"Reparations" as a dirty word: The norm against slavery reparations

University of Memphis Law Review, The, Winter 2003 by Harris, Lee A

I. INTRODUCTION

In his path-breaking tome, Order without Law, Robert Ellickson sets out for the "field," literally scouring the American West for the perfect spot to observe the gritty, unvarnished stuff of life.1 Settling on Shasta County, California, a rural community of cattle ranchers and farmers, Ellickson discovers that county residents consistently follow a set of norms; norms that are materially different from any legal entitlements.2 With that, Ellickson makes a bold, yet outwardly uncomplicated, observation about the law: It doesn't matter.3 As Ellickson finds in Shasta County, social norms, not law, propel human behavior.4 If his proof stands, social norms explain behavior in a wide range of areas, from family law5 to sumo wrestling.6

Consider the public debate about whether slavery reparations7 should be paid to African Americans.8 Do social scientists have better answers as to why the public overwhelmingly opposes slavery reparations other than those that any jurist could provide?9 This Article argues that an analysis of slavery reparations that wrestles with the normative questions of slavery reparations is more convincing than an analysis that merely attempts to apply rote legal rules.10

This Article has two aims. First, I argue there is a norm11 against behavior that evinces support for slavery reparations, or, as I refer to it, an anti-reparations norm.12 Drawing on several sources, I attempt to demonstrate that while supporting slavery reparations is legally permissible, it is socially unthinkable.13 Second, I attempt to demonstrate that, as a consequence, public debate on slavery reparations has been largely constrained.

In Part II, I explain why there is a norm against behavior that evinces support for slavery reparations. In part, a norm against slavery reparations flows, rather predictably, from a political culture of individualism.14 Second, particular individuals, so-called "norm entrepreneurs,"15 may animate a norm against slavery reparations. Third, the Supreme Court, a medium of socially acceptable conduct, helps substantiate a norm against slavery reparations.

Next, Part III discusses public debate over slavery reparations in light of the anti-reparations norm. There are asserted fallouts from the anti-reparations norm in the contexts of politics, academics, and interpersonal relationships.

In Part IV, I review my arguments and their weakest links. In turn, I counter these with the argument that all norms are good norms and that all norms feature some ostensible enforcement mechanism. I then clarify the scope of my arguments. This Article concludes by referring to other movements made to secure reparations in the United States, and I extend my argument to the case of Japanese Americans who were recently awarded cash reparations for internment during World War II.16

II. ORIGINS OF THE ANTI-REPARATIONS NORM

In this part of the Article, I argue that there is a norm against evincing support for slavery reparations17 while attempting to elucidate the origins of the anti-reparations norm. In so doing, I identify three sources of social norms-political culture, individuals, and the law-and explain how each conflicts with the idea of slavery reparations.

A. Culture

Sociologists have long traced social behavior to political culture.18 One19 of the main elements of the liberal-democratic culture in the United States is individualism.20 Briefly, the individualist believes that each person is an independent being who should be judged on her own score of talents and shortcomings.21 This Subpart submits the argument that the idea of slavery reparations conflicts with several premises of individualism.22

1. Self-reliance

First, individualists emphasize self-reliance.23 Self-reliance is the notion that individuals should take care of their own problems.24 Notions of self-reliance also suggest that individuals should work hard pursuing their own economic and personal interests.25 This point is made by Alexis de Tocqueville, one of the most famous travelers to this country and most often cited commentators on American values.26 As he explains in Of Individualism in Democratic Countries:

[W]hen the duties of each individual to the race are much more clear, devoted service to any one man becomes more rare . . . . Thus, not only does democracy make every man forget his ancestors, but it hides his descendants and separates his contemporaries from him; it throws him back forever upon himself alone, and threatens in the end to confine him entirely within the solitude of his own heart.27

Perhaps the earliest manifestations of self-reliance attributed to American writers can be traced to Ralph Waldo Emerson and his essay by the same name,28 and to transcendentalist Henry David Thoreau, who abandoned society in one of the most flagrant displays of self-reliance.29 Today, echoes of the self-reliance mantra are found in the writings of political scientist Robert Putnam, who has argued that Americans are increasingly less inclined to participate in civic associations or commingle with one another.30 This belief in self-reliance differs from the cultural solidarity found in other countries.31