RODNEY C. ROBERTS

THE MORALITY OF A MORAL STATUTE OF LIMITATIONS ON INJUSTICE
(Received 31 August 2002; accepted in revised form 3 October 2002)

ABSTRACT. This paper addresses the question of whether a statute of limitations on injustice is morally justified. Rectificatory justice calls for the ascription of a right to rectification once an injustice has been perpetrated. To claim a moral statute of limitations on injustice is to claim a temporal limit on the moral legitimacy of rights to rectification. A moral statute of limitations on injustice establishes an amount of time following injustice after which claims of rectification can no longer be valid. Such a statute would put a time limit on the life of all moral rights to rectification. Since ascribing a right to rectification for an injustice is a requirement of justice, and since the temporal limit called for by a statute of limitations on injustice is a constraint on that requirement, the idea of a statute of limitations on injustice is morally justified only if we have good reasons for accepting this constraint. I argue that the idea of a moral statute of limitations on injustice is not justified, since we lack good reasons for imposing the constraint on justice it requires. KEY WORDS: compensation, injustice, justice, rectification, rectificatory justice, statute of limitations

In his discussion of Native American land claims, David Lyons tells us that “[t]he monumental theft of land that was involved in the European conquest of America is regarded as a neutral fact about the past with little, if any, practical bearing on the present.”1 According to Christopher Arnold, when we consider the idea of a statute of limitations on injustice, “[m]ost of us see the need for a society to extinguish a claim if it is not enforced after a certain period of time.”2 And Jeremy Waldron writes of a “widespread belief that, after several generations have passed, certain wrongs are simply not worth correcting.”3 On the other hand, J. Angelo Corlett thinks that, in cases like those involving Native Americans, “reparations disrespect as being morally
Thanks are due to Allen Buchanan for helping me navigate through his corpus, and to J. Angelo Corlett and anonymous reviewers of this journal for comments on earlier drafts of this paper. 1 David Lyons, “The New Indian Claims and Original Rights to Land,” Social Theory and Practice 4 (1977), p. 249. 2 Christopher Arnold, “Corrective Justice,” Ethics 90 (1980), p. 183. 3 Jeremy Waldron, “Superseding Historic Injustice,” Ethics 103 (1992), p. 15.

The Journal of Ethics 7: 115–138, 2003. © 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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arbitrary any statute of limitations.”4 Speaking on the matter of reparations for the 1921 Tulsa Race Riot, where as many as 300 African Americans were killed, Oklahoma State Representative Don Ross, who represents the Greenwood neighborhood where the riot took place, claimed that “[t]here is no statute of limitations on a moral obligation.”5 And Karen Carrillo reports that “[r]eparations activists wanted to come away from the [United Nation’s World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR)] with an acknowledged declaration that the African slave trade and Black slavery in the Americas were ‘crimes against humanity’ – crimes for which there is no statute of limitations.”6 The question, therefore, is whether a statute of limitations on injustice is morally justified; that is, whether good reasons have been advanced in favor of a moral statute of limitations on injustice such that we ought to accept the idea as morally legitimate. My aim in this paper is to show that the idea of a statute of limitations on injustice is not morally justified. Rectificatory justice calls for the ascription of a right to rectification once an injustice has been perpetrated.7 To claim a moral statute of limitations on injustice is to claim a temporal limit on the moral legitimacy of rights to rectification. A moral statute of limitations on injustice establishes an amount of time following injustice after which claims of rectification can no longer be valid. Such a statute would put a time limit on the life of all moral rights to rectification. Since ascribing a right to rectification for an injustice is a requirement of justice, and since the temporal limit 4 J. Angelo Corlett, “Wrongdoing, Reparations and Native Americans,” in Rodney

C. Roberts (ed.), Injustice and Rectification (New York: Peter Lang Publishers, 2002), p. 149. 5 Jim Yardley, “Panel Recommends Reparations in Long-Ignored Tulsa Race Riot,” New York Times (February 4, 2000): “[T]he commission noted that the attack far surpassed the 1923 massacre in Rosewood, FL, in which whites destroyed the small town and killed at least six black residents. In 1994, the Florida Legislature provided up to $2 million to compensate survivors.” 6 New York Amsterdam News (June 27–July 3, 2002), p. 41. It was acknowledged in the Report of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban, South Africa, August 31–September 8, 2001, that “slavery and the slave trade are a crime against humanity” (p. 11; available at http://www.unhchr.ch/html/racism/index.htm). Moreover, it was “strongly reaffirm[ed] as a pressing requirement of justice that victims of human rights violations resulting from racism, racial discrimination, xenophobia and related intolerance . . . should be assured of having access to justice, including [inter alia] . . . the right to seek just and adequate reparation” (p. 24). 7 See “Injustice and Rectification: A Taxonomy of Justice,” in Rodney C. Roberts (ed.), Injustice and Rectification (New York: Peter Lang Publishers, 2002).

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called for by a moral statute of limitations on injustice is a constraint on that requirement, the idea of a statute of limitations on injustice is morally justified only if we have good reasons for accepting this constraint. In what follows I examine six justificatory arguments which favor a moral statute of limitations on injustice (hereafter MSOL). The first three represent the best arguments thus far advanced by philosophers in support of a MSOL. I begin in Part I with an analysis of the argument posed by Allen Buchanan. Buchanan’s view is an appropriate starting point since, as I try to show in Part II, the next two arguments rest on premises sufficiently similar to Buchanan’s such that they too are unsuccessful. I then offer three additional arguments in favor of a MSOL in Part III. Since neither the best arguments extant in the philosophical literature, nor the arguments I propose, are successful in providing good reasons for accepting the idea of a statute of limitations on injustice as morally legitimate, I conclude that a MSOL is not justified.

I Allen Buchanan argues for a MSOL by way of what he calls the “pragmatic premise.” In effect, the pragmatic premise asserts that “historical grievances fade with time – that the right of rectification itself can evaporate, or at least that the priority on satisfying this right can abate as the original injustice recedes into the past.” Given the pragmatic premise, “we must, if somewhat arbitrarily,8 close the books at some point” on injustices of the past; we must, in other words, establish a MSOL. In a global context, failure to establish a MSOL “would produce unacceptable disruption of the international order, with endless recriminations about ancient wrongs vying for priority.”9 Of course, it is not the passage of time per se which Buchanan thinks brings about the evaporation or abatement of the right to rectification. Rather, as in the case of land rights, it is “the multiplicity of competing historical claims and the need to limit major disruptions for large numbers 8 More recently, Buchanan has held the MSOL to be set by convention, saying that “conventions need not be wholly arbitrary” (Allen Buchanan, “Democratization, Secession and the Rule of International Law,” unpublished paper, p. 43, n. 6), and that “being a convention is not equivalent to being arbitrary” [Allen Buchanan, “Democracy and Secession,” in Margaret Moore (ed.), National Self-Determination and Secession (Oxford: Oxford University Press, 1998), p. 33, n. 30]. 9 Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder: Westview Press, 1991), p. 88.

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of people [that] can legitimize expectations to the point of expunging or overriding a preexisting territorial right.”10 Once the preexisting territorial right is expunged or overridden, the preexisting right to rectification either loses the priority given to satisfying it as time passes, or is effectively nullified since it can no longer be legitimately ascribed. Hence, Buchanan argues for a MSOL by way of four premises: the Multiplicity of Competing Claims Premise conjoined with the Major Disruption Premise, the Legal Statute of Limitations as MSOL Premise,11 and the Legitimate Expectations/Pragmatic Premise. Let us examine each of these in turn. The Multiplicity of Competing Claims Premise Buchanan notes that history is crowded with unjust takings of territory stretching far into the past. The “thorny” problem of a MSOL is: “Just how far back may we or must we go in determining the rightful owners of a territory and how clear must the title be?” This is a serious problem since “virtually every state in existence originally acquired all or some of its territory by theft, genocide, or fraud (or acquired it from those who gained it by such methods).”12 But why should we think that our lack of an answer to the question of how far back we may or must go in determining rightful territorial ownership and how clear the title must be, which is complicated by many morally tumultuous acquisitions, supports an affirmative response to the question of a MSOL? One possibility is that, given the claims arising from so many unjust takings, it is simply too difficult to figure out rightful ownership and legitimate title. On this view, the difficulty of the task carries moral weight such that, because it is so hard to do correctly, we can instead establish a temporal limit without any regard for the moral legitimacy of that limit. But even if we assume that we need a limit at all, the degree of difficulty required in developing adequate criteria for a morally legitimate one does not support the establishment of a morally arbitrary one. However, I think Buchanan has a more substantive claim in mind. His real concern is that we will end up crediting questionable rectificatory claims. Buchanan wants to avoid necessarily crediting the claims of groups where: (1) “the historical facts are not so clear,” (2) “the current claimants 10 Buchanan, Secession, p. 89. 11 I explain below how this premise arises in Buchanan’s argument. 12 Allen Buchanan, “Self-Determination, Secession, and the Rule of Law,” in Robert

McKim and Jeff McMahan (eds.), The Morality of Nationalism (Oxford: Oxford University Press, 1997), p. 311.

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are not unambiguously descended from those from whom the territory was taken,” and (3) “the passage of time has been so extensive and has involved so many successive acts of unjust conquest that the attribution of previous sovereignty to the alleged ancestors of the current claimants is itself dubious.”13 Hence, according to the Multiplicity of Competing Claims Premise: given the many unjust acquisitions by theft, genocide, or fraud, and the claims they might give rise to, we need to avoid necessarily crediting questionable claims of rectification. This idea is not without some initial appeal. After all, if it turns out that amongst a proliferation of claims, a number of illegitimate ones will be credited due to the lack of a MSOL, then this might lend support to the idea of a MSOL. Unfortunately, we have no reason to think that such claims will necessarily be credited. No legitimate conception of rectificatory justice would ever call for “rubber stamping” any and all claims of rectification. Surely if any combination of (1), (2) or (3) is the case with respect to a particular claim, some kind of judgment would have to be made as to the moral legitimacy of that claim. Even if we just say that some illegitimate claims will necessarily slip through the cracks and be credited, it is difficult to imagine them being so numerous as to even suggest a morally arbitrary statute of limitations as a means (much less the only means) of eliminating them. Indeed, the mere examination of rectificatory claims may itself be beneficial. Mari Matsuda suggests that “[t]he very process of determining the validity of claims will force collective examination of the historical record. The discovery and acknowledgment of past wrongs will educate us and help us to avoid repeating the same errors.” A multiplicity of claims being pressed may even be a sign of a healthy democracy.14 When we take rectificatory justice seriously, we are forced to conclude that a society “based on unrectified injustice is itself unjust.” Further, “a society that simply refuses to admit its unjust history toward others not only remains unjust on balance, but serves as a stark reminder of the unabashed arrogance of its unspeakable badness.”15 Even in cases where injustices are found to be unrectifiable, there can be positive moral implications. According to Robert Ginsberg, even when

13 Buchanan, “Democratization, Secession, and the Rule of International Law,” p. 44, n. 6. Since Buchanan cites this paper twice in “Self-Determination, Secession, and the Rule of Law,” p. 323, I take it that this is still representative of his view. 14 Mari J. Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” Harvard Civil Rights-Civil Liberties Law Review 22 (1987), pp. 383–384, 384, n. 254. 15 Corlett, “Wrongdoing, Reparations and Native Americans,” p. 164.

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all we can do is symbolic justice,16 this act of commemoration “safeguards others from injustice.”17 Hence, the Multiplicity of Competing Claims Premise may lend more support to the idea that the U.S. ought to admit its unjust history and make every effort to investigate whatever rectificatory claims arise, than it does to the idea of a constraint on rectificatory justice such as the one imposed by a MSOL. The Major Disruption Premise In addition to the concern that questionable claims may be honored, the idea of a multiplicity of claims for rectification raises the matter of an unacceptable disruption of the national or international order. Hence, Buchanan rightly conjoins the Multiplicity of Competing Claims Premise with the Major Disruption Premise: major disruptions of large numbers of people ought to be limited. This premise also has some initial appeal. No one wants major disruption in the national or international order when it can be avoided.18 When we suppose that rectifying an injustice will be morally unacceptable in the face of a major disruption, the potential force of this premise becomes clear. However, its viability rests on the moral acceptability of the disruption itself. If major disruptions resulting from the rectification of injustice are not always morally vicious, any support for a MSOL by way of this premise will be thrown into question. We have, I think, good reason for believing that in many cases such disruption is not morally vicious. Robert Porter reminds the Cayuga people that they tend to forget that Americans historically viewed our nations as indigenous “evil empires” that had to be destroyed. The colonists saw us as godless and lawless savages whose existence was an immoral interference in their pursuit of Manifest Destiny. The virulent opposition demonstrated by the trespassers goes far beyond an effort to protect their homes [from “the re-establishment of a Cayuga homeland” in New York state] – it speaks volumes to how little some Americans have evolved away from a frontier mentality. According to American history, there has not been an Indian war for more than 100 years. But we know that the war has never ended.19 16 See my discussion of rectificatory symbolism in Rodney C. Roberts, “Why Have the Injustices Perpetrated against Blacks in America Not Been Rectified?” Journal of Social Philosophy 32 (2001), pp. 360–361. 17 Robert Ginsberg, “The Future of Past Injustices,” in J. Ralph Lindgren (ed.), Horizons of Justice (New York: Peter Lang Publishers, 1996), p. 52. 18 According to Christopher Arnold, “[w]e think that it would be too disruptive to enforce claims that have been dormant too long, not withstanding that any such claim rests on fairness” (Arnold, “Corrective Justice,” p. 183). 19 Robert B. Porter, “Indian Lands: ‘Stolen Fair and Square,’ ” Native Americas 17 (2000), p. 64.

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When we take rectificatory justice seriously, we can make sense of the historic and ongoing “disruption” of indigenous and other minority groups in the U.S. at the hands of the dominant group as itself sufficient moral ground for rectification. If this is so, then employing the Major Disruption Premise in such cases seems to suggest that it is only when the shoe is on the other foot, that is, only when it is the dominant group which faces the disruption, that disruption becomes a concern of any moral import. It is far from clear, therefore, that major disruption in the wake of rectifying injustice in all, or even most cases, is morally vicious, or that the need to limit any such disruption supports the constraint on rectificatory justice that a MSOL imposes. The Legal Statute of Limitations as MSOL Premise Buchanan wants to leave room for what he calls “principled exceptions” to the “general rule” of a MSOL. In cases where “there is a very clearly documented unjust taking that occurred earlier, as in the case of some lands taken from American Indians in violation of explicit treaty obligations on the part of the U.S. Government,” no MSOL should apply.20 But surely this stands the matter on its head. It is justice, specifically, rectificatory justice, that is the general rule in such cases, not a MSOL. This view would have us think that some morally legitimate rectificatory claims are exceptions to a general rule of justice. Although this is unacceptable from a moral point of view, if instead we were concerned with such exceptions when they are exceptions to a general rule of law, much of the unsavoriness would be mitigated. Statutes of limitations are generally acceptable in law, and are absent any necessary requirement that the morality of rectificatory claims be determined. Indeed, Buchanan implies that we accept an analogy between a MSOL and a legal statute of limitations on injustice (hereafter LSOL). As to the former, Buchanan thinks that some “reasonable convention to set a time before which claims of unjust taking would not be regarded as justiciable would seem to be unavoidable.” According to Buchanan, “[h]ere as in other areas of the law, some conventions are more reasonable than others . . .”21 So either Buchanan thinks that a MSOL just is a LSOL (with the former already an area of law), or he is suggesting a move from a LSOL to a MSOL. Since I take it as doubtful that Buchanan wishes to jettison the legal/moral distinction, I think what he has in mind is a move from a LSOL to a MSOL. Hence, according to the Legal Statute of Limitations as 20 Buchanan, “Democratization, Secession and the Rule of International Law,” p. 44, n.

6; I have removed the parentheses from the latter phrase. 21 Buchanan, “Democracy and Secession,” p. 33, n. 30, emphasis added.

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MSOL Premise: the reasons for having a LSOL for transgressions of law are also good moral reasons for a statute of limitations on injustice. The reasons for legal statutes of limitations in both civil and criminal contexts can be taken together. The purpose of a statute of limitations in civil law is “to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.”22 The purpose of a statute of limitations in criminal law is “to limit exposure to criminal prosecution to a certain fixed period of time.” The limitation “is designed to protect individuals from having to defend themselves against charges when the basic facts have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.”23 In the case of both civil and criminal statutes of limitations, then, the idea is to fix enforceability at some temporal limit so that (a) matters are resolved while evidence is available and fresh, protecting against charges with obscure basic facts, and (b) legal affairs have finality and predictability and there is protection against official punishment for acts in the distant past. Immediately we can see in (a) a concern very similar to Buchanan’s. But where Buchanan is concerned that questionable claims for rectification would necessarily be credited, the concern here is with the mere bringing of questionable charges. Unfortunately, when the concern is with the rectification of injustice, especially where the injustice is particularly grave, the perpetrators (who in many cases have implemented their own legal system) are unlikely to seek a speedy resolution since they almost certainly wish to remain in power for as long as possible. Hence, it is unlikely that the freshness and availability of the evidence attesting to their act(s) will be maintained. Add perhaps decades of oppression by way of dislocation, disenfranchisement, etc., and it is unlikely that we can make sense of mitigating potentially legitimate claims under these circumstances, and at the same time take rectificatory justice seriously. Hence (a) does not carry over from a LSOL to a MSOL. Although finality and predictability are probably acceptable virtues in both the legal and moral arenas, it is unlikely that a statute of limitations will contribute as much in this regard in the latter as it might in the 22 Black’s Law Dictionary, 7th edition (St. Paul: West Group, 1999), p. 1422. 23 Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858 (1970), in Black’s Law

Dictionary, p. 1423. The Court goes on to say that: “Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.”

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former. Moreover, the idea that we would want to protect against official punishment for acts in the distant past flies in the face of our concern for rectificatory justice. It is precisely when the perpetrator has been most successful that the attention paid to the injustice is stymied. Finally, it has already been mentioned that history is replete with injustices involving genocide. Since no LSOL applies to murder, the idea of a LSOL supports the rejection of a MSOL in such cases. The Legal Statute of Limitations as MSOL Premise is therefore false: the reasons for having a LSOL for transgressions of law are not also good moral reasons for a statute of limitations on injustice. The Legitimate Expectations/Pragmatic Premise According to Buchanan’s argument, the Multiplicity of Competing Claims Premise and the Major Disruption Premise support the Legitimate Expectations/Pragmatic Premise: it is possible for the expectations of those who would not benefit from the enforcement of a particular right to rectification to be legitimized such that the moral weight of these expectations results in a preexisting territorial right being expunged or overridden, and the preexisting right to rectification to evaporate or have the priority of its fulfillment abate as time passes. Given the Legitimate Expectations/Pragmatic Premise, there ought to be a MSOL. In this case a MSOL is a constraint on rectificatory justice in the ascription of rights to rectification, since it either (1) nullifies the right to rectification (it evaporates), or (2) gradually reduces the right to rectification in moral import as time passes (it abates). But even if we suppose that expectations can be legitimized because of a concern that we avoid necessarily crediting questionable claims of rectification (the Multiplicity of Competing Claims Premise) and because of a concern for the disruption caused by the fulfillment of a multiplicity of rectificatory claims (the Major Disruption Premise), there are several reasons for questioning whether the Legitimate Expectations/Pragmatic Premise supports a MSOL. First, in its weaker formulation, the Legitimate Expectations/Pragmatic Premise only calls for reducing the moral importance we give to enforcing or satisfying a particular right to rectification. Although this is certainly a constraint on rectificatory justice, since it falls short of nullification, it does not support the idea of a MSOL. Second, to subscribe to the stronger formulation of the Legitimate Expectations/Pragmatic Premise is to subscribe to the view that, because of the possibility that some preexisting territorial right might be expunged or overridden, we ought to have a rule of justice which sets a temporal limit,

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either arbitrarily or by convention, on the moral legitimacy of rights to rectification. Since this mere possibility does not support such a constraint on rights to rectification, it does not support a MSOL. Third, this premise is something of a red herring. When injustices have long gone unaddressed, the Legitimate Expectations/Pragmatic Premise diverts our attention to the non-beneficiaries of rectification. Hence, our attention is diverted, perhaps now completely, away from the rectification already long overdue. Even if we were to grant that the Legitimate Expectations/Pragmatic Premise does support a MSOL, that rectification is still due for the time and events between the initial injustice and the point at which the right to rectification is nullified, is inescapable. Finally, there is the matter of establishing the moral legitimacy of certain expectations. It makes sense to think that “any of my expectations can gain normative force in being met.” When my expectations are frequently met, they “may come to form the map of the world that I depend on and take as stable.”24 “[P]ositive expectations create a negative perceptual space of what is unnoticed, ignored, excluded, or dismissed as unimportant in ways that are themselves missed because only the encoding of expectations as norms is being attended to.”25 Given this view of expectations, it is easy to see how judgments about moral legitimacy could heavily favor a dominant group. Since it will generally be the standard of the dominant group which is applied to judgments about expectations vis-à-vis rights to rectification, any support for a MSOL by way of the Legitimate Expectations/Pragmatic Premise is suspect. As Sue Campbell notes: “Those with dominant identities have considerable power to order environments through what they attend to; thus their environments do not impinge on them or change them.”26 Hence, it is likely that in such cases “the parameters of appropriate remedies are not dictated by the scope of the injury to the subjugated, but by the extent of the infringement on settled expectations of whites.”27 So, rather than supporting a constraint on rectificatory justice, close examination of the Legitimate Expectations/Pragmatic Premise reveals a need for careful scrutiny of any claims which purport that 24 Sue Campbell, “Dominant Identities and Settled Expectations,” in Susan E. Babbitt

and Sue Campbell (eds.), Racism and Philosophy (Ithaca: Cornell University Press, 1999), p. 223. Cf. Thomas Pogge’s idea of legitimate expectations in Thomas W. Pogge, “Group Rights and Ethnicity,” in Ian Shapiro and Will Kymlicka (eds.), NOMOS XXXIX: Ethnicity and Group Rights (New York: New York University Press, 1997), pp. 209, 218, n. 24, p. 220, n. 26. 25 Campbell, “Dominant Identities and Settled Expectations,” p. 225. 26 Campbell, “Dominant Identities and Settled Expectations,” p. 229. 27 Cheryl I. Harris, “Whiteness As Property,” Harvard Law Review 106 (1993), p. 1768.

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the expectations of non-beneficiaries to rectification have been legitimized to the point of expunging or overriding a preexisting territorial right. Thus far I have tried to show that none of the premises in Alan Buchanan’s argument supports a MSOL. Let us turn now to the next two arguments in favor of a MSOL.

II In cases involving property rights violations, Ellen Frankel Paul thinks that “matters get messy when the rights violation has not been redressed for generations.” Such cases raise difficult questions as to who has the right to reclaim the stolen property. Cases involving “claims to inherit the right to compensation for rights violations of the life and liberty sort” are even more difficult to resolve, since they raise questions as to who has a right to compensation.28 She doubts these difficult questions can be resolved, “other than by adopting the sensible solution devised by the common law judges: some rights violations lapse with time and, therefore, are uncompensable.”29 Both civil and criminal law have statutes of limitations that render claims stale with the passage of time. These limitations seem perfectly sensible, for they insist that if a person does not act to claim his lost possession within a reasonable amount of time, he and his heirs are forever barred from complaining. Intervening events, and the reliance of innocent third parties on legitimate transactions involving the stolen property, make it likely that others’ rights will be violated if we attempt to repair damages that are of ancient lineage.30

Frankel Paul’s argument rests on three premises. First, she invokes the less substantive version of the Multiplicity of Competing Claims Premise that we first considered attributing to Buchanan. Recall that according to this premise it is simply too difficult to figure out rightful ownership and legitimate title, and this difficulty carries moral weight such that we can instead establish a temporal limit without any regard for the moral legitimacy of that limit. Second, in doubting that these difficult questions can be resolved except by establishing a statute of limitations, Frankel Paul invokes the Legal Statute of Limitations as MSOL Premise. Finally, since she is concerned with the “reliance of innocent third parties on legitimate transactions involving the stolen property,” that is, with the expectations of those who would not benefit from the enforcement of a particular 28 Ellen Frankel Paul, “Set-Asides, Reparations, and Compensatory Justice,” in John W. Chapman (ed.), NOMOS XXXIII: Compensatory Justice (New York: New York University Press, 1991), pp. 115–116. 29 Paul, “Set-Asides, Reparations, and Compensatory Justice,” p. 116. 30 Paul, “Set-Asides, Reparations, and Compensatory Justice,” p. 116.

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right to rectification, she invokes the Legitimate Expectations/Pragmatic Premise as well. Since her argument rests on premises sufficiently similar to Buchanan’s, and given the problematic nature of Buchanan’s reasoning, Frankel Paul’s argument does not succeed in supporting a MSOL. The Supersession of Injustice Premise Jeremy Waldron thinks it a widely held belief that “some rights are capable of “fading” in their moral importance by virtue of the passage of time and by the sheer persistence of what was originally a wrongful infringement.” He thinks that our familiarity with statutes of limitations in law “no doubt contributes to the widespread belief that, after several generations have passed, certain wrongs are simply not worth correcting.”31 On Waldron’s view, statutes of limitations “are inspired as much by procedural difficulties about evidence and memory, as by any doctrine about rights.”32 According to Waldron: For better or worse, people build up structures of expectation around the resources that are actually under their control. If a person controls a resource over a long enough period, then she and others may organize their lives and their economic activity around the premise that that resource is “hers,” without much regard to the distant provenance of her entitlement. Upsetting these expectations in the name of restitutive justice is bound to be costly and disruptive.33

Waldron also endorses a MSOL because he thinks that changes in circumstances, both social and economic, may play a role. If the requirements of justice are sensitive to circumstances such as the size of the population or the incidence of scarcity, then there is no guarantee that those requirements (and the rights that they constitute) will remain constant in relation to a given resource or piece of land as the decades and generations go by.34

Hence, for Waldron, “it seems possible that an act which counted as an injustice when it was committed in circumstance C1 may be transformed, so far as its ongoing effect is concerned, into a just situation if circumstances change in the meantime from C1 to C2.” When this phenomenon occurs, Waldron thinks that the injustice has been “superseded.”35 So, in addition to the Legal Statute of Limitations as MSOL Premise, the Major Disruption Premise, and the Legitimate Expectations/Pragmatic Premise, Waldron adds what I shall call the Supersession of Injustice 31 Waldron, “Superseding Historic Injustice,” p. 15. 32 Waldron, “Superseding Historic Injustice,” p. 16. 33 Waldron, “Superseding Historic Injustice,” p. 16. 34 Waldron, “Superseding Historic Injustice,” p. 16. 35 Waldron, “Superseding Historic Injustice,” p. 24.

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Premise: It is possible for injustices to be superseded by changes in circumstances. However, like the premises already discussed, the Supersession of Injustice Premise is also problematic. Waldron illustrates how his notion of supersession might work by employing an example suggested by David Lyons.36 He asks us to suppose that there are various groups on a savanna in circumstances where resources are abundant, and where each group is in legitimate possession of one particular water hole. One day, motivated purely by greed, members of group Q descend on the water hole possessed by group P and insist on sharing that with them. (What’s more they do not allow reciprocity; they do not allow members of P to share any water hole that was legitimately in the possession of Q.) That is an injustice. But then circumstances change, and all the water holes of the territory dry up except the one that originally belonged to P. The members of group Q are already sharing that water hole on the basis of their earlier incursion. But now that circumstances have changed, they are entitled to share that water hole; it no longer counts as an injustice. It is in fact part of what justice now requires. The initial injustice by Q against P has been superseded by circumstances.37

Waldron rightly notes a possible objection to this view: it results in a “moral hazard – an incentive for wrongdoers to seize others’ lands confident in the knowledge that if they hang on to them wrongfully for long enough their possession may eventually become rightful.”38 Waldron answers this objection by pointing out that, in a situation where no injustice occurs, as in the case of a large increase in the world’s population, we might be justified in forcing aboriginal peoples of a given territory to share their land with non-aboriginals. If such an argument can be made, then this change in circumstances in the real world may justify previously wrongful occupations of aboriginal lands as being morally permissible. Hence, according to Waldron, “[t]here is no moral hazard in this supersession because the aboriginal inhabitants would have had to share their lands, whether the original injustice had taken place or not.”39 Since the supersession depends upon the moral significance of the circumstances and how they have changed, Waldron rightly observes that it does not follow from the mere possibility of supersession that it will always happen. Nevertheless, he holds the following view regarding the enormous changes in North America and Australasia since the settlement of white colonists. 36 Waldron cites (p. 24, n. 23) David Lyons, “The New Indian Claims and Original

Rights to Land,” in J. Paul (ed.), Reading Nozick (Oxford: Blackwell, 1982), p. 371. 37 Waldron, “Superseding Historic Injustice,” pp. 24–25. 38 Waldron, “Superseding Historic Injustice,” p. 25. 39 Waldron, “Superseding Historic Injustice,” p. 25.

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The population has increased manyfold, and most of the descendants of the colonists, unlike their ancestors, have nowhere else to go. We cannot be sure that these changes in circumstances supersede the injustice of their continued possession of aboriginal lands, but it would not be surprising if they did. The facts that have changed are exactly the sort of facts one would expect to make a difference to the justice of a set of entitlements over resources.40

I think Waldron is mistaken. Indeed, it would be surprising if the changes in circumstances which arose in North America and Australasia (and I suspect elsewhere as well) as a result of the settlement of whites supersede the injustice of their continued possession of aboriginal lands – at least to aboriginal peoples and all those who take rectificatory justice seriously. Consider Waldron’s example. His notion of superseding historic injustice only accounts for the time at which the ongoing effects of an injustice cease to be unjust. In other words, there is nothing in Waldron’s account which prevents group P from legitimately invoking a right to rectification for the injustice perpetrated upon them by group Q which includes a demand for compensation for any losses sustained by P from the time of the unjust intrusion of P’s water hole up until the time of the drought. Waldron’s idea of supersession only includes the ongoing effects of an injustice forward from some point subsequent to the injustice. The injustice per se is not superseded, rather, the effects (which heretofore may have been appropriately thought of as unjust losses) of that injustice are superseded, and hence no longer constitute an unjust state of affairs. So even when we think of group P’s right to their water hole as circumstantially sensitive, and hence including a duty to share fairly with others in circumstances of scarcity, their exclusive right, and so their right to rectification should that right be violated, remains intact until such time as circumstances do in fact change. Hence, as was the case with the Legitimate Expectations/Pragmatic Premise, even if the Supersession of Injustice Premise did support a MSOL, that rectification is still due for the time and events between the initial injustice and the point at which the right to rectification is nullified, is inescapable. 40 Waldron, “Superseding Historic Injustice,” p. 26, emphasis added. Will Kymlicka has a similar perspective. Kymlicka thinks that “land claims recognized in treaties may be too much, or too little, given changes in the size and lifestyle of Aboriginal communities” [Will Kymlicka, “Individual and Community Rights,” in Judith Baker (ed.), Group Rights (Toronto: University of Toronto Press, 1994), p. 27]. He invokes Waldron’s idea of the supersession of injustice in support of his view that the land holdings of indigenous peoples “could exceed what justice allows” [Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), pp. 110, 220, n. 5].

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Secondly, although Waldron acknowledges that supersession depends on the moral significance of the circumstances and how they have changed, he appears unaware of the moral import of precisely the changes he mentions. While natural phenomena that result in changes in circumstances with regard to resources like water or land may yield good reason for thinking that justice requires indigenous people to share those resources, this is hardly analogous to the typical colonial scenario. To hold that there has been no incentive for white settlers to seize aboriginal lands confident in the knowledge that if they hung onto those lands long enough their possession might eventually become rightful (the moral hazard) flies in the face of historical reality. Take the U.S., for example. Manifest Destiny fueled a massive and forceful move westward by whites. Whether those involved with the migration moved west because they really thought such a move was prescribed by God, or whether they did so for self-interested reasons such as greed (the “land of milk and honey”), they did so with the reasonable belief that seizing the lands of the native peoples would not only be a widespread practice, but also that such seizures would in the end be supported by every other “settler,” and by the U.S. Government as well. I need not recount the history of the U.S. Army versus the native peoples of what is now the U.S., or the lack of adherence by the U.S. Government to treaties with native peoples, to illustrate this point – that history is well known. Hence, the seizure of land was given both moral and legal legitimacy, making whites rightful owners. The moral hazard is both clear and present. By being the architects of the circumstances which would ultimately supersede the injustice of their own actions, it seems inconceivable that white settlers did not have an incentive to seize the lands of indigenous peoples with the sure knowledge that what they were doing would be fully endorsed. The all too common expression of the times that “the only good Indian is a dead Indian,” makes the level of certainty held by whites quite clear.41 Finally, more often than not, the change in circumstances resulting from white incursion ultimately includes a system of oppression visà-vis indigenous peoples as a means of maintaining the “change in circumstances” long after the initial injustices have been perpetrated. The following dilemma faced by non-indigenous people living in what is now the U.S. underscores this point.

41 Moreover, as J. Angelo Corlett notes, “conditions of scarcity would, so far as

history informs us, have not likely existed if not for the doings of the European invaders themselves!” “Wrongdoing, Reparations and Native Americans,” p. 160.

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Consider Hawai‘i, where the K¯anaka Maoli42 protested the overthrow of their islands, and for the most part had no desire to see them become a territory of the U.S., much less one of its states.43 And although the U.S. recently offered words of apology for the overthrow,44 there is little doubt that for the time being the U.S. has no intention of reestablishing anything like a real homeland for them in their own land, much less restoring the islands to them.45 Hence, an important question for nonindigenous folk who live in Hawai‘i, and who take rectificatory justice seriously, is this: Given the U.S. tax system, the wealth associated with real estate, and the system of wealth inheritance, how can one purchase a house in Hawai‘i without endorsing the overthrow of the indigenous people of Hawai‘i, or placing oneself at a significant economic disadvantage?46 If one purchases a house, then it follows that one endorses the overthrow of the indigenous people of Hawai‘i. As soon as one claims that the house and land are “mine,” one endorses the system whereby non-indigenous ownership is possible. On the other hand, if one does not purchase a house, then one must continue to pay rent, which is not tax deductible, for a dwelling from which nothing other than the immediate value of shelter will ever be realized. Without a mortgage and the tax deductible interest payments which accompany them, renters are typically unable to itemize deductions. Consequently, they pay a much higher rate of taxes, possibly over several decades, than those who claim ownership of a part of the islands. Moreover, renters will never realize the almost 42 This is the expression used by the indigenous people of Hawai‘i to describe them-

selves before they had contact with whites. A common translation of K¯anaka Maoli is “the real or true people.” 43 For a history of Hawai‘i, see, e.g., Michael Dougherty, To Steal a Kingdom: Probing Hawaiian History (Waimanalo, Hawai‘i: Island Style Press, 1992). 44 Public Law 103-150, 103d Congress, Nov 23, 1993, S.J. Res. 19, 107 Stat. 1510. As there has not even been a hint that lands will be restored, or that compensation will be forthcoming, the apology is morally vacuous; hence “words of apology.” 45 In 2000 Senator Daniel Akaka of Hawai‘i introduced a Native Hawaiian Recognition bill (106th Congress, 2d Session, S. 2899) for the second time. Although the bill passed the Senate Indian Affairs Committee and the companion House committee in 2001, it did not go to the House floor, and was reported to be “dead in the Senate” for 2001 [Honolulu Advertiser (December 13, 2001), p. B2]. On July 15, 2002, “the state’s congressional delegation convened a roundtable discussion in the nation’s Capitol about Native Hawaiian self-determination called, ‘For the Love of Our Country: America’s First Citizens and Their Contributions to the United States.’ ” The title alone smells of the bill’s revival, this time along patriotic lines [Honolulu Weekly (July 17–23, 2002), p. 9]. 46 I am putting aside how unlikely home ownership is for most people in Hawai‘i given the $331,000 median price for a new single-family home on the island of O‘ahu (Honolulu Advertiser [March 17, 2002], p. G3). The average price of a new home in the continental U.S. is “nearly” $150,000 (CNN, Lou Dobbs Moneyline, May 20, 2002).

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inevitable growth in equity that would result from long-term ownership of residential property in Hawai‘i, or be able to pass this wealth on to their heirs. The incentive given to non-indigenous people by the system in this situation, and hence the perennial support given to maintaining the “change in circumstances” which dispossessed the K¯anaka Maoli of their islands, is clear: claim ownership of a part of the Hawaiian islands, or face significant economic disadvantage. Hence, the Supersession of Injustice Premise does not support a MSOL. Given the difficulties with this premise, and given that the other premises in Waldron’s argument are sufficiently similar to Buchanan’s, Waldron’s argument for a MSOL is also unsuccessful.

III Let us turn now to three additional premises which might ground arguments in favor of a MSOL. As I will try to show, although these arguments have some initial appeal, ultimately they too fail to support a MSOL. Prior to the United Nation’s World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR), there seems to have been more attention paid to the idea of rectificatory efforts in favor of African Americans than ever before.47 And of course, rectification of injustice was at the center of the controversy surrounding the conference even before it began.48 Some were taken aback, however, when the first African American National Security Advisor, Condoleezza Rice, and the first African American Secretary of State, Colin Powell, were not only absent from the conference, but failed to advocate its rectificatory objectives.49 Indeed, Rice “was a leading voice against sending Powell 47 See, e.g., “Race, Reparations, and Free Expression,” Chronicle of Higher Educa-

tion (March 30, 2001), p. A48; “Brown U. Paper Ad Denouncing Reparations Prompts Protests,” Jet (April 2, 2001), p. 18; “Commission Proposed to Study Reparations in New York,” New York Amsterdam News (July 5–July 11, 2001), p. 3; “Reparations for Slavery Returns to the Front Burner,” New York Amsterdam News (July 12–July 18, 2001), p. 10; and “State of California Calls for National Action on Slavery Reparations,” Jet (July 30, 2001), p. 21. 48 See, e.g., “Reparations Call Gains More Voices in Anticipation of the WCAR,” New York Amsterdam News (July 26–August 1, 2001), p. 5, and “Reparations for the Victims of the Trans-Atlantic Slave Trade is Now the Central Controversy,” New York Amsterdam News (August 23–August 29, 2001), p. 2. 49 The U.S. failed to send any serious contingent to the conference. Ultimately, the minor contingent the U.S. administration did send walked out mid-conference. The U.S. and Israel reportedly “walked out over Arab efforts to condemn Israel” in the draft declaration, both countries having boycotted the U.N. racism conferences in 1978 and 1983 “in

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to Durban,”50 and “[m]any have pointed to the influence of . . . Rice in determining that the conference would not serve the U.S. agenda.”51 Now, it seems highly plausible, perhaps even likely, that the U.S. response to the WCAR was “very natural given that they are one of the culprits in the area of racial discrimination; so they didn’t want to [go to Durban] and be held accountable.”52 However, this entails the view that the U.S. “agenda” simply does not include a concern for rectificatory justice in the case of African Americans and other groups. Although this view will no doubt strike many as morally vicious, it is nevertheless a highly plausible understanding of why substantive participation in the WCAR would fail to serve the U.S. agenda. Moreover, it is a plausible, and perhaps all too common (and unspoken) ground for a MSOL: the rectification of injustices perpetrated against African Americans and others is simply unimportant; hence, we ought to set a time after the injustice (preferably one which prohibits making legitimate claims for injustices like American Slavery) when claims for rectification are no longer valid. The Capitalist Premise Another plausible explanation for America’s response to the WCAR, one which is less vicious, is that the U.S. opted against serious involvement because of an overarching concern for capitalism. This puts Rice’s position in what may be the best possible light, and yields a more palatable rationale for America’s actions. The accompanying argument for a MSOL, therefore, would be grounded in the Capitalist Premise: In liberal democracies like the U.S., the concern for capitalist interests can outweigh the requirements of justice. Given this premise, the distraction of dealing with injustices from the distant past simply takes too much away from our “moving forward.” As we saw in our discussion of a LSOL, those who would subscribe to the Capitalist Premise find that the finality and predictability which accompanies the existence of a statute of limitations on injustice is a significant aid to setting and enforcing public policy. In short, things run much more smoothly, and our goals as a capitalist democracy are achieved more easily, when we subscribe to the idea of a MSOL. part because of similar language” [Honolulu Star-Bulletin (September 4, 2001), p. A10]. However, according to Mary Robinson, U.N. High Commissioner for Human Rights, and Secretary-General of the WCAR, “[t]he resolution stating that Zionism is a form of racism was repealed a decade ago” [Honolulu Weekly (August 29–September 4, 2001), p. 5]. 50 Honolulu Advertiser (August 26, 2001), p. A6. 51 New York Amsterdam News (August 30–September 5, 2001), p. 2. 52 Zimbabwe Minister of Justice Patrick Chinamasa, quoted in New York Amsterdam News (September 6–September 12, 2001), p. 1.

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Since many consider Adam Smith to be the father of modern capitalism, it is reasonable to suppose that those who might be inclined to advance the Capitalist Premise in arguing for a MSOL would make an appeal to Smith, thinking that such an appeal would show the primacy of capitalist concerns over those of justice. However, as Patricia Werhane reminds us, “Smith sees perfect liberty as the necessary condition for competition, but perfect competition occurs only if both parties in the exchange are on more or less equal grounds, whether it be competition for labor, jobs, consumers, or capital.” According to Smith, operating “with unrestrained self-interest, where that self-interest causes harm to others would violate the laws of justice.”53 Moreover, In the race for wealth, and honours, and preferments, he may run as hard as he can, and strain every nerve and every muscle, in order to outstrip all his competitors. But if he should justle, or throw down any of them, the indulgence of the spectators is entirely at an end. It is a violation of fair play, which they cannot admit of.54

The recent coming to light of the overwhelming greed and lack of moral sense in corporate America is illustrative of Smith’s point.55 Given the obvious primacy Smith gives to justice over wealth accumulation, the Capitalist Premise does not succeed in supporting a MSOL. Some might object, however, claiming that, even if the importance of justice in Smith’s view has been overlooked in the argument from the Capitalist Premise, Smith voices no specific concern for the rectification of injustice. Hence, while corporate greed may manifest itself in ways which are clearly alien to Smith’s concern for justice, there is no reason to think that this concern prohibits support for a MSOL. But although Smith was not specifically concerned with the rectification of injustice, since the commission of the injustice itself is prohibited, surely the impartial spectator would object to the injustice remaining unaddressed. In other words, it is implausible to think that the spectator ends her indulgence when an injustice is perpetrated, then resumes it after some arbitrary length of time has elapsed. Even if Smith’s concern for justice did not pose a problem for the defense of a MSOL by way of the argument from the Capitalist Premise, 53 Patricia H. Werhane, “The Ethics of Insider Trading,” in Thomas I. White (ed.), Business Ethics: A Philosophical Reader (Upper Saddle River: Prentice Hall, 1993), p. 401; originally published in Journal of Business Ethics 8 (1989). Werhane quotes Smith from Adam Smith, The Wealth of Nations, ed. R. A. Campbell and A. S. Skinner (Oxford: Oxford University Press, 1976), p. 404, n. 6 (IV.ix.51). 54 Adam Smith, The Theory of Moral Sentiments, ed. D. D. Raphael and A. L. Macfie (Indianapolis: Liberty Fund, 1982), p. 83 (II.ii.2.1). 55 See, e.g., “Inside the Telecom Game: How a Small Group of Insiders Made Billions as the Industry Collapsed,” Business Week (August 5, 2002), pp. 34–40.

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the argument remains problematic nevertheless. An amoral, or at best immoral, capitalism is almost entirely self-regarding. Unless we can make sense of individual egoism as a grounding moral perspective for so-called democracies like the U.S., this is a serious problem. Of course, like the “trickle-down” economics of the 1980s, it is only a problem for those who are not among the wealthiest in society. But if we take rectificatory justice seriously, we can never accept such a perspective as morally legitimate. Consequently, we cannot accept the Capitalist Premise as a morally legitimate reason in support of a MSOL. Moreover, embracing the Capitalist Premise seems to be a sure way to an unstable society. As Bernard Boxill warns A harmonious society cannot be based on money-making; it must be based on mutual respect and public acknowledgment of the importance of justice, which do not arise spontaneously in a society devoted to money-making. At best, money-making will suffice when there is such vigorous economic growth that everyone is becoming better off. But what are we to do when economic growth slows and stops as inevitably it must? If we are only money-makers, we will tear each other apart.56

The Counterfactual Premise The next argument is particularly important because it includes an idea upon which many philosophers concerned with rectificatory justice rely, viz., a counterfactual conception of compensation.57 According to the Counterfactual Premise, rights to rectification fade over time given a counterfactual conception of compensation. While employing a counterfactual conception of compensation, George Sher argues that “desert of compensation fades gradually over time, and that ancient wrongs therefore call for no significant amounts of compensation.”58 Like the other claims which assert the diminution of rights, and so rights to rectification, one might infer support for a MSOL from the Counterfactual Premise, and therefore conclude that it gives us a good reason for accepting the moral legitimacy of a statute of limitations on injustice. What I wish to show is that the counterfactual conception of compensation entailed in 56 Bernard R. Boxill, Blacks and Social Justice (rev. ed.) (Lanham: Rowman & Littlefield, 1992), p. 270. 57 See, e.g., Christopher W. Morris, “Existential Limits to the Rectification of Past Wrongs,” American Philosophical Quarterly 21 (1984); Robert Goodin, “Theories of Compensation,” Oxford Journal of Legal Studies 9 (1989); and Ellen Frankel Paul, “Set-Asides, Reparations, and Compensatory Justice.” 58 George Sher, “Ancient Wrongs and Modern Rights,” in George Sher, Approximate Justice: Studies in Non-Ideal Theory (Lanham: Rowman & Littlefield, 1997), Chapter 1, p. 25 [originally published in Philosophy & Public Affairs 10 (1981)].

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such an argument is problematic. Given these problems, the Counterfactual Premise cannot succeed in supporting a MSOL. The popularity of a counterfactual conception of compensation seems to have its beginnings in the work of Robert Nozick. Sher thinks that Nozick’s idea is both “the official view,”59 and the “standard interpretation”60 of compensation. According to Nozick: Something fully compensates a person for a loss if and only if it makes him no worse off than he otherwise would have been; it compensates person X for person Y’s action A if X is no worse off receiving it, Y having done A, than X would have been without receiving it if Y had not done A.61

There are at least two reasons for finding this conception problematic. First, this conception of compensation can yield results in real world situations that run afoul of our intuitions about justice. Consider the following scenario posed by Jules Coleman: I am scheduled to take a plane from New Haven to Washington. Five blocks from the airport, the taxi hits another car. My leg is broken; I’m taken to the hospital; I miss my flight. The plane I would have taken crashes. There are no survivors. Had I caught the plane, I would have died. Only the taxi driver’s recklessness keeps me alive.62

On Nozick’s view, since making me “no worse off than I otherwise would have been” had the taxi driver not driven recklessly and caused me a broken leg is both sufficient and necessary for having been fully compensated, and since I am clearly better off with the broken leg than I would have been had I died in the plane crash, it seems as if the taxi driver may have already fully compensated me for my broken leg by making me miss my flight! However, our intuitions about justice rightly tell us that this view is mistaken. The taxi driver is obliged to give all passengers some reasonable standard of safety. Hence, the broken leg I suffered is a wrongful loss which resulted from the violation of my right to that standard (the reckless driving). The driver owes me compensation. 59 George Sher, “Compensation and Transworld Personal Identity,” in George Sher,

Approximate Justice: Studies in Non-Ideal Theory (Lanham: Rowman & Littlefield, 1997), Chapter 2, p. 29, emphasis in the original [originally published in The Monist 62 (1979)]. 60 George Sher, “Ancient Wrongs and Modern Rights,” p. 18. 61 Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), p. 57. Cf. Robert E. Goodin’s discussion of typical aspects of conceptions of compensation, and compensation without restoration to some status quo ante in “Compensation and Redistribution,” in John W. Chapman (ed.), NOMOS XXXIII: Compensatory Justice (New York: New York University Press, 1991), pp. 143, 163; and my conception of compensation in Roberts, “Justice and Rectification: A Taxonomy of Justice.” 62 Jules Coleman, Risks and Wrongs (Cambridge: Cambridge University Press, 1992), p. 323.

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Further evidence that the result in this case will run afoul of our intuitions about justice emerges when we suppose that the taxi driver actually provides me with some compensation for my broken leg, say, one dollar. According to Nozick, the dollar compensates me for the taxi driver’s reckless driving if I am no worse off receiving the dollar, the taxi driver having driven recklessly, than I would have been without receiving the dollar if the taxi driver had not driven recklessly. Since I am clearly no worse off (in fact much better off) than I would have been without the dollar if the cabby had not driven recklessly (I am alive instead of dead), the dollar fully compensates me for my loss. If we take rectificatory justice seriously, and if we agree that the cabby has wronged me and that I have suffered an unjust loss, justice demands at the very least that the driver counterbalance the cost of my medical expenses. A second reason for thinking that the counterfactual conception of compensation is problematic is that it misses the point of compensation. In so doing, it adds confusion to an already difficult rectificatory landscape. What justice requires in the reckless cabby example is that I be compensated for the unjust loss, my broken leg. Hence, the point is not that I be made no worse off than I would have been without receiving the compensation had the injustice not occurred. Rather, the point is to compensate me for what did in fact take place. It is no wonder, therefore, that we find the counterfactual conception of compensation counterintuitive in cases like the reckless cabby example. So even if it is the case that rights to rectification fade over time given a counterfactual conception of compensation, since the conception itself is problematic, the Counterfactual Premise does not succeed in supporting a MSOL. The Lack of Proof Premise Some might be inclined to object to my entire approach. Taking on the best arguments currently available, with or without objections and replies, and with or without an attempt to provide additional argumentation in support of a MSOL, does not amount to a positive argument in favor of the position that a MSOL is not justified. Rather, my entire analysis only amounts to a critique of the pro-MSOL position. In other words, according to this objection, I have failed to prove the moral illegitimacy of a MSOL. Those who would endorse this position might also endorse the Lack of Proof Premise: There is no proof that justification for a MSOL is impossible. According to the argument grounded in this premise, given this lack of proof, and given that there are at least some arguments which favor a MSOL, a MSOL is justified.

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The obvious difference between this premise and all of the other premises discussed so far must be conceded: this premise is clearly true. I have advanced no proof that justification for a MSOL is impossible. However, there are serious difficulties with the argument from the Lack of Proof Premise nevertheless. The first difficulty is that it does not itself provide a defense of a MSOL, nor does it refute my analysis. At the very least, I have cast serious doubt on the best arguments in favor of a MSOL extant in the philosophical literature. Hence, some further defense of these arguments is required before they can yield justification for a MSOL. Moreover, given that all defenders of a MSOL are calling for a constraint on justice, the “burden of proof” is squarely upon them. The second difficulty is that moral conclusions are generally “not amenable to direct proof.” Although in my analysis of a MSOL I have attempted “such proof as it is susceptible of . . . this cannot be proof in the ordinary and popular meaning of the term.”63 Finally, suppose that my analysis failed completely, and that the burden of proof was not on those who would constrain justice by way of a MSOL. Suppose further that ethical conclusions were generally amenable to proof. Even if all these suppositions were true, the argument from the Lack of Proof Premise would still fail on logical grounds. Since the argument does not prove the moral legitimacy of a statute of limitations on injustice, in effect, it, like all appeals to ignorance, asserts that nothing has been proven one way or the other about a MSOL. The argument then proceeds to conclude something rather definite about a MSOL, viz., that it is justified.64 Hence, like all the other arguments discussed, the argument from the Lack of Proof Premise must also be rejected. As I have tried to show, none of the justificatory arguments discussed provides good reasons in favor of a MSOL such that we ought to accept the idea as morally legitimate. Hence, the idea of a MSOL is not justified. There may, however, be at least two further concerns with my analysis. First, some may want to object to my position because they fear it implies that we must accept the view that all injustices are rectifiable. However, no universal claim of rectifiability is implied by anything I have said here. Indeed, I allowed for the possibility that all injustices may not be rectifiable, and that there can be positive moral implications even when they are not, even when all we can do is symbolic justice. Finally, some may be 63 John Stuart Mill, Utilitarianism, in Mary Warnock (ed.), Utilitarianism, on Liberty, Essay on Bentham (New York: Meridian, 1974), p. 254. 64 Contrary to the traditional view, Douglas Walton argues that all such arguments are not fallacious. See Douglas Walton, “Nonfallacious Arguments from Ignorance,” American Philosophical Quarterly 29 (1992), pp. 381–387.

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inclined to object to my position because they fear it goes too far. It may be thought that if we do not endorse the idea of a MSOL, we must reject the possibility of any morally legitimate constraint on rights to rectification. Nothing in my discussion takes matters this far. I have made no universal claim regarding possible constraints on rectification. Nothing I have said denies the possibility of adequate justification for a MSOL in the future. However, for now, it remains unjustified. Department of Philosophy University of Hawai‘i at M¯anoa 2530 Dole Street, SAK D-301 Honolulu, HI 96822-2383 USA E-mail: [email protected]