Studying the Law of Remedies and damages has lead to an interesting crossover in my mind. This branch of law deals with negligence and harms done that may be remedied by court action. The general 'remedy' is money , and the measure of money is found by a variety of principles -
one of them the Restitutio in integrum principle that the claimant must be put back in the position he was before the harm occurred.
While the common law of damages does not apply in any real way to the debate on Reparations , there is some benefit in looking at the situation from this paradigm. For one it explains why all the african-americans in the US (or any common law nation) can't come forward with a class action law suit against former slave owning families and corporations for the harms of slavery.
Let me say here in advance : I do believe that Colonialism is directly responsible for the state of the African continent - having destroyed whole nations and civilizations over hundreds of years. The descendants of slaves in the west are still affected by the legacy of slavery. The destruction of traditional african values and the family unit in by slavery can be seen today - especially in the caribbean .
I remember having a debate with my friends at the USC debating society , Jean Claude Cournand , Angelo Hart , Adali Baisden , Brandon O'brien etc. The conclusion was (if i remember correctly) that african people in the west have spent more time being slaves than being free and slavery is still attributable for the social ills associated with blacks.
Thus i do believe European nations and old money families who owned slaves owe african peoples reparations for the damage done - damage that still is felt today. I do believe they also owe India , China and all the nations they abused in their rise to power. ( i am mixed with every major ethnic group so i have a vested interest in all these debates) .
So onto my thought experiment :
Many problems arise if you try to apply the rigid standards of law to the debate of reparations . Since the basic measure of damages is 'putting the claimant back in the position he was in before the harm occurred' How does one go about finding the 'original state' of Africa's wealth in the 15th and 16th centuries? (whenever the trans-atlantic salve trade started - i'm no historian) .
How does one measure the value of a Civilization and culture - and a homeland?
There are many other aspects of damages to consider as well - Exemplary or Punitive damages would seek to punish wrongdoers for doing highly immoral acts. Chattel slavery probably the most immoral thing in modern history - The Jewish holocaust being one of the few other incidents that could begin to match the trans atlantic slave trade + the horrors experienced by slaves in the new world. (without prejudice to anyone's ethnicity - i remember an uproar in Cavehill when Dr. Berry compared the holocaust to slavery )
Exemplary damages are a 'peculiar feature of the common law' (as said in one of the Trinidad Cement caes before the CCJ ) and not seen in international law or other legal systems such as the french 'Civil Code'- so it may be a stretch for them to actually be given if such a claim did occur.
So how much money can compensate for one of the most immoral acts in history? 100 billion ? 1 Trillion? Do you also charge interest for 'being kept out of monies owed to you' over the hundreds of years since slavery ended? Do you demand a lump sum or payments in installments?
One more aspect that would be looked at : the issue of causation . There are several principles used to establish causation but generally if the damage that occurred was 'reasonably foreseeable' then causation can be founded. However the law sets limits on 'foreseeability' and causation by principles relating to the remoteness of damage ,which is best explained by reference to a case :
Bourhill v Young [1943] AC 92 is a Scottish delict case, on the subject of how extensive an individual's duty is to ensure others are not harmed by their activities. The case established important boundaries on the scope of recovery for bystanders, or those uninvolved with physical harm. Where a woman suffered psychiatric harm after walking onto the scene of a motorcycle accident, she was deemed not to be a foreseeable victim, having not been in immediate danger of physical harm.
Facts
On the 11th of October, 1938, Mr Young had been negligently riding a motorcycle along a road, and was involved in a collision with a car, fatally injuring him. At the time of the crash, Mrs Bourhill was about to leave a tram which she had been riding, around 50 ft from the scene of the accident. Mrs Bourhill heard the crash, commenting "I just got in a pack of nerves, and I did not know whether I was going to get it or not."[1] Following the removal of Mr Young's body from the road, she approached the scene of the accident, seeing the blood remaining from the crash. Mrs Bourhill, at the time eight months pregnant, later gave birth to a stillborn child, and claimed she had suffered nervous shock, stress and sustained loss due to Mr Young.[2]
Applying these principles to the debate on reparations : it can be said that slavery and colonialism is a direct cause of much of the social ills and poverty plaguing Africa and african peoples in the west - but where would you draw the line?
The debate can get quite interesting from this perspective as you can see - its a debate that is worth exploring (perhaps by law students - Maybe in future Remedies law classes so that we dont fall asleep).
( This post is merely me musing on the impact of colonialism and slavery from a different perspective. I do not intend to offend or insult any group - but the nature of my political positions is generally offensive so i do apologize in advance. I also apologize for my grammar- no time to edit)
addendum : a foreseeable counterargument to all this is that the European Union is the largest donar of aid in the world (last time i checked) and the US and England also give generously - so do these constitute reparations - or another moral obligation?
