Restitution and Slavery

39 Pages Posted: 15 Jun 2004

Date Written: May 24, 2004

Abstract

This Article claims that the very theories that best illuminate law's ordinary treatment of claims for restitution for wrongful enrichment and of cases of legal transition also help address some difficult challenges faced by the recent restitutionary reparation claims for wrongful enslavement. It advances six propositions. First, that because restitution for wrongful enrichment can vindicate plaintiffs' autonomy interests, rather than merely their lost utility, allowing claims for wrongful enslavement need not commodify the horrors of slavery. Second, that in order for wrongful enslavement claims to vindicate autonomy, the applicable measure of recovery should include the perpetrators' ill-gotten gains, rather than (merely) the slaves' lost wages. Third, that where restitution vindicates autonomy, allocating responsibility between defendants is unnecessary, because in such cases each is liable to disgorge its ill-gotten gains. Fourth, that because the question of whether descendants of slaves should have standing in pursuing restitution is, at its core, a concern of transforming the ancestors' inalienable right to control their labor into money, standing should be allowed if the descendants' claim is understood as a vindication of the infringement of their ancestors' rights which continuously and directly devastates their own dignity. Fifth, that the restitutionary defense of bona fides purchaser for value can be understood as an alternative, and indeed superior, doctrinal tool to that of limitations in dealing with the difficulty of intergenerational justice entailed by the attempt to redress historic wrongs. Sixth, that past legality (even constitutionality) of slavery need not bar restitutionary claims for wrongful enslavement because legal transition rules at times impose - and indeed should impose - some of the burden of our moral progress on beneficiaries of our past immorality.

Suggested Citation

Dagan, Hanoch, Restitution and Slavery (May 24, 2004). Available at SSRN: https://ssrn.com/abstract=556262 or http://dx.doi.org/10.2139/ssrn.556262

Hanoch Dagan (Contact Author)

Berkeley Law School ( email )

890 simon hall
215 Bancroft way
berkeley, CA 94720
United States

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