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Monday, Mar. 26, 2001

In the past decade, there has been a flurry of activity relating to the question of restitution for historical wrongdoing. The most visible and successful movement for such restitution is probably the one that has grown out of the Holocaust. And the success of the claims made on behalf of Holocaust victims has allowed other groups to ask whether similar claims can be made on their own behalf.

For example, as I recently discussed in a two-part series of columns, the movement to demand reparations for African-Americans' slavery seems to be adopting a legal strategy similar to the one that worked very effectively in the Holocaust reparations movement. That is, the claimants are framing their demands as property claims, and asking those who benefited from the historic wrongdoing at issue to repay the value of the labor that was stolen through slavery.

In my previous columns, I pointed out the legal concerns that make claims for the restitution of property (known as "unjust enrichment" claims) attractive to the lawyers looking to build the strongest case they can. However, I also suggested there are larger policy reasons why even if a claim in unjust enrichment is tactically the most attractive legal avenue, we should be wary of embracing it with too much gusto.

Recently, a controversy broke out over the publication of an ad opposing the movement for reparations for African-Americans' slavery. Events surrounding the controversy give me even more reasons to be skeptical that, whatever the legal advantage, treating claims based upon slavery (and other past historical injustices) as property claims is a misguided cure.

The Controversy Over the Horowitz Ad

David Horowitz is a neoconservative journalist (one who by chance used to be a far-left journalist in the '60's, but switched sides in an infamous conversion). This February, Horowitz attempted to publish an ad entitled "Ten Reasons Why Reparations for Slavery are a bad idea for Black People—and Racist Too" in a series of college newspapers. He selected, it seems, the Ivy League and about ten other major schools, such as Berkeley, Chicago, Wisconsin and Texas.

Eighteen college newspapers, including those of Harvard and Columbia, rejected the ad, because their editors thought it offensive and racist. Some compared Horowitz's effort to purchase advertising space in college newspapers for what was, in effect, a right-wing editorial with an earlier attempt by a Holocaust denier to purchase advertising space in college newspapers to publicize his extremely bizarre view that the Holocaust was a hoax.

As the newspapers pointed out, they are not obliged to accept every advertiser who can afford to purchase as ad. (Many newspapers refuse to run ads for escort services, for example). In addition, they certainly can exercise editorial judgement over potentially fallacious, misleading, and offensive advertisements.

A few newspapers, however, ran the ad. The student paper at Berkeley was besieged by protests after the ad appeared, and published an apology soon thereafter. There were vigorous protests at Wisconsin and Brown after the ad appeared, although the editors of the papers there refused to back down from their decision to publish. As far as I can tell, only at the University of Chicago did the ad appear without encountering a strong hostile reaction.

The aftershocks following Horowitz's ad have produced a lot of agonized and angry editorials in newspapers around the country. The Wall Street Journal, of course, sees the rejection of the ad as evidence of "politically correct" censorship on America's campuses. But many columnists in other major American newspapers (such as The Washington Post) have adopted an anxious ACLU-esque tone, expressing concern about the censorship of unpopular views, and what that might mean for freedom of expression in America.

The Real Problem with Horowitz' Argument

In my view, the Horowitz essay in Salon is deeply offensive on some level, but not because it is racist. Horowitz does not deny that slavery occurred. Nor does he suggest that Africans who were enslaved were not wronged. Nor does he suggest that Africans are inferior in any respect to any other ethnic group. But Horowitz does attempt to set up a sort of balance sheet, to purportedly ascertain which groups benefited from slavery, and how.

Horowitz contends that Africans (and other non-Europeans) participated in, and benefited from the practice of African slavery. He also argues that, since the end of African slavery in America, the descendants of African slaves have benefited from slavery in the sense that they have benefited from living in the United States, rather than in Africa.

Horowitz also notes that in America, European-Americans and other non-African-Americans worked to end African slavery, thus conferring a benefit upon African slaves in America. Finally, he asserts that some non-African-Americans alive in America alive today (especially, he argues, Asian- and Hispanic-Americans) received no benefit from the practice of African slavery

On the basis of these arguments, Horowitz contends that there is no moral basis for returning to the descendants of African slaves the "benefits" of their ancestors' labor that were retained by non-African-Americans in America.

I find Horowitz's argument offensive, and I can also understand why an African American would find it especially offensive. The contention that African-Americans somehow benefited, in certain respects, from slavery minimizes slavery's grave wrongs. The argument that African-Americans now are better off in America than they would have been in Africa, in particular, sounds like justifying a brutal kidnapping on the ground that the victim's children will end up in a country with a higher standard of living.

On the other hand, I think Horowitz' ad should have been run by the university papers — not because they have an obligation to do so, but because Horowitz's view is not based on reasoning that is "totally outside the mainstream," as some have contended. In fact, Horowitz shares some central premises with his enemies: those who are pushing for reparation based on claims of unjust enrichment.

The first and most important premise that Horowitz and his critics share is that the appropriate way to think of the historical oppression of one ethnic group by another is by viewing the wrong as one of stolen property, or unjustly gained benefit. To put it bluntly, the reason why it was, and is, wrong to kill and enslave another race has little to do with the transfer of wealth and everything to do with the idea of human dignity.

Property and tort law are very good at adjudicating the injustice of wrongful acts between persons. It is wrong to kill another person or steal their labor, and each country had laws designed to address that wrong. But the norms of human rights, and justice between groups of people, concerns itself with a different problem entirely.

There is, as international human rights law (and our own civil rights law) recognizes, a special wrong that comes from killing and enslaving other people—whole groups of people—because of their race or religion. That wrong relates to the fact that people still partially structure their identity through race and religion, and when one group destroys that structure for another group, they destroy something more precious than property or even bodily integrity. Thus, to frame the discussion about Holocaust or African slavery in terms of who really benefited is to ask the wrong question at the outset, regardless of the answer.

The second, and related premise is that the wrong of historical oppression "follows the property." It is true that according to the law of unjust enrichment that the legal taint of an unjust act is "carried" so to speak, in the property it produces. But this is a specious way to think about slavery, which happened many years ago, and which involved many social and political institutions, in addition to economic ones.

Why Americans As A Group, Not Just as Individuals, May Bear Responsibility for Slavery

Contrary to what Horowitz argues, non-African Americans may bear responsibility for slavery even if they came to America after 1865, simply because they joined the social enterprise called America. Like any group activity, one must accept as one's own many values, actions, and commitments of others once one embraces the group. That is why being a citizen who is part of a nation is different from, say, being a consumer who is part of a market economy.

Conversely, just because one has benefited from slavery in an economic sense or possesses property that was partially produced by slavery does not mean that one is more or less obliged to respond to the historical wrong of slavery, than if one had never received the benefit, or possessed the property.

In conclusion, I am sorry that the reaction to Horowitz's provocation has been to try to shut him up. His specific view—that in sum, the descendants of African slaves in America were conferred a net benefit by non-Africans, and enjoyed a net benefit from their ancestors' having been enslaved—is easy to rebut. The very question Horowitz asks, however—who benefited from slavery?—is one which many people want to ask now, and I think that it is one that we should resist, both in the courtroom and in the court of public opinion.

Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School.

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