Wednesday, February 20, 2008

Toward restoration for the dispossessed

Thanks to IntLawGrrls for this giving me this opportunity to appear as a guest-blogger.
In this post I present what constitutes the 1st of a planned trilogy of articles on issues related to property dispossession. Entitled From Reparation to Restoration: Moving beyond Restoring Property Rights to Restoring Political and Economic Visibility, and just published in the Southern Methodist University Law Review, this article explores 2 important questions facing countries that decide to give communities and individuals compensation for property stolen in the past. The questions are:
► Who at minimum should be restored?
► How should the restorative process transpire?
As to the 1st question, I argue that, at minimum, the state has a moral obligation to compensate people who have been subjected to severe dehumanization as a result of an uncompensated property confiscation. My claim is that this confiscation of property results in property-induced invisibility; that is, people are removed from the social contract and made invisible. Instances of such property-induced invisibility can be seen throughout history among native peoples whose land was stolen through conquest. Also, Tutsi and moderate Hutu subjected to property confiscation during the Rwandan genocide. The dispossession of nonwhites during apartheid governments' incessant campaign of dehumanization would be yet another modern-day examples of property-induced invisibility.
As to the 2d question, I argue that societies must redirect their focus from the limited concept of reparations to restoration. When the concept of reparations is invoked, the goal is to secure compensation for past wrongs; however, the state does not allow the dispossessed to choose how they are compensated. Restoration, in contrast, is a larger project -- a project of restoring a dispossessed group or individual’s relationship to society, of including them in the social contract and thereby reversing the condition and effects of their property-induced invisibility. Restoration is accomplished through a bottom-up process that provides asset-based choices; that is, choices that both allow people to decide how they are to be made whole and give people viable options from which to make that decision. The options may vary according to what is possible; for example:
► return of property
► alternative property
► monetary compensation
► free higher education for 2 generations
► priority in an already established housing process
► highly subsidized access to credit
The article then moves to an evaluation of South Africa’s Land Restitution Program, as a means of testing the theoretical concepts of property-induced invisibility and restoration previously set forth. More specifically, I investigate whether, as a baseline, South Africans who were subjected to property-induced invisibility are benefiting from the Land Restitution Program. In addition, I offer recommendations on how the government can transform the Land Restitution Program from a reparations program to a restoration program.

(photo courtesy of South Africa's Commissions on Restitution of Land Rights)


Marjorie Florestal said...


Thanks for your thought provoking comments. I spent a few months in South Africa now four years ago, and while I mostly focused on trade issues I was very much struck at the level of work the society would have to do to fully restore, reconcile and advance. Hopefully, it will succeed because South Africa is a model and leader for many other African countries. As I look at your comments, I wonder if the restoration model you propose looks different if you are talking about a place like SA or Zimbabwe where the formerly dispossessed are now the political and (sometimes) economic leaders? At a minimum, it would be easier to achieve buy-in for some kind of large scale restoration project (although Zimbabwe is a cautionary tale). In the United States, even an apology for slavery for a long time was seen as politically unfeasible. The struggle for reparations has never gained much political momentum--let alone the more comprehensive approach you suggest. Is restoration only possible if the formerly dispossesed (a) is in the majority and/or (b) achieves real political power?

Jaya Ramji-Nogales said...

Thanks for a great blog, Bernadette, and welcome to IntLawGrrls!