Further, fault depends upon foreseeability, knowledge, and reasonable ability to avoid harm existent at the time of the act or omission, not upon some subsequently discovered cultural or scientific truth, supposition, or superstition. The actor must adhere only to the mythical standard of the “reasonable and prudent man, under the same or similar circumstances.”
In other words, in order to employ the law to grant P a money judgment against D, P must prove that D acted in a faulty (careless or intentionally wicked) fashion, and that such conduct caused P harm in the mount sought in his complaint. And, the fault component of D’s actions is measured against the standard of the reasonable man at that time: D need not possess the foresight to know what will be discovered next year, next decade, or next century, nor must he fathom decrees of future courts and legislators.
Thus, one might suggest that George Washington’s doctor committed malpractice in bleeding his patient during the first President’s fatal bout with pneumonia in the late 18th century; it would take a great deal of temerity to sculpture a legal system which would allow George Washington’s heirs or representatives to sue the physician’s heirs or representatives in the 20th century and to recover damages for wrongful death based upon the insight gained in the 19th century that bleeding ill patients tends to be counterproductive to recovery and good health. It is equally unseemly to assess damages against Corporation X in the 1980s for cutting timber or discharging waste a century before—particularly where the earlier workmen and officers followed common practice and broke no law. The theory of due reparations simply does not accord with the tried-and-true common law tradition.
Granting Men Their Due
Second, no acceptable theory of justice supports the claim of due reparations. Justice means to grant men their due and no more. It requires unbridled respect for free choice. Given the fundamental premises of justice, the government ought not be in the business of righting wrongs and correcting slights outside of the bounds of the traditional common law.
Indeed, given the changing rules, mores, and knowledge of mankind, and our inherent finity, no entity or individual could come close to comprehending and rectifying any, let alone all, past misdeeds. Face it: few of us can understand past events and unravel their muses; it is doubtful very many could agree upon the propriety or impropriety of most past acts even if it were possible to comprehend all essential factors in the causal chain. And none of us are capable of discerning, securing, and distributing a perfect justice or restitution in these or like situations. Finally, even should a man or woman appear upon the scene, possessed of the ability and willingness to undertake this monumental task, it is an absolute certainty that he or she could never achieve political selection or election to exercise that talent. Thus, those who employ the theory of due reparations not only evade the common law tradition but also prescribe and seek to perform an act which no mere mortal could possibly achieve.
Furthermore, the calumny and calamity of this misguided nonsense doesn’t end here. One cannot achieve justice by the commission of injustice. One does not better the world by stealing from A and transferring those stolen goods to B (less a handling charge, of course), even with the most laudable of motives.
If A carelessly struck B with his automobile, or punched him in the nose, or broke a contractual promise to B, and thereby caused B harm, the common law permits a judge or jury to render a judgment against A and in favor of B for the amount of the loss thus caused, but no more. But neither law nor justice should enable B to take money from a faultless A to compensate for some real or imagined past slight or harm caused by someone else. To do so penalizes A in a most vicious manner; it creates a second injustice in a vain attempt to rectify a presumed first injustice; and, it performs this nefarious activity under a subterfuge of high-sounding words and inspired causes designed to obscure the true nature of the deed.
I don’t control organized baseball; how can I be charged for the misdeeds of men long dead? I couldn’t vote in 1940 or in 1944, and had I possessed the franchise I most assuredly would not have cast a ballot for FDR (or probably for his Republican adversary); how can I be blamed and punished for placing Japanese-Americans in relocation camps? I wasn’t around in 1850 or 1900, so I cut no trees and poured no waste into a pond, nor did I use any good or service supposedly resulting from those activities; how can any person of sound morals assess me for these ancient acts?
The Nisei internment offers an illustration of the deeper wrong occasioned by the squalid theory of due reparations. The government instituted and carried out the relocation program; no private person or entity not linked to the state compelled individuals to leave their homes and property. It is plainly unjust to shunt responsibility for 1940′s individual mistakes unto the shoulders of 1990′s individuals. It is even less commendable to mulct 1990′s individuals for earlier state malevolence, misdeeds which most likely could not have been stemmed by dissenters during World War II given the fact of an oligopoly government directed by Caesars not accountable to any reasonable restraint or common moral code. It would make as much sense if in 1940 Dictator Dan, despite the adamant protests of John, executed Abel for refusing to pledge fealty, and Dictator Dan Junior in 1980 executed John after deciding that Dictator Dan had wronged Abel!
The Duty of Law
The unpleasant treatment of racial, religious, or cultural minorities certainly deserves condemnation, not applause, just as all destructive and ignoble acts should be censured by men and women of goodwill. But, one ought to differentiate between acts and omissions deserving of moral opprobrium and those subject to rectification by the law. The law should punish fraudulent and violent conduct; but no law can aptly prevent discourteous, unkind, and mean-spirited slights. Men and women are not perfect; they behave badly and boorishly, and they generally cannot even agree upon the content of proper behavior. The changing countenance of the law and of the standard code of behavior signify that fact. Even the common law cannot effectively redress grievances deriving from fraudulent or aggressive activities when all essential participants—particularly the aggressors—are dead and gone. A fortiori, one ought not employ normative rules and orders in an attempt to redress mere shabby conduct, no matter how disgusting, particularly in the absence of all salient actors.
The credo of due reparations is both impermissible and impossible. Any taking from a faultless individual for any purpose other than deterrence of aggression and maintenance of a system of common justice necessarily involves an impermissible transfer of wealth and liberty. Any such transfer violates all principles of justice and good morals. Those who order the transfers, and those who accept their benefits, necessarily accept the axiom of “might makes right” and subscribe to the concept that their ideas and choices ought to count for more than the selections of other people—even if those other people created value which must be commandeered from them. Furthermore, the theory of due reparations runs afoul of the positive law, specifically the jural principles undergirding statutes of limitation. An orderly society requires civil peace, harmony, and rectitude, and the com mon law has long recognized that justice and order demand that there be an end (no matter how imperfect) to claims and litigation. Also, it is patently unfair to compel a defendant to answer for an alleged wrong long after the fact, when his witnesses have died or strayed, and his defensive evidence has melted along with human memory and ordinary record-keeping.
For these reasons, the common law developed the doctrines of law of the case, res judicata and stare decisis, and its equity counterpart established rules of laches, all apart from the legislatively prescribed time limits embodied in statutes of limitation. Nonetheless, the theorists of due reparation push onward, unmindful that their late blooming claims upset the civil order and place the putative defendant at a great evidentiary disadvantage. Indeed, most proponents seem oblivious to the incongruity between opening all manner of old wounds whilst the ordinary legal proceeding is time-barred for late filing.
Some suggest that special harms require special treatment. Unfortunately, such exceptions tend to swallow the rule, obliterating all of the age-old rationale for civil order and fair treatment of defendants with it. The very concept and label of “special harm” betrays the subjective value judgment inherent in the proponent: we all have our pet peeves and projects for which we wish “special” treatment. Yet, good sense and sound experience demonstrate that law and justice must he dispensed in an even-handed fashion, “on a fair field with no favor.” It is only when such evenhanded-ness prevails that liberty reigns and its fruits also prevail and redound to the benefit of each of us.
Given these defects and deficiencies in the theory, what do the proponents of reparation seek to accomplish? Nothing less than a reorganization of society in their own image and a sating of their subjective desires at the expense of others whose creeds, ideals, and wants the proponents think should not count in this brave new world.
In sum, the theory of due reparations partakes of the same malady which afflicts all such social action transfers: someone conjures up a “need,” seizes political office, and employs the state powers of taxation, police, and eminent domain to force upon the unwilling populace the conjurer’s notions of “need” and “solution.” Those who pay the freight have no say in the matter, and the politician reaps the benefits provided by the carrying charges necessarily attached to the proposed solution.
1. The criminal-duty-imposing laws against assault, theft, extortion, and other misconduct ought to be sufficient to deter and punish private wrongdoers, And, if the state refuses to enforce criminal sanctions against such malefactors, the public officials should be subject to appropriate civil and criminal liability.
2. One certainly could advance additional arguments against the flawed theory of due reparations. For example, transfer payments which lack a sound legal and moral basis constitute an affront to several economic principles. As utilitarians and other pragmatists have long recognized, transfer payments inhibit the productive process and the creation of wealth by reducing the incentives of both transferor and transferee. The “end game,” as Frederic Bastiat revealed, is the circle of pickpockets, each trying to steal from his neighbor. In addition, while beyond the scope of this paper, one could make the case that a severe psychological societal malaise flows from such beggar-my-neighbor policies. Hence, while I focus here upon common law and common justice, others could make the same point by virtue of alternative reasoning.