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Dennis Klimchuk
Abstract of: Dennis Klimchuk, Unjust
Enrichment and Reparations for Slavery, 84 Boston University Law Review
1257-1275, 1257-1259 (December, 2004)(67 Footnotes omitted)
As a number of commentators have argued, and as recent developments in
the slavery reparations litigation attest, actions in unjust enrichment
brought by descendants of African American slaves against corporations
that benefited from slavery face a number of serious procedural and
substantive hurdles (barriers, on some tellings). Without meaning to
suggest that these problems - for example, limitation periods and
difficulties with tracing and quantifying the enrichment - are mere
technicalities that do not also raise questions of justice, or are
otherwise unimportant, I would like to set them aside. My concern here
is with a moral objection to framing claims for reparations for slavery
as claims in unjust enrichment. The objection, pressed by Tony Sebok in
a series of recent articles, applies in particular to claims aiming to
recover the value of slave labor and profits derived from it. Sebok's
objection is that framing the reparations claim in this way profoundly
misrepresents the wrong of slavery. "If you want to be overly
literal," he argues, "to enslave someone is to force him to
work without pay. But that's an impoverished understanding of what
happened . . . during the period of American slavery." It is
impoverished because it "suggest[s] that the wrong of slavery is
that, after they were kidnapped, beaten, and abused, Africans and their
descendants were not salaried." In short, it reduces the grossest
of human rights violations to an outstanding bill for services.
This is a deep and important criticism. This criticism draws attention
to an aspect of private law to which more attention is due, namely what
we might call the moral-expressive content of legal actions. A quick,
but only partial, answer is that Sebok's criticism overstates the
reductive message of the recent litigation, in which unjust enrichment
is only one of a number of causes of action brought, and the retention
of unpaid wages and resulting profits only one of a number of wrongs
alleged. Still, the criticism matters, because even if one among many,
the unjust enrichment claim is being made. Furthermore, if sound, it
reaches not only the recent litigation, but also a long line of
arguments in support of legislated reparations that rest (at least in
part) on the claim that the unremunerated value of slave labor
represents a persisting unjust enrichment at the expense of the
descendants of slaves.
I will argue, however, that the moral-expressive content of the claim in
unjust enrichment gets the wrong of slavery exactly right. The bulk of
my paper is taken up with outlining the account on which my analysis
rests. I'll begin there, and return to the slavery claims only in the
final section.
[1]. Associate Professor, Department of Philosophy and Faculty of Law,
The University of Western Ontario. |
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