Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution

25 Pages Posted: 1 Apr 2008 Last revised: 15 Apr 2015

See all articles by Ori J. Herstein

Ori J. Herstein

The Hebrew University of Jerusalem, Faculty of Law; King's College London - Dickson Poon School of Law

Date Written: 2008

Abstract

The "non-identity argument" has been applied to reject the validity of claims for historic justice, often generating highly unintuitive conclusions. George Sher has suggested a solution to this problem, explaining the harm to descendants of historically wronged peoples as deriving not from the historic wrongs but from the failure to provide rectification to the previous generation for harm they suffered. That generation was likewise owed rectification for harm they suffered from failure to provide rectification to the generation preceding them. In this chain of injustices each failure to provide rectification to one is the source of wrongful harm to the next. Such chains form a "bridge" between the historic wrong and the harm suffered by living individuals. I call this approach the subsequent-wrong solution (SWS). I argue that bypassing the non-identity argument in this way is problematic. First, SWS cannot justify rectification in seemingly legitimate historic-justice claims, such as historic wrongs generating delayed harms that skip generations. Second, SWS justifies rectification for the wrong reasons, denying the essence of historic-justice claims: that past wrongs, for which original wrongdoers are responsible, harm descendants of original victims. Finally, SWS does not fully account for group membership's role in historic injustice, unable to distinguish between claims of descendants of historic victims and claims made by others with unrelated interests in the rectification of the previous generation. A supplementary solution is needed, focusing on the role of group harm and group membership. The plausibility of this approach, tying individual harm to group harm, derives from these three limitations of the subsequent-harm solution. I give a rudimentary account of what such a solution would look like.

Keywords: Historic injustice, law, philosophy, historic justice, non-identity problem, non-identity argument, justice, reparations, parfit, compensation, rectification

JEL Classification: K1, K13, K19

Suggested Citation

Herstein, Ori J., Historic Injustice and the Non-Identity Problem: The Limitations of the Subsequent-Wrong Solution and Towards a New Solution (2008). Law and Philosophy, Vol. 27, p. 505, 2008. Available at SSRN: https://ssrn.com/abstract=1113928

Ori J. Herstein (Contact Author)

The Hebrew University of Jerusalem, Faculty of Law ( email )

Mt. Scopus
Jerusalem, 91905
Israel

HOME PAGE: http://law.huji.ac.il/eng/segel.asp?staff_id=190&cat=441

King's College London - Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

HOME PAGE: http://www.kcl.ac.uk/law/people/visiting/oherstein.aspx

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