Superseding Historical Injustice and Changed Circumstances

Redressing the past today remains an important problem. Past injustice has often left a legacy in the present, with many individuals and groups suffering disadvantages from its lasting effects. Many peoples suffer from mass displacement. Many victims (and their successors) have yet to receive compensation for what was taken. Injustice endures because of radical injustices like exile, trauma, damages to collective narratives, a history of mistrust, and disputes over sacred spaces. On what grounds should justice be concerned about past injustice? Does it matter that an existing disadvantage was caused by a past injustice or not? If a group or individual was damaged through past injustice, but is now well-off, should justice be concerned to redress a past injustice, or should justice look forward and be concerned only with present disadvantage? How much should justice be concerned with the structure of the relationship between parties and aim at reconciliation? When is a forward-looking orientation best, when is a backward-looking orientation best, and when should we transition between the two? To answer these questions, we look to analyze and critically develop the thesis that historical injustice can be superseded. For example, if it were unjust for settlers to seize indigenous lands in 1865, changes in circumstances, such as population increases and environmental conditions, might make it unjust in 2016 to simply return the land and resources originally taken. The supersession thesis (named by legal and political theorist Jeremy Waldron) has become extremely influential among theorists both skeptical and supportive of reparations for past injustice. What are different possible versions of the supersession thesis? How might its theoretical structure be further analyzed and developed? Which changes in circumstances matter? How can justice be superseded in different contexts and cases? Four different types of supersession will be examined, relating to (1) property, (2) attachment to land in the sense of mass expulsion, genocide, and settlement, (3) group identity, and/or (4) sovereignty. Our method will involve applying our principles to specific cases to see if they match our judgments about these cases. If the principles and judgments do not match up, we will need to reflect further and adjust either our principles or judgments and bring them into equilibrium. Our exploration of a further universe of cases may cause further reflection and adjustment of our principles on historical injustice. We hypothesize that the best version of the supersession thesis is affected by how much it creates perverse incentives to unjustly change circumstances. We hypothesize that group rights may be appropriate when true reconciliation is impossible. We aim to develop a theory of supersession that properly integrates concerns of present-day needs, historical claims, and whether relationships are justly structured.

The primary aim of the FWF project "Superseding Historical Injustice and Changed Circumstances" was to critically develop the supersession thesis (formulated by Jeremy Waldron) and examine its relevance in understanding particular cases of historical injustice. The structure of the supersession thesis is as follows: If a historical injustice occurs leading to an unjust situation, morally relevant changes in circumstances can occur over time, such that justice does not require returning to the prior situation. In our project proposal, we distinguished two ways to frame the usage of the supersession thesis. First, we examined the temporal orientation of justice. Second, we investigated Jeremy Waldron's particular conception of supersession. We began this project by scrutinizing a version of the thesis according to which situations of need shift the temporal orientation of justice from a backward-looking to a forward-looking orientation. However, throughout the project, we discovered that it is inaccurate to claim that backward-looking reasons of rectificatory justice are no longer morally relevant in present situations of need. We highlighted that Jeremy Waldron's work on supersession focused mainly on restitution, which requires returning the object that was initially taken. We extended the supersession thesis to issues of compensation, group identity, sovereignty, rights of future people, linguistic injustice, climate justice and structural injustices. The main theoretical contributions to the field are the following: Meyer and Waligore distinguished between those cases in which historical claims have no weight in determining what ought to be the case and those in which although it might be unjust to return to the state prior to the injustice, this does not imply that the effects of the historical injustice are completely annulled. They distinguish between instances in which claims to redress historic injustice lie dormant at a certain time but can become relevant in the future from cases where the supersession is final. They extended the analysis of the supersession thesis from claims to restitution to those of compensation. Further, they highlight two further areas of research: symbolic compensation towards deceased victims of historical injustice and the relationship between the supersession thesis and the structural character of historical injustices. Lukas Meyer has analysed contemporary demands for the restitution of cultural colonial goods. Timothy Waligore also argued that the structural injustice approach could have a more backward-looking temporal orientation to justice. Santiago Truccone-Borgogno distinguished between cases where duties stemming from past injustices lose their moral weight from those in which rights (but not duties) ceased to exist. He also showed that groups do not cease to exist when changes in circumstances affect their identity, and that rights of future people can be superseded. Seung Hyun Song extended the use of the supersession thesis to issues of linguistic injustice.