Monday, January 21, 2008

Atuahene on Reparation, Restoration, and Property in South Africa

Bernadette Atuahene (Chicago-Kent) has posted the final version of From Reparation to Restoration: Moving Beyond Restoring Property Rights to Restoring Political and Economic Visibility on SSRN.  Here's the abstract:

How does a democratic state legitimize strong property rights when property arrangements are widely perceived to be defined by past theft? The answer, I argue, is through restorative justice measures that redistribute wealth based on past dispossession. This answer, however, leads to two more complex questions: Who gets priority in the restorative process given limited resources and how should the process unfold? The concise answers to these two ancillary questions are:

First, instances of what I call property-induced invisibility should be prioritized as a baseline for achieving legitimacy. When property is confiscated in this manner people are removed from the social contract and made invisible. Widespread invisibility is of particular concern because it can lead to chaos and instability and places the legitimacy of existing property arrangements in serious doubt. Consequently, states must, at minimum, rectify property-induced invisibility in the restorative process.

Second, societies must change the focus from restoration of the physical property confiscated to the larger project of restoring an individual's relationship to society. This will happen if those subject to property-induced invisibility are included in the social contract through a bottom-up process that provides the dispossessed with asset-based choices. The process of allowing people to choose how they are made whole will do a substantial amount of work towards correcting property-induced invisibility and thereby increasing the legitimacy of existing property arrangements.

I use a South African case study to test the practical effect of my theories of invisibility and restoration.

Here's a lengthier description:

In this article I explore two important questions facing countries that decide to give communities and individuals compensation for property stolen in the past:  Who at minimum should be restored; and how should the restorative process transpire?

As to the first question, I argue that, at minimum, the state has a moral obligation to compensate people who have been subjected to severe dehumanization as a result of an uncompensated property confiscation.  My claim is that this confiscation of property results in property-induced invisibility—that is, people are removed from the social contract and made invisible. Instances of property-induced invisibility can be seen throughout history among native peoples whose land was stolen through conquest.  Also, Tutsi and moderate Hutu subjected to property confiscation during the Rwandan genocide, and non-whites dispossessed during the Apartheid government’s incessant campaign of dehumanization would be modern-day examples of victims of property-induced invisibility.   

As to the second question, I argue that societies must redirect their focus from the limited concept of reparations (where the goal is securing compensation for past wrongs but the state does not allow the dispossessed to choose how they are compensated) to restoration.  Restoration is the larger project of restoring a dispossessed group or individual’s relationship to society, including them in the social contract and thereby reversing the condition and effects of property-induced invisibility.  This is accomplished through a bottom-up process that provides asset-based choices, which both allow people to choose how they are made whole and give them viable options from which to choose.  The options can include the return of their property (if possible), alternative property, monetary compensation, free higher education for two generations, priority in an already established housing process, or highly subsidized access to credit, for example.

Finally, I evaluate South Africa’s Land Restitution Program (LRP) to test the theoretical concepts of property-induced invisibility and restoration that I construct.  More specifically, I investigate whether, as a baseline, South Africans subject to property-induced invisibility benefit from the LRP.  In addition, I analyze how the government can transform the LRP from a reparations program to a restoration program.

This article is Part I of a three-part trilogy.  Part II will explore how a state can avoid instability when past property theft causes a significant number of people to believe that the present property distribution is illegitimate.  Part III will examine how far back a state should look in devising a compensation program when there have been multiple layers of property dispossession.

This is a really interesting article.  As Solum says, download it while it's hot!

Ben Barros

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Posted by: aldex | Jul 10, 2014 8:45:57 AM

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