Monday, September 15, 2014

The Curious Case Of Reparations

By Victor J. Ward

I thought about starting this by saying, "Reparations are back in the news." But, in some ways, the talk about reparations has never left.

Professor Walter Block wrote

an essay for about reparations. (

Professor Block was responding to an article written by Professor Walter Williams. (

Professor Williams was responding to an article written by The Atlantic Journalist Ta-Nehisi Coatesentitled, "The Case For Reparations."

Dr. Gary North recently wrote an article about reparations.

This post contains my view of reparations.

To begin, I start with my view of punishment. It is similar to the Libertarian Theory of Punishment (LTP).

Consider two people, Vic and Crim. Crim steals a pen from Vic by picking Vic's pocket. The LTP holds that Crim must return Vic's pen. That makes Vic whole. It puts Vic back in the position that Vic was in before the crime.

The LTP also holds that Crim must give his (Crim's) pen to Vic. This is to punish Crim. So, after the crime and punishment for the crime, Vic would have two pens, and Crim would have one pen less than he had before the crime.

Let's look at one other scenario: Crim beats Vic by striking him 100 times with a leather whip. Vic has three options:

1. Vic can whip Crim 100 times to make Vic whole and Vic can whip Crim 100 times as punishment toCrim.

2. Vic can take a financial payout, say $100,000. This is to make Vic whole. Vic can take an additional $100,000. The second $100K serves as punishment fI thought about starting this by saying, "Reparations are back in the news." But, in some ways, the talk about reparations has never left.

3. Vic can whip Crim 100 times and Vic can take $100,000. One of the options serves to make Vic whole and the other serves to punish Crim.

Now, let's look at reparations. If I want reparations, I cannot just ask the first White person that I see for 40 acres and a mule. I must show that I am a descendant of a particular slave, let's say Frederick Douglas. Next, I must find the person that owned Frederic Douglas. Then, I must find a direct descendant of said owner.

Before I can ask for a sum of money, I need to know how much I am owed. It's not legitimate to say that all Black people are owed 40 acres and a mule and that all White people must pay. Some Blacks may be owed 40 acres, some more, and some less. Before a case can have merit in court, the plaintiff must present a valid outline of damages and a legally enforceable way to remedy said damages. (A class action is when several plaintiffs claim similar damages against one defendant. Reparations involve several plaintiffs, several defendants, and disparate remedies.)

Even if all of the above has been accomplished, there is another step before a Black person can get reparations:

Owner travels to Africa, kidnaps Slave, and brings Slave back to work his property. Owner does not pay anything to Slave, but the fair market value for Slave's labor is $1M. Owner whips Slave 100 times.

When Slave is finally set free, what should happen? Owner must make Slave whole by giving Slave what is owed and Owner must put slave in the position Slave held before the crime.

If the kidnapping corresponds to $500k, then the Owner must pay Slave $500k to make Slave whole and $500k for Owner's punishment. That's the first $1M.

Owner must pay for whipping Slave. The punishment here is $100k for making Slave whole and $100k for punishment. That's $200k for a total of $1.2M.

Is making someone work for nothing a crime? If you force them to work, I will argue that it is a crime. So, Owner must pay $1M to Slave for Slave's labor and $1M to Slave as punishment to Owner. That's $2M for this crime and $3.2M total.

But, there is one more thing that must happen: Owner must return Slave to the place Slave lived before the kidnapping. Owner must return Slave to Africa.

Can Slave ask to stay with Owner? Absolutely, but then Owner gets to negotiate with Slave. Owner can say to Slave, "If you are willing to drop the legal case against me, you will lose the $3.2M, but then you will get to stay in the United States," Slave can either agree to drop the case, or Slave can return to Africa and get the $3.2M that is owed to him.

Owner could tell Slave, "If you drop the case, I will give you $500k. It's not $3.2M, but it's something, and you won't have to go back to Africa."

If Slave decides that returning to Africa is worth less than $500k, Slave will accept the $500k. If Slave determines that going back to Africa is worth more than $500k, Slave will return.

To make it a little bit more real, what would happen if an ISIS soldier came to California, took me to Iraq, and forced me to be his slave. After I was freed, I would want more than money. I would want the justice system to force the soldier to return me to my home.

Now, let's set-up a hypothetical situation with the following people: Owner, Owner's Child, Slave, and Child of Slave. Owner dies and leaves all of his property to Owner's Child, and Slave dies and leaves all of his property to Child of Slave. How does this change our analysis?

Remember that under LTP, there is a component that is supposed to make the victim whole, and there is a component to punish the criminal.

Legal theory typically has three reasons for punishment: Deterrence, rehabilitation, and retribution.

In our second hypothetical, there is no legal or ethical reason to PUNISH Owner's Child for the crimes of the Owner. Since Owner's Child has not committed any crime, there is nothing to deter; there is nothing to rehabilitate; and Owner's Child has not subtracted anything from society, so there is no need for retribution.

Therefore, half of the original amount should go away. The most that Child of Slave could get is 50% of the $3.2M = $1.6M.

But remember, Owner's Child has to return Child of Slave to the position that Child would have been in if the crime had never been committed against Slave. This means that Owner's Child has to return Child of Slave to Africa.

If Child of Slave comes from a royal lineage, and upon his return, he is greeted by a 100,000 acres of land, 100,000 heads of cattle, and 100,000 pounds of gold, then Child of Slave may decide to go back. That is, Child of Slave may insist that the legal system compel Owner's Child to send him back.

If, however, Child of Slave would face a firing squad upon his return, then Child of Slave would want to stay in the United States. Child of Slave and Owner's Child could negotiate the following: Child of Slave will waive all legal remedies that the court would oppose on Owner's Child. And what would those legal remedies be? $1.6M and a return trip to Africa.

One reason that this may seem or feel unfair is because of the assumption that Child of Slave would be going to a place that is financially and economically worse than the US.

But, there is no reason to assume that. Furthermore, that determination can only be made by Child of Slave. If Child of Slave wants to return, he tells the court to enforce the legal remedy against Owner's Child and Owner's Child must take him back and give him $1.6M.

Another reason that this may seem or feel unfair is because, in one sense, Child of Slave is paying for the right to stay in the US. But, no one is asking the Child of Slave to pursue this claim of reparations. He is pursuing the claim because he believes that it is going to be in his own self-interest. If he determines that it is not in his self-interest, he will drop the claim and waive his right to pursue his legal remedy. He has not been harmed in any way and he is not being forced to pay any money.

There are two more wrinkles in the reparations claim: The $1.6M includes being whipped, but not all slaves were beaten like their name was Django. Before a Black person could claim the full $1.6M, he/she must show that their slave predecessor was, in fact, beaten. If they cannot show that, they don't get the money.

The second wrinkle is that the states made it illegal to release slaves. So, even if Owner wanted to release Slave, he was legally prevented from doing so.

In this instance, the onus is on Owner's Child to prove that Owner tried to release the slave but was prevented from doing so. If Owner's Child is able to show this, the amount owed would be further reduced.

Presently, a similar argument to the one above states that the Black person's reparations have been satisfied because the Black person got to remain in the United States.

But, what about the Black person that would have taken the money and gone back to Africa? We must give the victims of crime the ability to either enforce their legal rights and remedies or waive said rights and remedies. We cannot force them to choose the remedy that we find most expedient.

So, to all Black people who want to get a chunk of money and go back to Africa, follow the steps outlined above and I will support your right to receive reparations.

I wish you the best in the Motherland.

Victor J. Ward  first came across libertarianism by reading Murray Rothbard's Ronald Reagan: An Autopsy and Walter Block's Defending the Undefendable. He holds a law degree from the University of California, Hastings College of the Law and an MBA from Santa Clara University.

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