Posted by: captainfalcon | April 14, 2010

Conceptions of emancipation

Here are three accounts of what the emancipation of slaves amounts to:

1. Emancipation is restitution. Restitution is made, inter alia, whenever something obtained unjustly is restored to its proper owner. With emancipation, entities obtained unjustly are restored to their proper owners (themselves).

2. Emancipation is redistribution. Redistribution is made whenever something not obtained unjustly is transferred to another. With emancipation, entities obtained, but not unjustly obtained, are transferred.

3. Emancipation is not redistribution or restitution because no transfer is made. Emancipation is a declaration recognizing rights, hitherto unrecognized, of a class of person.

I make three points.

First, considering these competing conceptions helps to clarify (perhaps needlessly – it’s kind of a trite point) the difference between restitution and redistribution. Restitution can only be made if there’s some injustice in an object’s history of transfer. Redistribution, however, is possible even if the property has always only been justly transferred (and acquired).

Second, (3) is the correct account. Redistribution and restitution only occur when property is transferred from one party to another. But emancipating slaves amounts to ending their status as property. It renders property nonexistent by conferring on it rights that property cannot have. (Exactly how many rights a piece of property may have and still be called property is an open question. But it’s pretty clear that fully autonomous equal citizens do not property make.)

Finally, bracketing (3), it might prima facie appear that, as between (1) and (2), (1) is obviously more plausible, and (2) is not only false, but odious. At least, it’s awful reactionary to maintain that slaves weren’t unjustly obtained.

This condemnation is too quick because there are two ways in which something can be justly or unjustly obtained. First, the law licensing the acquisition can be just or unjust. Second, the application of the law licensing the acquisition can be just or unjust. To say the law is just is to say it correctly picks out a class of thing that may be acquired. To say the application of the law is just is to say it is “impartially applied to all those and only those who are alike” (Hart, 160). In the case at hand, the application of a law licensing the acquisition of persons is just if it is applied in such a way that (a) it equally licenses all those the law actually picks out as permitted to make the purchases and (b) it licenses them to purchase only that which the law identifies as purchase-able.

There is a sense, then, in which slaves were not unjustly obtained, viz. they were obtained in accordance with impartially applied laws licensing their acquisition. A slaveholder can truthfully say, “I obtained my slaves by following the law. I profited from no cronyism – my acquisition was in accordance with an impartially applied law. It was not unjust.” (At least, in other contexts, this kind of rationale is thought to be sound. If a law that takes firearms from convicted felons and auctions them off turns out to be unjust, we do not want to say that those to whom the weapons have been auctioned are holding them unjustly. Rather, because they made their purchases in accordance with the law, it would be prima facie unjust to commandeer them.)

Of course, there is also a sense in which slaves were unjustly obtained – they were acquired in accordance with an unjust law.

My defense of the non-odiousness of (2), then, is this. Whether you find (2) plausible depends on whether you think (i) the justice of the application of a law fixes the justice of the outcomes licensed thereby or (ii) the justice of the law fixes the justice of the outcomes licensed thereby; neither (i) nor (ii) is obviously out to lunch.

This presents a legitimate puzzle. Putting the case of slavery and the case of the felonious firearms together we find support for the possibility that when somebody gains an advantage by following a justly applied law he shouldn’t be robbed of that advantage on the basis that the law he followed is unjust, but when somebody is disadvantaged by an unjust law, he should be compensated even if the unjust law is properly administered. It thus looks like the same outcome needs to be maintained for one person and altered for another. This, obviously, is unacceptable.

Update: One thing you might try to argue is that the person who gains an advantage by following a justly applied law doesn’t have his advantage robbed on the basis of the law’s injustice. He has it taken, instead, on the basis, e.g., that another deserves it more. And this fact alone licenses the seizure. This may well be a perfectly fine rationale, as far as it goes, but it doesn’t apply in the case at hand. In the case at hand, the person who “deserves it” does so because the law that disadvantaged him was unjust. So, in the case at hand, it is the law’s injustice that constitutes the basis for the alteration of the outcome.

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Responses

  1. One: (3) does not appear on the main page for me, which strikes me as odd.

    Two: I would think in most cases where one person gains an advantage and another a disadvantage through the just application of an unjust law, it is the government’s duty, as the wrongful guarranteer of the unjust law, to provide adequate restitution for those wronged while maintaining the advantage for those who received one. So, in the felonious weaponry case, the government is under an obligation to provide a whole new set of firearms to one of the parties (which would be a debatable question). Now obviously, the government cannot do that for the slavery question without perpetuating their initial injustice, so the two scenerios diverge. I might argue that this means the logic borrowed from the guns example cannot be carried over to that of slavery, since government action must necessarily “wrong” one party. Thus, the better paradigm might be that of “the lesser evil,” which, in this case, would certainly be emancipation.

    Three: I can always cut our Gordian knot by having the govt. provide former slaveowners robots.

  2. Your solution – have the government provide adequate restitution for those wronged while maintaining the advantage of others – doesn’t work because (a) in some cases restitution requires diminishing a particular person’s advantage and (b) there is still the problem of government’s having to disadvantage someone in order to pay restitution.

    The solution state owned casinos.

  3. […] the conceptual tangle CF’s earlier post about slavery, justice, restitution, etc. raised a number of points worth discussion; rather than […]


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