As we speak, 14 Caribbean nations are planning a lawsuit against Great Britain, the Netherlands, and France, seeking reparations for slavery. As a law student, I immediately began questioning how the legal process would work. How do we calculate such damages? Who has standing to bring such a suit? Can a current government be legally accountable for a past government’s actions? What about those citizens who immigrated to their countries post-slavery? Can they be held accountable for their new country’s past actions?
After a moment, though, I realized that the real problem isn’t with this lawsuit. The problem is with me. And, more importantly, the problem may be with law itself.
Too often, we find ourselves reducing or translating moral problems to legal problems. In discussing drone strikes, we somehow forget human lives (“collateral damage”) and solely focus on whether the AUMF (Authorization for the Use of Military Force) or international law fully covers such actions. In discussing campaign finance, conversations inevitably devolve into disclosure rules and whether a certain requirement would be overturned. While important, such discourse misses a fundamental point: Law is morality. Law is the morality that we make, the morality that we choose to codify. Law is a statement and expression of our values and beliefs as a society. Focusing only on legality, then, cannot shield us from a deeper responsibility — the responsibility to assess not what we can do now, but what we should do as human beings.
Let’s return to reparations. Divorced from legal jargon, we have a fascinating debate at hand. Should we be bound to repay our ancestors' debts? Or, better yet, societal debts that may or may not have had anything to do with our ancestors? For many, the knee-jerk answer is no. If my grandfather punched someone, that wrongdoing in no way implicates me. I didn’t do anything wrong. So why should I have to pay?
For a moment, though, flip the tables. What if your grandfather had won a lottery, bequeathing you a $1 million? Must you also refuse every penny that your parents try to give you, since your grandfather’s luck also had “nothing to do” with you? Better yet, let’s remove luck entirely. What if your grandfather had worked his butt off shining shoes for 18 hours a day, built a shoe empire, and then left his family every penny? Can you accept that money — a sum so formidable that you need never lift a finger? Do you have a moral right to that wealth? After all, let’s not forget, his actions in no way implicated you.
These questions leave many people uncomfortable. We may not want to take responsibility for our ancestors’ wrongdoings, but we have few qualms benefiting from their successes. To be sure, it could be argued that the situations are different because your grandfather’s wealth has been steadily compounding. It’s been put to good use, financing education, putting others to work, helping banks make loans and catalyzing new investments. In short, that money has become yours because you’ve used it constructively.
But can’t disadvantage accrue, too? If your grandfather had money, your father probably had a better childhood, a better education, and social capital. If your grandfather was enslaved, discriminated against and otherwise oppressed, he probably had less to offer his children, leaving them further and further behind. In short, this, too, is a coin with two sides. And the longer we watch it spin, the more uncomfortable we get.
Returning to our Caribbean nations, I see no hope of a courtroom victory. It doesn’t take a lawyer to know that contemporary legal systems, narrowly tailored to address individual claims that address specific wrongs perpetrated by specific actors, will fail to deliver on an issue so broad and complex.
But this is where the conversation should start, not end. After all, this case is implicating Great Britain, France, and the Netherlands, but we as Americans have our own soul-searching to do. Put bluntly, can we ever have a “statute of limitations” on moral responsibility? Examining our history of slavery, discrimination and subjugation, are we responsible for righting wrongs that our ancestral countrymen inflicted? Even if we never owned a slave? Even if we only arrived in America 20 years ago? Or two years ago? Or yesterday? Can a society have responsibility when no individual legally does?
These aren’t legal questions, but moral ones. And for law students and non-law students alike, we should remember that.