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The Paradoxes of Restitution

48 Pages Posted: 28 Apr 2013 Last revised: 1 Jun 2014

Mark A. Edwards

William Mitchell College of Law

Date Written: April 27, 2013

Abstract

Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.

First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.

Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes dispossessed because collective responsibility is unjustly imposed on them for wrongs committed by a few members of a group. But restitution may require the dispossession of innocent current occupiers of land – thus imposing a type of collective responsibility on them. Therefore, restitution can be seen as committing the very wrong it purports to right. This is the collective responsibility paradox.

Both paradoxes can be overcome, but only if we recognize the rights-worthiness of others before time fatally corrodes the viability of restitution. We must also draw a careful distinction between the imposition of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others.

After developing these ideas, the article examines them in the context of a particularly difficult and intractable case of dispossession and restitution. It draws upon interviews with restitution claimants whose stories reveal the paradoxes of restitution.

Suggested Citation

Edwards, Mark A., The Paradoxes of Restitution (April 27, 2013). 116 West Virginia Law Review 619 (2013). Available at SSRN: https://ssrn.com/abstract=2257357

Mark A. Edwards (Contact Author)

William Mitchell College of Law ( email )

875 Summit Ave.
St. Paul, MN 55115
United States
651.290.6441 (Phone)

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