Demands for the return of stolen property or payment of reparations rely on concepts associated with the rule of law such as compensation for breach of binding agreements, unjust enrichment or restitution. In that sense social justice activists claim to demand no more than what rightfully belongs to them. This chapter examines the extent to which these claims are consistent with the normative foundations of the rule of law. What is meant by the rule of law in the context of redressing historical injustice? The chapter answers that question by drawing upon principles of natural law and natural rights. We argue that law which violates principles self-ownership and individual liberty cannot rightly be deemed to be compatible with the rule of law.
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Rothbard, M. N. (2002). The Ethics of Liberty. New York University Press (original publication 1982), p 17.
Mises, L. v. (2012). Human Action: A Treatise on Economics. Martino Publishing, p 650.“Rights and title holders in the City of Vancouver are the Musqueam, Squamish, and Tsleil-Waututh within the meaning of UNDRIP [United Nations Declaration of the Rights of Indigenous Peoples] …The City of Vancouver has the responsibility to provide rights-based programming and services to the diverse Indigenous populations”: City of Vancouver’s UNDRIP Strategy: Report of the UNDRIP Task Force to the City of Vancouver Mayor & Council (2022, October 25) https://council.vancouver.ca/20221025/documents/p1.pdf.
Kukathas, C. (2019). Libertarianism Without Self-Ownership. Social Philosophy and Policy, 36(2), 71, p 86.
Bingham, T. (2010). The Rule of Law. Allen Lane, p 82.Eagle, S. J. Assembling Land for Urban Redevelopment: The Case for Owner Participation. In Benson, B. L. (Ed.). (2010). Property Rights: Eminent Domain and Regulatory Takings Re-Examined. Palgrave Macmillan, p 8.
Staley, S. R. The Proper Uses of Eminent Domain for Urban Redevelopment: Is Eminent Domain Necessary? In Benson, B. L. (Ed.). (2010). Property Rights: Eminent Domain and Regulatory Takings Re-examined. Palgrave Macmillan, p 27.
Locke, J. (1980). Second Treatise of Government (C. B. Macpherson, Ed.). Hackett Publishing. Hayek, F. A. (1960). The Constitution of Liberty. University of Chicago Press, p. 1. Waldron, J. (2012). The Rule of Law and the Measure of Property. Cambridge University Press. Leoni, B. 1961. Freedom and the Law. D. Van Nostrand Company, pp 58, 59. Bingham, The Rule of Law, p 3. Rothbard, Ethics of Liberty, p 17. Mises, Human Action, pp 755, 756. Hayek, The Constitution of Liberty, p 11. Ibid., p 205.See Waldron, The Rule of Law, p 6, for a discussion of Dicey’s view: “Nor did Dicey make any connection with property except obliquely in a reference to “goods” … “No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law”, p 16.
Waldron, The Rule of Law, p 17.Ibid., p 19. See Epstein, R. A. (2011). Design for Liberty: Private Property, Public Administration, and the Rule of Law. Harvard University Press.
Gordon, D. (August 9, 2012). Waldron’s Rule of Law. Mises Daily Articles. https://mises.org/library/waldrons-rule-law.
Dorn, J. Piketty’s Plan for Equality Would Reduce Personal Freedom and Undermine Growth. In Delsol, J.-P., Lecaussin, N., and Martin, E. (Eds.). (2017). Anti-Piketty: Capital for the 21st Century. Cato Institute, p 235.
Waldron, The Rule of Law, pp 16, 17. Block, W. (2019). Property Rights: The Argument for Privatization. Palgrave Macmillan, p 23. Hayek, The Constitution of Liberty, p 103. Ibid., p 104. Waldron, The Rule of Law, p 12. Hayek, Constitution of Liberty, p 206. Ibid., p 179.“the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation”: Bingham, T. (2007). The Rule of Law. Cambridge Law Journal, 66(1), 67, p 73.
Hayek, The Constitution of Liberty, p 85. Rothbard, The Ethics of Liberty. Sowell, T. (1993). Is Reality Optional? And Other Essays. Hoover Institution Press.Rhodes, C. (2021). Woke Capitalism: How Corporate Morality Is Sabotaging Democracy. Bristol University Press.
Sherwin, E. (2004). Reparations and Unjust Enrichment. Boston University Law Review, 84(5), 1443.Posner, E. A. and Vermeule, A. (2003). Reparations for Slavery and Other Historical Injustices. Columbia Law Review, pp 103, 689, 698.
Block, Property Rights, p 140. Posner and Vermeule. Reparations for Slavery and Other Historical Injustices, p 700. Waldron, Redressing Historic Justice, p 158.Thomas, D. A. (1996). Adverse Possession: Acquiring Title to Stolen Personal Property. Probate & Property, 10(12), p 12.
Waldron, Redressing Historic Injustice, p 137.Shaw, W. H. (2003). They Stole Our Land: Debating the Expropriation of White Farms in Zimbabwe. The Journal of Modern African Studies, 41(1), 75.
Block, Property Rights.See for example Loth, M. (2020). How does Tort Law deal with Historical Injustice? On Slavery Reparations, Post-Colonial Redress, and the Legitimations of Tort Law. Journal of European Tort Law, 11(3).
Howard-Hassman, R. (2011). Reparations to Africa. University of Pennsylvania Press.Miller, E. (2004). Reconceiving Reparations: Multiple Strategies in the Reparations Debate. 24 B.C. Third World L.J. 45.
Butt, D. (2014). ‘Reparations and the End of Empire’. https://blog.politics.ox.ac.uk/reparations-happen-end-empire/; see also Butt, D. (2012). Repairing Historical Wrongs and the End of Empire. Social & Legal Studies, 21(2).
Sowell, Cosmic Justice. Mises, Human Action, p 678. Sternberg, E. (2015). Defining Capitalism. Economic Affairs, 35(3), 380, p 386.“Comprehensive private property presupposes the existence of private property, and thus the rule of law. Rule of law here only requires the operation of some institution(s) capable of enforcing the absence of coercion and the performance of contracts. Neither private property nor the rule of law requires the existence of an institution that claims a monopoly on the legitimate use of physical force in a geographical area–government as it is often understood”: Sternberg, Defining Capitalism, p. 386.
Mises, Human Action, p 679. Rothbard, Ethics of Liberty. Waldron, Redressing Historic Injustice, p 140. Barnes v Addy (1874) 9 Ch App 244, 251.“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” Carroll, L. (1934). Through the Looking-Glass. Dodge Publishing, p 205.
Eagle, Assembling Land for Urban Redevelopment, p 11. The Expropriation Bill [B23-2020] https://www.parliament.gov.za/project-event-details/1670.Clause 12 of Bill B23-2020 “provides for situations wherein it may be just and equitable and in the public interest to pay nil compensation for land earmarked for expropriation” in certain circumstances for example where it is purchased as an investment rather than immediate practical use. https://www.parliament.gov.za/storage/app/media/Bills/2020/B23_2020_Expropriation_Bill/B23_2020_Expropriation_Bill.pdf.
The Expropriation Bill [B23-2020] https://www.parliament.gov.za/project-event-details/1670.For example a private members’ bill in the Republic of Ireland: “This Bill seeks to delimit the protections given to private property in favour of the common good, which does allow, even under our Constitution, the Government to override private property rights.” Thirty-ninth Amendment of the Constitution (Right to Housing) Bill 2020 available at https://www.oireachtas.ie/en/debates/debate/dail/2021-06-03/46/; similarly in South Africa: “The main objective of this Bill is to ensure that expropriation laws are in line with the Constitution of South Africa. The Bill will clearly outline how expropriation can be done and on what basis.” Expropriation Bill, B23-2020 available at https://www.parliament.gov.za/project-event-details/1670 and B18-2021: “To amend the Constitution of the Republic of South Africa, 1996, so as to provide that where land and any improvements thereon are expropriated for the purposes of land reform, the amount of compensation payable may be nil” available at https://www.parliament.gov.za/project-event-details/285.
Shaw, They Stole Our Land, p 76.Widdowson, F. (2019). Separate but Unequal: How Parallelist Ideology Conceals Indigenous Dependency. University of Ottawa Press, p 10.
See for example discussions linking reparations to properties now owned by the National Trust: Cream teas at dawn: Hinsliff, G. (2021, October 16). Inside the War for the National Trust. The Guardian. https://www.theguardian.com/uk-news/2021/oct/16/cream-teas-at-dawn-inside-the-war-for-the-national-trust.
