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GEORGE SHER Transgenerational
Compensation
Many people believe that compensation is owed for the effects of certain
wrongs that took place more than a generation ago-the slave trade, for
example, and the appropriation of aboriginal lands. It is also widely
believed that to compensate someone for a wrong is to make him as well
off as he would be if it had not been done.' Taken together, these claims
appear to imply that we owe it to the current descendants of victims of
wrongs done more than a generation ago to (try to) make them as well
off as they would now be if those wrongs had not been done. Although
doing this would require far more counterfactual knowledge than we can
ever have, such compensation remains, in the eyes of many, a com-
pelling theoretical ideal.2 However, according to others, its intelligibility
is compromised by the fact that many descendants of the original
victims who were conceived after they were wronged would not have
I am grateful to Emily Fox Gordon, Donald Morrison, Hanoch Sheinman, the partici-
pants in conferences on historical justice in Berlin and Riverside, California, and the
Editors of Philosophy & Public Affairs, for helpful suggestions concerning this article.
When I presented the paper at the Riverside conference, I discovered that one of the other
speakers, Bernard Boxill, had independently arrived at an argument similar to the one
presented in Section III. Boxill's paper, which has since appeared in The Journal of Ethics,
is cited in another context in n. 21.
1. This view of compensation is succinctly expressed by Anthony T. Kronman: "The aim
of compensation is to put the injured party in the position he would have been in if the
invasion of his legally protected interest had not occurred. So stated, the principle of com-
pensation determines the damages for a tortious injury as well as for breach of contrac-
tual obligation." See Anthony T. Kronman, "Specific Performance," University of Chicago
Law Review 45 (1978): 355-82, p. 360, n. 38. The view is also influential among philosophers;
Robert Nozick's well-known formulation is quoted in the text below.
2. Those who appear to accept this ideal include many who argue that African Ameri-
cans are owed reparations for slavery and its aftermath. Some examples: "What harm was
done to Khalea's nine-year-old friend, and millions like her, was done long ago for profit,
and with her country's complicity. Now it must properly be the country's responsibility to
undo the damage and make victims like Khalea's friend whole." See Randall Robinson,
@ 2005 by Blackwell Publishing, Inc. Philosophy & Public Affairs 33, no. 2
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182 Philosophy & Public Affairs
existed if the wrongs had not been done.3 This fact is said to threaten our
ability to compensate because it seems incoherent to ask how much
better off someone would be in a situation in which he would not even
exist.4
This, clearly, is a fundamental challenge to the ideal of transgenera-
tional compensatory justice. However, although the challenge has been
discussed by various philosophers, myself included, it has received com-
paratively little attention; and neither, in my opinion, has it been ade-
quately met. Thus, with some trepidation, I propose to revisit the issue
here. In the article's first section, I will bring out an unnoticed distinc-
tion between two versions of the problem; in the second, I will criticize
two previously proposed solutions; in the third and fourth, I will open
up a new approach that appears to hold more promise. Although the
new approach does not quite vindicate the intuition that persons can
be owed compensation for wrongs done more than a generation ago, it
does imply that in the great majority of cases that elicit such intuitions,
the current descendants of the original victims are owed compensation
for later wrongs that are non-contingently connected to the original
wrongs.
The Debt: What America Owes to Blacks (New York: Dutton, 2000), p. 223; "Whites owe
blacks money, roughly several trillion dollars.... While most of the debt is owed to poor
blacks, all blacks have been victimized by centuries of economic injustice in ways the
benefit whites in the top 30 percent." See Richard E America, Paying the Social Debt: What
White America Owes Black America (Westport, Conn.: Praeger, 1993), p. 4; "Since millions
of Africans were transported across the sea and enslaved in the Caribbean and America for
more than two centuries, what method of calculating loss will be employed?... [T]he over-
arching principle for establishing loss might be determined by ascertaining the negative
effects on the natural development of people, that is the physical, psychological, economic,
and educational toll must be evaluated." See Molefi Kete Asante, "The African American
Warrant for Reparations," in Should America Pay? Slavery and the Raging Debate on Repa-
rations, ed. Raymond A. Winbush (New York: Amistad, 2003), pp. 9-10.
3. In what follows, I will use the term "descendant" to refer only to those children,
grandchildren, and so on of the original victims who were conceived after the original
victims were wronged.
4. As one of the Editors of Philosophy & Public Affairs has pointed out, it is also possi-
ble to defend reparations not as a way of elevating the descendants of the original victims
of slavery to the levels of well-being that they would have enjoyed in its absence, but rather,
and more simply, as a way to "acknowledge and make up for the wrong done." If this
approach can avoid reliance on the counterfactuals whose intelligibility is in question, it
will not be vulnerable to the threat I have described.
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183 Transgenerational Compensation
In Anarchy, State, and Utopia, Robert Nozick sums up the standard view
of compensation as follows:
5. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), P. 57. As
Nozick states it, this formula does not specify the requirements for the rectification of
injustice because it contains no implication that Y's action A, for which X is to be com-
pensated, was wrong. However, the formula will specify the requirements for the rectifi-
cation of injustice if we replace the phrase "Y's action A" with the more explicit "Y's
wrongful action A"; and I shall from now on assume this substitution to be made.
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184 Philosophy & Public Affairs
Thus, for the typical descendant of a person who was wrongfully harmed
a generation or more ago, there is simply no answer to the question of
how well off he would now be if the original wrong had not been done.
According to the argument I have just summarized, the reason the
actual descendants of the past victims of wrongdoing would probably
not have existed in the absence of the original wrongs is that the rele-
vant sperms would probably not have fertilized the relevant eggs. This
suggests that if, improbably, the same sperm and egg that in fact devel-
oped into one of the actual descendants had also managed to unite in
the absence of the original wrong, then the person into whom the fertil-
ized egg developed would have been identical to the relevant actual
descendant. That this possibility is at least theoretically open is con-
ceded by the (understated) "quite likely" in the quoted passage. By
contrast, the second argument for the non-existence of the current
descendants purports entirely to rule the possibility out.
Because this second argument is generally couched in the language
of possible worlds, I will, in summarizing it, use that language as well.
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185 Transgenerational Compensation
The argument relies on a certain account of the possible worlds that are
relevant to the truth of counterfactuals and a corresponding account of
what makes persons in these possible worlds identical to actual ones. To
identify the possible world that is relevant to the counterfactual "if Ei
had occurred at ti, then E2 would have occurred at t2," the argument asks
us to imagine a world that is identical to the actual world until ti, in
which Ei occurs at ti as it does not in the actual world, and in which all
subsequent events unfold in accordance with the prevailing causal laws.
If in this alternative world E2 occurs at t2, then the counterfactual is true;
otherwise, it is false. Whether a given actual person is identical to anyone
in the alternative world depends on whether that actual person is
transtemporally identical to any pre-ti person to whom some person in
the alternative world is also transtemporally identical. If this condition
is met-if the actual and the alternative world are both "branches" of
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186 Philosophy & Public Affairs
II
Although the two arguments that I just distinguished are not identical in
scope,'0 the success of either would effectively undermine the intelligi-
bility of the vast majority of the counterfactuals that transgenerational
compensation requires. For this reason, some who favor transgenera-
tional compensation have advanced proposals aimed at preserving the
intelligibility of the relevant counterfactuals. Of these proposals, a first
is to build the existence of the current actual descendants of the origi-
nal victims right into the description of the possible worlds that deter-
mine whether the counterfactuals are true; a second is to drop the
requirement that the individuals to be compensated be the very ones
who would have been better off in the absence of the original wrong.
Although I once thought that both proposals held promise, I now think
they both fail. Here, in brief, are my reasons.
The first proposal, which seeks to replace the claim that the relevant
possible worlds are the closest ones in which the original wrongs are
absent with the more complicated claim that they are the closest worlds
in which the wrongs are absent and the descendants of the original
victims exist, has been clearly articulated by A. John Simmons. Here is
how Simmons puts it:
o10. To arrive at a case in which the implications of the arguments differ, imagine an
embezzling victim who does not discover his loss until after his child is conceived. Because
this victim's pre-conception behavior is unaffected by the embezzlement, we may safely
assume that the sperm and egg that in fact unite to become his child would also have
united if the embezzlement had not taken place. For this reason, the first argument does
not preclude compensating the child for the embezzlement's effects. By contrast, the
second argument does preclude compensating the child; for even if the embezzlement
does not affect which sperm unites with which egg, a world in which it does not occur must
diverge from the actual world before the child is conceived. For this reason, that world
cannot contain any person who is transtemporally identical to an earlier person who is
also transtemporally identical to the actual child.
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187 Transgenerational Compensation
11. A. John Simmons, "Historical Rights and Fair Shares," Law and Philosophy 14 (1995):
149-84, at pp. 178-79, n. 41. For further brief mention of this strategy, see my "Ancient Wrongs
and Modern Rights," Philosophy & Public Affairs to (1981): 3-17, at p. 8, and the introduc-
tion to my Approximate Justice: Studies in Non-Ideal Theory (Lanham, Maryland: Rowman
and Littlefield, 1997), p. 5. (The latter work also contains versions of "Ancient Wrongs and
Modern Rights" and "Compensation and Transworld Personal Identity.")
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188 Philosophy & Public Affairs
envision a world from which it is absent but in which little else is (ini-
tially) changed. However, things become far murkier when we try to
imagine the closest possible world that contains the child of two people
who in the actual world were thrown together by the social upheaval
associated with some massive injustice such as the slave trade or the
Holocaust. Where such an injustice is concerned, every close possible
world from which the injustice is absent may also be one from which the
child is absent. If it is, then the question of whether the child is owed
compensation may be radically indeterminate.
An illustration may be helpful here. Suppose that in the actual world,
the father of a child born into slavery was originally abducted by slave
traders from a remote village in southern Africa; and suppose the child's
mother was originally abducted from an equally remote village in the
north. Suppose, further, that until the slave traders arrived, each village
was so isolated that its inhabitants never ventured far abroad. Given the
situation as described, there is no ordinary course of events that would
have led to the child's conception if the slave traders had not appeared.
There are, of course, innumerable possible worlds in which the slave
traders do not appear but the child is nevertheless conceived, but none
are worlds in which "things not directly affected by the wrong [have] in
its absence ... gone on more or less as they in fact did."'2 Because each
relevant world differs from the actual world not only in the wrong's
absence but also in the addition of one or another adventitious sequence
of events sufficient to bring the man and woman together, we find, when
we scrutinize these worlds, that we have no real grip on which one is
closest to the actual world.
For should we say that the closest relevant world is one in which the
man and woman each become the first in their respective villages to set
out in search of adventure, grow wealthy in their travels and meet, and
have the child in conditions that give him a far better life than he has as
a slave? Is it, instead, a world in which the man and woman are driven
from their respective villages by famine and drought, meet after surviv-
ing hardships that ruin the man's health and drive the woman half mad,
and raise the child under conditions that make his lot even worse than
that of a slave? Is it a world in which the slave traders are replaced by
recruiters who lure the man and woman to America where they meet,
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189 Transgenerational Compensation
The other strategy for avoiding the non-identity problem that I want
to consider is that of dropping the requirement that the individuals to
be compensated be the very ones who would have been better off in the
absence of the original wrong. This strategy may seem appealing if, first,
we cannot find a way to refute the claim that many descendants of the
victims of past injustices would not have existed in the absence of those
injustices, but, second, we also cannot rid ourselves of the conviction
that many of those descendants are now owed compensation. To elimi-
nate the inconsistency in our belief-system, we may be tempted to take
the baseline that determines whether the current descendants are owed
compensation to be not the level of well-being that they themselves
would have enjoyed in the absence of the injustice, but rather the levels
of well-being of certain other people who exist either in the actual world
or in the alternative world in which the injustice has not been done.
This is the position I took in the paper from which I quoted above. I
proposed, there, that when a person's low level of well-being can be
traced to a previous wrong in whose absence he would not exist, the level
of well-being that determines whether he is owed compensation is
not the one that he would have enjoyed in any alternative world but
rather that of certain related others: perhaps "the average person or the
average member of [his] society,"'3 perhaps "all the descendants of [his]
antecedents who would have existed if the act which harmed him had
not been performed."'14 However, in retrospect, I think these and all
similar proposals are highly implausible.
What any such proposal would require, but what I see no way of pro-
viding, is a principled explanation of why anyone's claims to compensa-
tion should depend on any facts about the well-being of any actual or
possible others. When a given wrong has caused someone to exist at a
certain level of well-being, the significance of the fact that he himself
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19o Philosophy & Public Affairs
would have been better off in the wrong's absence is to establish that the
wrong has made him worse off. By contrast, neither the fact that certain
other individuals are currently better off than he is nor the fact that
certain others would have been better off in the wrong's absence has any
comparable significance. Even if those who would have been better off
in the wrong's absence are all descendants of the relevant person's ances-
tors, the gap between their well-being and his own would only imply that
the wrong had made him worse off if, absurdly, having the same ances-
tors were sufficient to establish personal identity across possible worlds.
These considerations do not render it incoherent to say that persons
can be owed compensation for past wrongs that have caused them to be
less well off than others; but they do mean that any convincing version
of that claim must be backed by an explanation of why it holds. At least
offhand, the obvious explanations are, first, that wrongs that make
people worse off than others often also cause them to be less well off
than they themselves would otherwise be, and, second, that any inequal-
ities that result from such wrongs are objectionable just in themselves.
However, if a proponent of the current proposal were to opt for the first
explanation, then his account would beg the question against the non-
identity problem, while if he were to opt for the second, then he would
be vulnerable to the objection, advanced by Christopher Morris against
my own earlier essay, that instead of defending transgenerational com-
pensation he has merely "transformed compensation into redistribu-
tion.""5 If there is a further explanation that avoids both difficulties, I
must confess that I do not see it.
III
Neither the strategies just discussed nor any others that have appeared
in the literature seem likely to defeat the non-identity problem. Hence,
the history of the discussion so far may appear to favor the conclusion,
drawn by Morris from the argument's probabilistic version'" and by
Michael Levin from its non-probabilistic version,'7 that the ideal of
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191 Transgenerational Compensation
But being of the same type is not the only way in which injustices done
at different times can be related. A different and more relevant pattern
of relationship is suggested by Jeremy Waldron's observation that
18. Jeremy Waldron, "Superseding Historical Injustice," Ethics 103 (1992): 4-28, at p. 14.
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192 Philosophy & Public Affairs
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193 Transgenerational Compensation
to say that the child would be better off if one of these post-conception
wrongs had not been done, it must also be coherent to say that the child
is owed compensation for that post-conception wrong's effects.
Is the latter claim merely coherent, or might it also be true? To see that
it may well be true, we need only remind ourselves that if the wrong of
not compensating the parent after the child's conception had not been
done, the result would have been an improvement not only in the
parent's level of well-being but also in the parent's ability to provide
for the child. Hence, given only the uncontroversial assumption that
improvements in the ability of parents to provide for their children
are generally accompanied by improvements in what is provided, it
follows that the child probably would have been better off if the wrong
of not compensating his parent after he was conceived had not been
done.
Because the wrongful failure to compensate the parent after the
child's conception has probably made the child worse off, the child may
well be owed some compensation for its effects. However, the question
of how much compensation the child might be owed is trickier; for that
depends on a number of further considerations including (a) how much
better off the parent would have been after the child's conception if the
original wrong had not been done; (b) how much, in addition to what
the parent was then owed as compensation for the original wrong, he
was owed as compensation for the further injustice of withholding it;
and (c) how much better off fully compensating the parent after the
child's conception would have made the child in the normal course of
events. Given the tangle of empirical and conceptual questions that
these considerations raise, the only thing we can conclude with certainty
is that the child is likely to be owed at least some compensation for the
wrongful failure to compensate his parent after he was conceived.
Because this result is so vague, it may seem unlikely that the amount
of compensation that the child is owed for the wrongful failure to com-
pensate his parent will match the amount that we take him to be owed
as compensation for the original injustice. A disparity between these
amounts would be troubling because it would undermine the plausibil-
ity of the proposal that what looks like the child's claim to be compen-
sated for the original injustice is really a claim to be compensated for the
more recent one. However, in fact, there is no disparity; for because there
is no truth of the matter about how much better off the child would have
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194 Philosophy & Public Affairs
19. By thus acknowledging that it is hard to determine whether, and if so to what degree,
any given parent would have benefitted his child if he had been compensated, I may
appear to imply that such counterfactuals are no less indeterminate than the ones upon
which Simmons's approach was seen to rest. However, the problem with the different
stories about how the parents of a child born into slavery might have met in a world
without slavery was that they all involved such massive departures from actuality that no
one of them seemed any better suited than any of the others to support a counterfactual
about how well off the child would have been. For this reason, I concluded that there was
simply no (morally significant) truth of the matter. By contrast, in the current case, the
indeterminacy is merely epistemic: if any counterfactuals can be true-and to deny this
would be to reject the presupposition upon which all claims to compensation rest-then
counterfactuals about what particular individuals would have done if compensated are
surely among them.
20. My reasons can be found in "Ancient Wrongs and Modern Rights." For related dis-
cussion, see David Lyons, "The New Indian Claims and the Original Rights to Land," Social
Theory and Practice 4 (1977): 249-72 and Waldron, "Superseding Historical Injustice."
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195 Transgenerational Compensation
for the first generation after an injustice, then we can also solve it for
each succeeding generation.
IV
21. Some authors, when discussing what is owed to the children of the uncompensated
victims of wrongdoing, have attempted to detach the grounds for compensating those chil-
dren from the claim that they would have been better off if the original victims had been
compensated. Their thinking is that if the original victim was owed a certain amount as
compensation, then that amount is part of his rightful estate and so is owed to his actual
descendants for reasons independent of whether they would have better off if he had been
compensated. This proposal, which has been advanced by Stephen Kershnar, "Are the
Descendants of Slaves Owed Compensation for Slavery?" Journal ofApplied Philosophy 16
(1999): 95-101, and by Bernard Boxill, "A Lockean Argument for Black Reparations," The
Journal of Ethics 7 (2003): 63-91, would if successful enable us to make sense of transgen-
erational compensation without addressing the non-identity problem. However, although
I cannot argue the point here, I strongly doubt that the proposal is successful. To cite just
one difficulty, I think there are serious problems with the claim that the original victim
is morally if not legally the "owner" of whatever compensation he is owed but has
not received. If this claim cannot be defended, then the argument's conclusion, that
the ownership of any compensation owed the original victim automatically passes to
whichever persons are his actual heirs, will not be defensible either.
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196 Philosophy & Public Affairs
At first glance, this rejoinder may not seem entirely satisfactory, since
we can also imagine a case in which the same heart attack or accident
that kills the original victim before the child's conception has the further
effect of determining which sperm unites with which egg. As one of the
editors of Philosophy & Public Affairs has dryly noted, "one might expect
the experience of someone suffering a fatal heart attack during love-
making with you to have some effect on one's pattern of behavior."
However, what follows from this (obviously correct) observation is not
that the uncompensated heart attack victim would have had a different
child if he had been compensated, but only that he would have had a
different child if he had not had a heart attack. This is entirely consistent
with my claim that the actual child-the one who is in fact conceived
after the heart attack-would also have existed, but would have been
better off, if the original victim had been compensated before the heart
attack.
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197 Transgenerational Compensation
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198 Philosophy & Public Affairs
22. A further variant of the heart attack case, in which the heart attack itself is not only
the cause of the relevant sperm's uniting with the relevant egg but also an effect of the
victim's stress at not being compensated, requires different treatment again. At first glance,
this may appear to be another of the cases in which compensating the original victim at
any point while he was alive would have prevented his actual child from coming into exis-
tence. However, as long as there was any interval at all between the time at which the accu-
mulated stresses rendered the heart attack inevitable and the time of the heart attack itself,
there must also be a series of wrongful failures to compensate the victim in whose absence
his actual child-the one who is conceived as a result of the heart attack-would still have
existed but would have been better off. Because the relevant counterfactual can therefore
be true, this variant is not a counterexample to my account at all.
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199 Transgenerational Compensation
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200 Philosophy & Public Affairs
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