The Thoery of Due Reparations; R. Foley, Jr.

T here is a fashion in foolishness. Silly notions come and go; some are reborn a generationor more apart;othersrevivein an altered but similarlyobnoxiousform, parading as somethingnew and wonderful,in realitysome thingancientand wicked. One such goofy and dangerousconceptwhich hasgainedincreasingcurrencyin thisdecadeis the allegationthat the state oftodayoughtto order its creative citizens to grant favors and transfer wealthto lessproductivepersonswhosuffered(or whose ancestors suffered) a supposed earlier injuryat the handsof other people.Not unlikethe reparationsdemandedof the Kaiserand his allies followingWorldWarI, thisobnoxioussocial/polit ical theory, currently augmented with equally thoughtlesslegal justificationand seasoned with venal economicvoodoo,threatens to becomethe order of the day. It appearsin many guises,and it wearsmanymasks,but at the essencethe identical notionand proposednostrumendures.

Considersomeofthecostumeswornbythisthe ory of reparationsdue for past bad acts. The off spring of a late, talented black baseball player whoseplayingdays terminatedlong prior to 1946 not onlylamentsher father'sinabilityto show his waresin themajorleaguesbutalsoseeksmonetary recompensefor the ancestor'sunfairdeprivation. An outdoors enthusiastnot only mournsthe loss of pristinepurityin the lakesand woodsadjacent to the cityof his residencebut also demandssanc tions against corporate "polluters" for long-past Mr. Foley, a partner in Schwabe, Williamson and Wyatt, practices law in Portland, Oregon. acts perfectlylegal and reasonableat the time of commission. Nisei interned in relocation com pounds during World War II receive damage awards funded by taxpayers unconceivedat the time of hostilities. Many of those individualswho believerepara tionsare due to them or to otherspresenta super ficiallyappealingcase.Diversbaseballfans would haveenjoyedtheopportunityto seestarsin the old Negroleaguessuchas SatchelPaige,JoshGibson, and Cool Papa Bell matched againstBabe Ruth, Ty Cobb,and LeftyGrove.Myriadsportsmenand campers feel pangs of grief when they happen upon a changedcountrysidepejorativelylabeled "despoiled." Numberless men and women of goodwillwonderwhatpossessedFranklinDelano Roosevelt and his henchmen to treat Japanese Americansso cavalierly.(Incidentally,these same folks often regret Abraham Lincoln'ssuspension of the writ of habeascorpusand the concomitant lack of courageon the part of the Reconstruction SupremeCourtwhencalleduponto dealwithsuch a salient subject in Ex Parte Milligan, 71 US [4 Wall]2, 18 Led 281 [1866].) Yet, as is so oftenthe case,r~moval of the mask ofrageand righteousnessrevealsthe consummate evil inherentin the veryact of compellingrepara tionsin these or likeinstances.

CommonLaw First,the commonlaw-the mostjustsystemof jurisprudenceevercraftedby a falliblemankind requires fault and causality before granting an 210 THE FREEMAN • JUNE 1990 award of damages. Further, fault depends upon foreseeability, knowledge, and reasonable ability to avoid harm existent at the time of the act or omission, not upon some subsequently discovered cultural or scientifictruth, supposition, or supersti tion. The actor must adhere only to the mythical standard of the "reasonable and prudent man, under the same or similar circumstances." In other words, in order to employ the law to grant P a money judgment against D, P must prove that D acted in a faulty (careless or intentionally wicked) fashion, and that such conduct caused P harm in the amount sought in his complaint. And, the fault component of D's actions is measured against the standard of the reasonable man at that time: D need not possess the foresight to know what will be discovered next year, next decade, or next century,nor must he fathom decrees of future courts and legislators.

Thus, one might suggest that George Washing ton's doctor committed malpractice in bleeding his patient during the first President's fatal bout with pneumonia in the late 18th century; it would take a great deal of temerity to sculpture a legal system which would allow George Washington's heirs or representatives to sue the physician's heirs or rep resentatives in the 20th century and to recover damages for wrongful death based upon the insight gained in the 19th century that bleeding ill patients tends to be counterproductive to recovery and good health. It is equally unseemly to assess damages against Corporation X in the 1980s for cutting timber or discharging waste a century before-particularly where the earlier workmen and officers followed common practice and broke no law. The theory of due reparations simply does not accord with the tried-and-true common law tradition. GrantingMenTheirDue Second, no acceptable theory of justice supports the claim of due reparations. Justice means to grant men their due and no more. It requires unbridled respect for free choice. Given the funda mental premises of justice, the government ought not be in the business of righting wrongs and cor recting slights outside of the bounds of the tradi tional common law.

Indeed, given the changing rules, mores, and knowledge of mankind, and our inherent finity,no entity or individual could come close to compre hending and rectifying any, let alone all, past mis deeds. Face it: few of us can understand past events and unravel their causes; it is doubtful very many could agree upon the propriety or impropri ety of most past acts even if it were possible to comprehend all essential factors in the causal chain. And none of us are capable of discerning, securing, and distributing a perfect justice or resti tution in these or like situations. Finally, even should a man or woman appear upon the scene, possessed of the ability and willingness to under take this monumental task, it is an absolute cer tainty that he or she could never achieve political selection or election to exercise that talent. Thus, those who employ the theory of due reparations not only evade the common law tradition but also prescribe and seek to perform an act which no mere mortal could possibly achieve.

Furthermore, the calumny and calamity of this misguided nonsense doesn't end here. One cannot achievejustice by the commissionof injustice.One does not better the world by stealing from A and transferring those stolen goods to B (less a han dling charge, of course), even with the most laud able of motives. If A carelessly struck B with his automobile, or punched him in the nose, or broke a contractual promise to B, and thereby caused B harm, the common law permits a judge or jury to render a judgment against A and in favor of B for the amount of the loss thus caused, but no more. But neither law nor justice should enable B to take money from a faultless A to compensate for some real or imagined past slight or harm caused by someone else. To do so penalizes A in a most vicious manner; it creates a second injustice in a vain attempt to rectify a presumed first injustice; and, it performs this nefarious activityunder a sub terfuge of high-sounding words and inspired caus es designed to obscure the true nature of the deed.

I don't control organized baseball; how can I be charged for the misdeeds of men long dead? I couldn't vote in 1940 or in 1944, and had I pos sessed the franchise I most assuredly would not have cast a ballot for FDR (or probably for his Republican adversary); how can I be blamed and punished for placing Japanese-Americans in relo cation camps? I wasn't around in 1850or 1900,so I cut no trees and poured no waste into a pond, nor did I use any good or service supposedly resulting THE THEORY OF DUE REPARATIONS 211 ~from those activities; how can any person of sound morals assess me for these ancient acts? The Nisei internment offers an illustration of the deeper wrong occasioned by the squalid theory of due reparations. The government instituted and carried out the relocation program; no private per son or entity not linked to the state compelled indi viduals to leave their homes and property.! It is plainly unjust to shunt responsibility for 1940's individual mistakes unto the shoulders of 1990's individuals. It is even less commendable to mulct 1990's individuals for earlier state malevolence, misdeeds which most likely could not have been stemmed by dissenters during World War II given the fact of an oligopoly government directed by Caesars not accountable to any reasonable restraint or common moral code. It would make as much sense if in 1940 Dictator Dan, despite the adamant protests of John, executed Abel for refus ing to pledge fealty, and Dictator Dan Junior in 1980 executed John after deciding that Dictator Dan had wronged Abel!

The Dutyof Law The unpleasant treatment of racial, religious, or cultural minorities certainly deserves condemn a tion, not applause, just as all destructive and igno ble acts should be censured by men and women of goodwill. But, one ought to differentiate between acts and omissions deserving of moral opprobrium and those subject to rectification by the law. The law should punish fraudulent and violent conduct; but no law can aptly prevent discourteous, unkind, and mean-spirited slights.Men and women are not perfect; they behave badly and boorishly, and they generally cannot even agree upon the content of proper behavior. The changing countenance of the law and of the standard code of behavior signify that fact. Even the common law cannot effectively redress grievances deriving from fraudulent or aggressive activities when all essential partici pants-particularly the aggressors-are dead and gone. A fortiori,one ought not employ normative rules and orders in an attempt to redress mere 212 THE FREEMAN. JUNE 1990 shabby conduct, no matter how disgusting, partic ularly in the absence of all salient actors.

The credo of due reparations is both impermis sible and impossible. Any taking from a faultless individual for any purpose other than deterrence of aggression and maintenance of a system of com mon justice necessarily involves an impermissible transfer of wealth and liberty. Any such transfer violates all principles of justice and good morals. Those who order the transfers, and those who accept their benefits, necessarily accept the axiom of "might makes right" and subscribe to the con cept that their ideas and choices ought to count for more than the selections of other people-even if those other people created value which must be commandeered from them. 2 Furthermore, the theory of due reparations runs afoul of the positive law, specifically the jural principles undergirding statutes of limitation. An orderly society requires civil peace, harmony, and rectitude, and the com mon law has long recognized that justice and order demand that there be an end (no matter how imperfect) to claims and litigation. Also, it is patently unfair to compel a defendant to answer for an alleged wrong long after the fact, when his witnesses have died or strayed, and his defensive evidence has melted along with human memory and ordinary record-keeping.

For these reasons, the common law developed the doctrines of law of the case, res judicataand staredecisis,and its equity counterpart established rules of laches, all apart from the legislatively pre scribed time limits embodied in statutes of limita tion. Nonetheless, the theorists of due reparation push onward, unmindful that their late blooming claims upset the civilorder and place the putative defendant at a great evidentiary disadvantage. Indeed, most proponents seem oblivious to the incongruity between opening all manner of old wounds whilst the ordinary legal proceeding is time-barred for late filing. Some suggest that special harms require special treatment. Unfortunately, such exceptions tend to swallow the rule, obliterating all of the age-old rationale for civil order and fair treatment of defendants with it. The very concept and label of "special harm" betrays the subjective value judg ment inherent in the proponent: we all have our pet peeves and projects for which we wish "spe cial" treatment. Yet,good sense and sound experi ence demonstrate that law and justice must be dis pensed in an evenhanded fashion, "on a fair field with no favor." It is only when such evenhanded ness prevails that liberty reigns and its fruits also prevail and redound to the benefit of each of us.

Given these defects and deficiencies in the the ory, what do the proponents of reparation seek to accomplish? Nothing less than a reorganization of society in their own image and a sating of their sub jective desires at the expense of others whose creeds, ideals, and wants the proponents think should not count in this brave new world. In sum, the theory of due reparations partakes of the same malady which afflicts all such social action transfers: someone conjures up a "need," seizes political office, and employs the state pow ersof taxation, police, and eminent domain to force upon the unwilling populace the conjurer's notions of "need" and "solution." Those who pay the freight have no say in the matter, and the politi cian reaps the benefits provided by the carrying charges necessarily attached to the proposed solu tion. D 1. The criminal-duty-imposing laws against assault, theft, extor tion, and other misconduct ought to be sufficient to deter and punish private wrongdoers. And, if the state refuses to enforce criminal sanctions against such malefactors, the public officialsshould be sub ject to appropriate civil and criminal liability.

2. One certainly could advance additional arguments against the flawed theory of due reparations. For example, transfer payments which lack a sound legal and moral basis constitute an affront to sev eral economic principles. As utilitarians and other pragmatists have long recognized, transfer payments inhibit the productive process and the creation of wealth by reducing the incentives of both trans feror and transferee. The "end game," as Frederic Bastiat revealed, is the circle of pickpockets, each trying to steal from his neighbor. In addition, while beyond the scope of this paper, one could make the case that a severe psychological societal malaise flows from such beggar-my-neighbor policies. Hence, while I focus here upon com mon law and common justice, others could make the same point by virtue of alternative reasoning.