Historic Injustice, Group Membership and Harm to Individuals: Defending Claims for Historic Justice from the Non-Identity Problem

48 Pages Posted: 19 Mar 2008 Last revised: 15 Apr 2015

See all articles by Ori J. Herstein

Ori J. Herstein

The Hebrew University of Jerusalem, Faculty of Law; King's College London - Dickson Poon School of Law

Date Written: March 3, 2008

Abstract

Some claim slavery did not harm the descendants of slaves since, without slavery, its descendants would never have been born and a life worth living, even one including the subsequent harms of past slavery, is preferable to never having been born at all. This creates a classic puzzle known as the non-identity argument, applied to reject the validity of claims for historic justice based on harms to descendants of victims of historic wrongs: since descendants are never harmed by historic wrongs, they have no right to rectification. This conclusion is unintuitive.

This article explains the nature of harm involved in historic injustice, overcoming the hurdle the non-identity argument poses to historic justice claims. Historic injustice and the harms it generates are best understood as group harms. Claims for historic justice can be grounded in harms currently living individuals suffer as a function of the harms their group or community currently suffers as a consequence of historic wrongs. One form of harm, constitutive harm, differs from the aggregative account of harm assumed by the non-identity argument and is immune to it. It is the type of harm people suffer as members of certain historically wronged groups and communities. Therefore, the constitutive harm people suffer in cases of historic injustice may serve as a basis for justifying claims for historic justice.

Keywords: Historic injustice, law, philosophy, historic justice, non-identity problem, non-identity argument, justice, reparations, parfit, compensation, rectification, harm, group harm, identity

JEL Classification: K1, K13, K19

Suggested Citation

Herstein, Ori J., Historic Injustice, Group Membership and Harm to Individuals: Defending Claims for Historic Justice from the Non-Identity Problem (March 3, 2008). Harvard Journal of Racial and Ethnic Justice,Vol. 25, p. 229, 2009, formerly Harvard BlackLetter Law Journal, Columbia Public Law Research Paper No. 08-174, Available at SSRN: https://ssrn.com/abstract=1108130

Ori J. Herstein (Contact Author)

The Hebrew University of Jerusalem, Faculty of Law ( email )

Mt. Scopus
Jerusalem, 91905
Israel

HOME PAGE: http://law.huji.ac.il/eng/segel.asp?staff_id=190&cat=441

King's College London - Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

HOME PAGE: http://www.kcl.ac.uk/law/people/visiting/oherstein.aspx

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