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Dennis Klimchuk

Abstract of: Dennis Klimchuk, Unjust Enrichment and Reparations for Slavery, 84 Boston University Law Review 1257-1275, 1257-1259 (December, 2004)(67 Footnotes omitted)

As a number of commentators have argued, and as recent developments in the slavery reparations litigation attest, actions in unjust enrichment brought by descendants of African American slaves against corporations that benefited from slavery face a number of serious procedural and substantive hurdles (barriers, on some tellings). Without meaning to suggest that these problems - for example, limitation periods and difficulties with tracing and quantifying the enrichment - are mere technicalities that do not also raise questions of justice, or are otherwise unimportant, I would like to set them aside. My concern here is with a moral objection to framing claims for reparations for slavery as claims in unjust enrichment. The objection, pressed by Tony Sebok in a series of recent articles, applies in particular to claims aiming to recover the value of slave labor and profits derived from it. Sebok's objection is that framing the reparations claim in this way profoundly misrepresents the wrong of slavery. "If you want to be overly literal," he argues, "to enslave someone is to force him to work without pay. But that's an impoverished understanding of what happened . . . during the period of American slavery." It is impoverished because it "suggest[s] that the wrong of slavery is that, after they were kidnapped, beaten, and abused, Africans and their descendants were not salaried." In short, it reduces the grossest of human rights violations to an outstanding bill for services.

This is a deep and important criticism. This criticism draws attention to an aspect of private law to which more attention is due, namely what we might call the moral-expressive content of legal actions. A quick, but only partial, answer is that Sebok's criticism overstates the reductive message of the recent litigation, in which unjust enrichment is only one of a number of causes of action brought, and the retention of unpaid wages and resulting profits only one of a number of wrongs alleged. Still, the criticism matters, because even if one among many, the unjust enrichment claim is being made. Furthermore, if sound, it reaches not only the recent litigation, but also a long line of arguments in support of legislated reparations that rest (at least in part) on the claim that the unremunerated value of slave labor represents a persisting unjust enrichment at the expense of the descendants of slaves.

I will argue, however, that the moral-expressive content of the claim in unjust enrichment gets the wrong of slavery exactly right. The bulk of my paper is taken up with outlining the account on which my analysis rests. I'll begin there, and return to the slavery claims only in the final section.

[1]. Associate Professor, Department of Philosophy and Faculty of Law, The University of Western Ontario.