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Beyond Reparations

Ferguson and Actual Justice

by ELLIOT SPERBER

Killed at noon, just down the road from the grave of the slave Dred Scott, Michael Brown has now joined a perennially growing group of dead men and women (a group that only recently added Trayvon Martin, Oscar Grant, Eric Garner, Ezell Ford, Renisha McBride, and others) killed by a combination of institutional racism and systemic poverty. Poverty and race, of course (like race and wealth), cannot be easily disentangled. Not only has the man-made construct of race been used to justify seizures of material resources (gold, timber, land, etc.) from various locales throughout the world, impoverishing these; it has also justified enslaving people, creating immense wealth from slave labor. That is, racial discrimination is not only intertwined with poverty; its obverse, racial privilege, is a key component of affluence. As such, rather than the existence of the two Americas we hear so much about (black and white, rich and poor) there is really mainly one: the parasitic embrace of its constituent parts.

This entanglement of race and poverty, and the relations of domination it implies, demonstrates that poverty should also be regarded as something beyond the absence of economic power. For poverty refers to a condition in which political power, in addition to economic power, is absent. In other words, poverty refers to a lack – or, more accurately, a deprivation – of political-economic power that amounts to something more than political-economic weakness; it amounts to a weakness that leaves people vulnerable to such a degree as to constitute an injury in its own right – a vulnerability which tends to go unseen, taken for granted, and not easily distinguished from the more quantitative harms characteristic of poverty, such as high rates of incarceration, and epidemic levels of preventable diseases.

It is no coincidence, then, that the term injury is not just etymologically related but conceptually related to the notion of justice. And justice, if it means anything at all, requires that this ongoing injury (of marginalization, exclusion, and abuse) be repaired. But how is a society to repair such an injury? What type of repairs, or reparations, must be accomplished to correct this entrenched injustice?

The concept of reparations, of course, requires some clarification. Just what is it that we mean when we refer to reparations? In certain respects this concept overlaps with the equitable notion of restitution – according to which, if justice is to be effectuated, a party injured or harmed by another must be made whole – repaired – by the injurer. As this applies to the African American community, there is no question that the African American community has been monumentally harmed by the political and economic institutions of the United States of America. From insurance companies (such as Aetna) who profited enormously from slavery, to industrial and agricultural companies, not to mention banks, finance, and real estate interests, tremendous fortunes were made – and continue to be enjoyed – from the abuse and exploitation of millions of people. The law has a name for this type of enrichment: unjust enrichment.

Based on the ancient Roman legal maxim nemo locupletari potest aliena iactura - that none should be enriched from an other’s loss – the doctrine of unjust enrichment holds that when one is enriched at an other’s expense, irrespective of the enriched party’s fault, a duty arises to rectify this by disbursing the unjustly acquired enrichment to those harmed in its acquisition. According to the doctrine of unjust enrichment, then, the African American community ought to be reimbursed somehow for the collective injustice it has suffered. Moreover, those who profited from this suffering (and continue to enjoy the wealth and privilege derived from such suffering – a privilege that is nothing short of the obverse of discrimination) should be dispossessed of this unjustly attained advantage.

While the African American community may be among the most wronged people in the history of the US, however, we must not neglect to note that it does not occupy this category singly. Just as Ferguson is a suburb of St. Louis, the so-called Gateway to the West, this gateway opened on to nothing short of the conquest of the continent – and its appropriation, contrary to legally binding treaties, from millions of native people. As such, according to the doctrine of unjust enrichment, the fortunes derived from exploiting the continent ought to also somehow be removed from those unjustly enriched by this, and returned to those unjustly deprived.

In spite of the fact that African Americans and indigenous people have suffered inordinately, it deserves to be mentioned that women and immigrants from across the world – Ireland, Eastern, Central, and Southern Europe, China, Vietnam, and the rest of Asia, as well as from Latin America, among other places – have suffered generations of exploitation as well. In fields, in the depths of coal mines, and in countless sweatshops and factories, countless people have been compelled – at the expense of limbs, lives, and well-being – to produce tremendous wealth and power for a small class of people. Consequently, when discussing the issue of reparations and social justice, we must address the fact that – according to the doctrine of unjust enrichment, at least – most people in this society – the urban poor, the rural poor, the working class, and even the middle class – deserve some form of reparation. How, however, does one begin to repair this widespread impoverishment?

Because money derives its value in part from scarcity, exploitation, and debt – and, so, requires poverty and exploitation to function – money can only superficially correct the basic problem of poverty/social injustice. Instead of thinking about reparations as the distribution or redistribution of money, or of other commodities (the value of which is restricted to its exchange-value – i.e., money), then, we should recognize that actual justice, and actual peace, requires social relations that are not regulated by the drive for profit (i.e., peace requires social relations that are non-exploitative). As such, a step toward an actually just society can be accomplished not by distributing commodities but, rather, by decommodifying that which is necessary for an actually democratic society. Instead of remaining within the sphere of commerce, and subject to its whims, that which is necessary for human flourishing should not be available conditionally, in exchange for something else. Housing, nutritious food, water (as the situation in Detroit is making so clear), not to mention health care, education, communications, transportation, and other resources necessary for the realization of an actually just, actually democratic society should not only be inalienable (not for sale), an actually just society’s priority would be to supply these conditions directly. Producing and maintaining housing, food, livable cities, healthy ecosystems, and other conditions, would be a just society’s job – as well as its reward.

Beyond the obvious calls for the demilitarization of the police, and of the removal of money from politics – and even beyond the more intrepid calls for the abolition of the United States’ metastasizing prison system – actual justice and actual peace (the absence of which has been amply illustrated by the unrest in Ferguson) requires not just redistributing political-economic power; actual justice and actual peace requires neutralizing coercive political-economic social relations. Beyond the superficial justice involved in hauling off cops to prison, by de-commodifying and universally supplying those conditions that are an actually democratic society’s precondition we can move concretely toward social conditions of actual justice, and actual peace.

Elliot Sperber is a writer, attorney, and teacher. He lives in New York City, and can be reached at elliot.sperber@gmail.com