Reparations and Unjust Enrichment

35 Pages Posted: 20 Sep 2004

Date Written: August 19, 2004

Abstract

Despite an initial appearance of superior doctrinal fit, restitution is not an appropriate vehicle for reparations claims based on slavery and similar large-scale historical injustices. The justifying principle behind restitution - prevention of unjust enrichment - lacks the moral force necessary to resolve a controversial public dispute about moral rights and obligations among segments of society. At its core, a claim to restitution is an attempt to right a wrong not by alleviating the adverse consequences to oneself, but by diminishing the position of others. In other words, the notion of unjust enrichment is a comparative idea that draws on resentment and the desire for retaliation, rather than the desire to be made whole. Retaliatory impulses probably are inevitable in human affairs, and if so it may be wise to include some avenues for retaliation among the legal remedies available in private disputes. In a public controversy of considerable social significance, however, resentment and retaliation should not be accommodated by law.

Suggested Citation

Sherwin, Emily L., Reparations and Unjust Enrichment (August 19, 2004). Available at SSRN: https://ssrn.com/abstract=580802 or http://dx.doi.org/10.2139/ssrn.580802

Emily L. Sherwin (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

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