Fixing A Hole: How the Criminal Law Can Bolster Reparations Theory

Abstract

High-profile popular-press authors recently have challenged the mainstream consensus that certain historical events should be condemned as injustices. These authors argue that such condemnation unfairly imposes modern standards on historical actors. Until now, the redress movement has largely ignored these partisan revisionists who have sought to justify the harmful decisions made by past generations. Such revisionism, however, threatens the very foundation of reparations theory by persuading the public that redress is unnecessary because historical figures actually committed no injustice by merely acting appropriately, given the historical context in which they lived. This Article seeks to initiate a dialogue regarding how to approach the task of defining a historical injustice. The Article draws an analogy to the criminal law's "cultural defense," proposing a framework by which legal scholars may fairly judge the wrongdoing of historical actors. Although the analogy between foreign cultures and historical eras is imperfect, it presents a useful starting point to stimulate critical discussion about how best to address the growing structural weakness in the foundation of reparations theory. The past, they say, is another country. —Rhys Isaac