The Expressive Burden of Reparations: Putting Meaning into Money, Words, and Things

Abstract

I propose a novel account of the essentially expressive nature of reparations. My account is descriptive of new practices of reparations that have emerged in the past half-century, and it provides normative guidance on conditions of success for reparative attempts. My account attributes to reparative attempts a dual expressive function: a communicative function that requires the gesture to carry a vindicatory message to victims; and an exemplifying function that requires the gesture to model the right relationship that was absent or violated in the wrongdoing to which reparations respond. This account is able to explain the breadth and variety of measures now recognized as reparations; how reparative attempts can fail in two distinct ways; and why material compensation is never sufficient and not always necessary to reparations.

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Making reparations is one practice of doing justice in response to wrongs. Reparations, in the sense I will examine, consist in acts, on the part of those responsible for a wrong or its repair, of intentionally giving appropriate goods to victims of that wrong in order to acknowledge the wrong, their responsibility for the wrong or its repair, and their intent to do justice to the victim precisely for the wrong.¹ What is given to or done for the victim of wrong, however appropriate in light of the harm caused by the wrong, is not in itself what constitutes reparations, for it must be given or done by those responsible for wrong or its repair, and given in a certain spirit and with a certain intent. Others may give aid, comfort, support, or compensation, and in some instances may do so in the spirit that “it is only right” that someone respond in this way to those who have suffered wrongful harms or losses; but if those who do so are not responsible parties who intend to redress wrongs that it is their obligation to redress, this is indemnification or good works but it is not reparations.² Nor does it suffice in itself that the persons or entities who give something to or do something for victims of wrongful harms are responsible in the relevant ways, if they do not intend to redress wrongs and to express that intention by what they give or do.³ A government who by its policies has contributed to a group of citizens becoming impoverished and marginalized might decide at some point to ameliorate the poverty and exclusion of this historically unfortunate group. If the newly offered goods or opportunities are not tendered with the intention to accept responsibility for wrong and offer just redress, however, then the action might be a just redistributive exercise and might be intended to fulfill requirements of distributive justice, but it is not an exercise of reparative justice and the benefits newly offered are not reparations.⁴

My discussion is keyed to the practice of reparations that has taken shape in the past half-century. Reparations were once a transaction between nations that required losers to pay tribute to winners for their losses – as in the familiar case of reparations exacted from Germany after the World War I. The landscape of reparations shifted rapidly after World War II with the upsurge in human rights standards, changes in international humanitarian law, and in the unprecedented program of massive reparations by the Federal Republic of Germany to individual victims of the Holocaust. It was further transformed by the decisions of international judicial bodies.⁵ In the current state of things, reparations are often programs implemented by states in fulfillment of their internationally recognized obligations to address individual victims of serious violations of human rights or international humanitarian law, often in large numbers, in the aftermath of specific patterns of abuse, repressive and violent authoritarian governance, or armed conflict. The obligation of repair can fall upon successor governments that were neither the source of the abuse nor a culpable bystander to it, but who inherit undischarged duties to repair the grave wrongs of a former regime. More than a legal device, this understanding addresses the need, in the aftermath of mass violence, to provide assurance that the dignity, civic standing, and political equality of those victimized or disregarded is recognized in the post-conflict political order.⁶

The basic principle of reparations, affirmed by the UN General Assembly in 2006 after a decade of study, is that victims of gross violations of international human rights law or serious violations of international humanitarian law should be provided with “full and effective reparation,” which takes forms that include restitution; material compensation; rehabilitation through legal, medical, and social services; guarantees of non-repetition through institutional reform; and “satisfaction” (a category of diverse measures that include truth-telling, exhuming human remains from atrocities, public apology, commemoration, and educational activities, among others).⁷ The increasingly clear definition of forms and grounds of reparations in international understandings can also put pressure on societies, state or local governments, and institutions, such as corporations, churches, universities, or other collectivities to reckon with legacies of profound injustice in their pasts. It is this moving front of interdependent principle and practice in reparations that my account addresses.

Until recently, the normative literature on reparative justice and reparations has been slight, and has been dominated by a juridical or tort paradigm of restitution or compensation for unjust loss or injury that seeks to restore the status quo ante in order to “set things right.” On this view, reparative (or corrective, or compensatory) justice is done when victims are rescued from losing what they should not have lost, by either its return or equivalent replacement.⁸ As newer political practices of reparations have developed in recent decades, this legalistic understanding of reparation as proportionate compensation has come under criticism as inapt or impracticable for large-scale programs of reparations in the political context of reckoning with heinous wrongs of conflict and repression or with historical injustices of dispossession, slavery, enforced inequality, and cultural destruction. Newer moral and political conceptions of reparations that focus on affirming human dignity and equal citizenship, and creating the basis for respectful, trustworthy, and mutually accountable relationships, have been argued as necessary, if not superior, alternatives to the juridical view.⁹ It is not my intention to enter that debate. Instead, I begin on the side of those who argue that reparative justice is about redress for injustice and wrongful harms that aims at the reordering of individuals’ standing, their relationships, and their communities, and I will give a particular account of what this reordering consists in. This in no way eliminates or diminishes the role of restitution or monetary compensation when these measures are particularly meaningful and effective in providing redress to victims and in expressing the intention of responsible parties to do reparative justice. Rather, I seek to put these transactions into a broader context, where restitution and compensation are never, in themselves, sufficient to repair grave harms, and where it is the meaning of the interaction, and not only or by itself what is tendered in it, that puts the repair in reparations.

By exploring the expressive functions of reparations, and so identifying the expressive burdens that gestures and programs of reparations must meet, whether they entail material transfers or other kinds of acts, we can better understand the human interactions that justice requires when grave wrongs have been done. On my account, gestures of reparation involve a double symbolism: they communicate and exemplify. Their communicative function is to deliver to victims, wrongdoers, and communities a vindicatory message that acknowledges the reality, the wrong, the responsible parties, and their intent to do justice. The communicative function may be carried explicitly by apology, but also or alternately by the expressive suitability of the vehicle of reparations – what is given. The exemplifying function of an act of reparations is to exhibit the right relationship between the wronged party and those responsible parties who make reparation. The reparative act must exemplify a kind of relationship between victim and responsible parties that was rejected or lacking in the circumstances in which the wrong was done.

My account of these dual expressive functions is normative: it aims to explain a particular kind of practice, and in doing so to identify conditions for the success of that practice. I am saying that reparations gestures – for instance compensatory payments of money for an unjust loss or suffering – may rightly fail to be seen or accepted as reparations if they fail to include or to achieve the necessary expressive dimensions, or may be correctly judged as more or less successful reparative efforts to the extent that they do achieve them. At the same time, my account is meant to stay close descriptively to what has actually been found to happen in attempts, successful and unsuccessful, at making amends for grave wrongs. Finally, it is meant as to underscore how limited and fragile are the effects that even sincerely intended and well-considered reparations measures and programs can have.

1 What Are Reparations Intended to Repair?

I begin my account, necessarily, at the end: what is it that reparations are intended to repair? What is the goal of “reparation” at which specific reparations measures aim?¹⁰ In psycho-social perspectives, reparations seek relief of the suffering, distress, anger and sense of violation experienced by victims.¹¹ Legal perspectives focus on restoring the status quo ante or making the victim whole, drawing on well-­established principles of corrective or compensatory justice, which may be of limited guidance in massive reparations programs. Political and moral conceptions of reparations stress the kinds of standing and recognition that reparations must affirm for victims within their communities, and the forms of social and political relationship that they promise (and repudiate) in offering reparations.¹²

Drawing on my work on moral repair, I offer a particular way of understanding the regulative ideal of reparations that foregrounds moral aims, while recognizing the importance of psychological and political conditions to expressing and achieving these moral aims. On my view, there are three central conditions of functioning moral relations that are threatened or damaged by serious wrongs. One is the confidence that there are mutually recognized and defensible shared standards that define reciprocal normative expectations of mutual respect between parties to these understandings. A second is trust that parties may rely on each other to be responsive to these standards, either by conforming to them, or by acknowledging that failure to conform creates liabilities to accountability, sanction, or repair. The trust in question may be general or it might involve specific expectations of relationships with distinct histories. Third, and less commonly recognized, parties must sustain hopefulness about the authority and mutual acceptance of moral standards and about the trustworthiness of individuals to be responsive to them. I suggest that reparation aims at the creation or restoration of these conditions of morally adequate relationship – confidence, trust, and hope – on the social and civic level, thus repairing moral relations for common and public life.¹³

Discussions of reparations in political cases (and responses to serious violence and injustice generally) often emphasize the affirmation of the victims’ dignity and equality and the creation or reestablishment of common standards of respect among victims and perpetrators and within their communities. The creation or restoration of trust between victims and their communities that shared standards apply to and protect them are also central themes of political accounts.¹⁴ What is most distinctive in my own account is the claim that hopefulness is a fundamental condition of moral relations, more fundamental than trust. The trust we repose in each other to act on defensible shared standards is often disappointed and, in cases of gross injustice and violence, trust will be severely shaken or destroyed at least for victims of grave wrongs, and perhaps for others. The readiness to rely on each other’s responsiveness to shared standards is one of the casualties of serious wrongs for individuals or for whole communities. Hopefulness is more fundamental than trust because it can be essential to restoring trust.

Hope is an attitude constituted by a belief in the possibility of some desired situation, by the positive value placed on that situation, and, most characteristically, by an effective motivation, displayed in feeling, imagination, and behavior, to seek, invite, or attempt to bring about the desired yet uncertain reality. The hopefulness at the root of moral relations involves a motivating belief that there is a real possibility, even if slight, that defensible standards are shared and that individuals are disposed to respond to what the standards require. Trust involves actual reliance on others; trust can be maintained, or at extremity to be entertained again, only if there is room for hopefulness, if not about those who have committed grave wrongs, then at least about the general reliability of others of our fellow moral actors. If trust is the stream in which we swim in shared lives organized largely by reliance on the acceptance of common norms, hope is the spring that feeds that stream.

The centrality of hope has important consequences for understanding the repair of moral relations and, more specifically, reparations measures, for one-off displays of acknowledgment, responsibility, and intent to do justice by those responsible for wrongs or their repair would not seem, in the wake of terrible wrongs, to give reasonable grounds for resuming confidence and trust. What a gesture or an orchestrated process of negotiating and making reparations might do instead is to make available, and to make more or less vivid and convincing, the possibility that those making reparations really do intend to make themselves worthy of trust. This is the possibility that: (1) they understand the nature of the wrong, loss, suffering, resentment, and alienation they seek to repair; (2) they realize the flawed or malignant kind of relationship, and the violated or perverse standards, that they have visited on the victims or that the victims have suffered; and (3) they are capable of undertaking and willing to undertake the establishment or guarantee to the victims of the sort of standing and relationship that would have prevented such wrongdoing.

To expect an act or process of reparations in and of itself to reinstate or create confidence in shared standards that affirm the dignity of each and respect for all, and trust in others’ responsiveness to them, seems wishful. It seems more realistic to view the success of reparations as hinging on the ability of the gesture to animate hope, to kindle a concrete sense of possibility that can motivate actions, feelings, and engagements with others that in turn could permit the regeneration of morally adequate relationships. It is the regeneration of relationships of the right kind, under tests and over time, that in turn might make possible the substantial confidence and trust that adequate moral relations require and upon which stable civic and political relations of respect and equality depend.

2 One Expressive Function of Reparations: The Vindicatory Message

Many discussions of reparations distinguish material reparations (money compensation, restitution of property, or goods or services with monetary value) from symbolic reparations. “Symbolic” reparations are those that do not involve a transfer of property or something of monetary value; they can be as diverse as the publication of the truth about abuses, public apologies, memorials, or educational projects. This well-established and useful distinction among kinds of reparations should not obscure, however, that all reparations have an essentially symbolic – that is, expressive or communicative – function. Even when monetary compensation or other material goods are offered as reparations, it is their role in carrying the relevant communication that distinguishes reparations from indemnification, payment of a settlement, or compensation on other than reparative grounds.¹⁵ Nor should the fact that nonmonetary or nonmaterial reparations are called “symbolic” suggest that what is offered is somehow only a surrogate or stand-in for what would be “real” reparations, money or other materially valuable objects. Studies of victims of political violence in many contexts reveal that measures called symbolic reparations are often more highly valued than monetary ones, and that monetary payments are unacceptable or take on problematic meanings in the absence of other gestures that convey acknowledgment and respect.¹⁶ Whether material or symbolic, all reparations are seen by victims as communicative gestures, and these communications produce real effects of psychological, moral, social, and political kinds. If the reparative communication misfires or is poorly executed, very real effects often follow: the victims may be insulted, outraged, or bitterly disappointed, and may react with protest, withdrawal, or litigation. I don’t seek to trouble these entrenched distinctions; rather, I refer to the “expressive” function of reparations to avoid confusion, arguing that the expressive function is essential to all reparations gestures, whether material or symbolic.

That reparations gestures or programs have a crucial expressive dimension is widely recognized, and is recognized as marking the difference between reparations proper, on the one hand, and simple indemnification or compensation, on the other. Yet little has been said about what it is that reparations express and how they do so. A common idea is that reparations gestures acknowledge a wrong (and thus the ­reality of an event or course of events as well as a norm of conduct that identifies the wrongfulness) and accept responsibility for the wrong that entails an obligation to redress it.¹⁷ Hence my formula for the vindicatory message that reparations must carry: it communicates the reality and wrongfulness of the event in question, as well as a responsibility for the wrong or its repair and an obligation to make amends as a matter of justice. Whatever is given as or in a gesture of reparations needs to come with or to carry this message. If it does not, there can be unclarity about the wrongdoers’ or responsible parties’ understanding of, and attitude toward, past wrongs and their duties of justice in respect of them, or the act may fail to show proper respect or real care for those to whom reparations are owed. Whatever is given as or in a gesture of reparations needs to come with or to carry this message. How is this message sent?

Obviously, the message can be sent explicitly by means of a careful and complete apology: one that identifies the offending event; characterizes its wrongfulness clearly (and ideally identifies the specific values or norms violated and the actual harmful impact on victims); takes responsibility for the wrong or its repair; and repudiates the behavior involved in the wrong.¹⁸ In personal relations, apologies may often be the whole of a reparative gesture and in many cases may suffice as adequate amends. In some historical and political cases involving groups of victims, public apology may also be specially meaningful for its establishment of an historical record (often in the face of persistent denial), and for its public acknowledgment of the injustice, suffering, and loss born by victims. For these reasons apology may be so crucial that the offer of other goods in the absence of the right kind of apology is unacceptable as reparations; but it is equally true that apology, in both personal and political cases, can appear as cheap talk or idle ritual without the tender of something else as amends. Finally, it is possible that tendering the right goods in the right way might by itself send the vindicatory message that an apology makes explicit in words.

There is a need, then, for a fuller and more general understanding of the features that an expressively successful vehicle of reparations – the good actually given – will have. Despite widespread recognition of the expressive nature of reparations gestures, there is not much guidance on the general dimensions that determine expressive adequacy. The principle of proportionality in compensation that figures in the juridical conception of corrective justice, is but one guideline, and a meager one in face of the varieties of reparations now recognized. I offer the following ­general scheme as a start on explaining the features that make a particular vehicle of reparations adequate to the expressive task, whether it be money, services, special opportunities, access to relevant information, apology, concerted truth-telling, educational projects, or commemorative activities.

I suggest four dimensions along which reparations vehicles can be assessed for adequacy to the expressive burden. Reparations vehicles must be interactive, useful, fitting, and effective.

First, a reparations vehicle must be suitable to be the focus or embodiment of an interaction between responsible parties and victims. Responsible parties include the actual perpetrators of wrong, but also parties otherwise responsible, for example, by complicity, culpable inaction, or a legacy of undischarged reparative obligations. Communities also have their roles to play in affirming the authority of norms and the victims’ deservingness of repair, either as participants in or as guarantors of repair. Victims are construed for the purposes of this interaction as those who have suffered intentional harms directed at them. In keeping with current legal and political understandings, however, reparations may be offered to others unavoidably and severely affected by wrongs, such as families, close relations, and dependents of direct victims. This interactive aspect is crucial, because it represents acknowledgment of relationship and the intent to repair it. Whatever the nature of the relationship, if any, prior to the wrong, in all cases of wrongs that seriously harm there is a charged and negative relationship created by the wrong that is one of the costs ­suffered by victims. A reparations vehicle must be suitable to acknowledging the existence of a relationship as the context of reparation and the achievement of ­a morally adequate relationship of reciprocity and respect as its aim.

Second, a reparations vehicle must be useful for victims, that is, it must be ­suitable to their own use in coming to terms with the loss and harm suffered due to the wrong. Reparations are called for when wrongs cause serious harms. Nothing given by responsible parties can be adequate without offering victims something they can do to address the harms and losses, especially in ways that they themselves need and choose to do so. This is not only a matter of respect for their loss, but of their right to exercise agency and control in the aftermath of being unjustly, even violently, subjected to the will of others. A reparations vehicle is useful when victims can use it to replace what was lost; as a means to pursue interests otherwise thwarted by the wrong and its harms; as a means to pursue interests that replace and in some degree compensate for those interests that can no longer be pursued due to the wrong and its harms; or to achieve some degree of satisfaction or relief for the specific pain, suffering, and grief caused by the wrong and its harms.

The limiting case is restitution, where the very thing lost or destroyed is returned or restored in a way that affirms rightful ownership and the wrong of interference. More commonly, reparations offer something the victim of wrong can use to deal with the loss and damage the wrong has caused, and since these losses and harms are various, so may reparative measures vary. In many modern societies money is the all-purpose currency of this interaction, but a memorial that contains individualized references to victims can also be intensely valued as a concrete site or receptacle to focus grief and to point to as durable public acknowledgment of the responsibility of others.¹⁹ Usefulness reminds us that collective measures of reparation must be assessed for their individual impact on relief of individual isolation and suffering and on their contribution to individuals’ agency and well-being. Usefulness in a reparative vehicle is crucial to represent the acknowledgment of the individual victim’s experience of suffering and loss and respect for their agency.

Third, a reparations vehicle must also be fitting. The vehicle needs to be related to the wrong and harm that was endured in such ways as to seem fitting and deserved, especially to the victim but also to others in their community, as a response to that particular sort of wrong and loss, to the specific damage to opportunities and well-being it causes, and to the kind of pain, suffering, and grief inflicted. Here the common requirement of “proportionality” of compensation to injury appears as one aspect of what is in fact a more general feature. Except in cases of restitution of the lost object, or where what is compensated for has a determinate monetary value that it is possible to pay, even in monetary compensation “fit” is often determined, as in the case of legal punishment, relative to a standard or scale that is defined in some conventional way or that involves symbolic representations or equivalences of value. Mass reparations for gross violence can also mix material and symbolic equivalences, as when victims of illegal detention receive pensions equivalent to some rank of civil servant. They can be fitted to remedy specific physical, psychological, or legal disabilities, as when victims receive special access to rehabilitative or legal services. They can respond to fear of reoccurence with public programs of education and institutional reform, and to grief with individualized and concrete forms of memorialization. Fit can also be constructed narratively, in terms of a fitting continuation or representation of the story of grave wrongs and victims’ vindication, as when a torture center is turned into a museum to educate about the abuses. For families of those disappeared, nothing short of retrieving the remains of loved ones may seem even minimally fitting. Martha Minow notes rightly that reparations “cross lexicons of value” attempting to achieve one or more kinds of fit.²⁰ Fit has an especially strong intuitive relation to justice: as punishment is to be proportionate to crime, compensation proportionate to loss, and reward proportionate to achievement, so to does fittingness of a reparations vehicle represent an appreciation of the nature, meaning, and magnitude of what is “due” as a matter of justice.

Fourth, the reparations vehicle chosen must be effective. The vehicle must be carefully considered, and ideally it is negotiated with victims, so that victims of wrong are likely to be able to access and use it. Usefulness and fit carry messages that choices are given in response to lost freedoms, powers to act given in response to having been powerless, acknowledgment given as a bulwark against denial and erasure, and opportunities to express or contain grief and anger given in recognition of the acute suffering and burden with which victims or their survivors struggle. If access to reparations, or the nature of what is provided, is not carefully considered so that victims can secure it and meet such needs, the gesture will seem careless or perfunctory. As a result, while all of the features support the message of responsibility for wrong or its repair, care for effectiveness in particular signals seriousness and sincerity in the task of reparation, showing that responsibility is fully taken, and that it is not just credit for the reparative gesture, or relief from continuing demands for reparations, but instead the victim’s concrete experience of repair that is sought.

When reparations proposals are contested, the issue is not usually whether any of these four conditions express reasonable expectations of reparations; rather, questions about proposed reparations are usually about whether particular measures in fact fulfill these conditions, which are implicitly assumed. A reparations measure can be and seem evasive if it does not engage the wishes of victims or require consultation with them; unilateral gestures that are unresponsive to what victims expect violate the first interactive condition and may aggravate the victims’ sense of being disregarded. The repetitive failures of the inaptly named “comfort women” to secure the response of the Japanese government that they sought – the Diet’s apology and a publicly financed compensation fund – is, among other things, a failure of interaction.²¹ The second and third conditions, usefulness and fit, address whether a reparations vehicle acknowledges and expresses appreciation of the nature of the loss victims have ­suffered and whether what responsible parties offer seems to acknowledge, in kind and magnitude, what is due. The Lakota Sioux do not accept the proposed court-ordered compensation payment by the U.S. government for the unconstitutional taking of the Black Hills. Even were compensation to be offered as reparations with public apologies, the loss of the Black Hills is not a question of economic value for the Lakota, and payment for them does not fit the offense of cultural destruction, genocidal dispossession, and denial of sovereign nationhood.²² A question about the effectiveness condition can arise when accessing or using what is offered as reparations is made too burdensome. Offering a monetary reparations payment to women in patriarchal societies in which they will have no effective control over the economic resources ­tendered is not effective, nor are money or services offered to female victims of sexual violence who would need to publicly identify themselves to apply for or access their reparations, where this would predictably expose them to social stigma, retaliatory violence, or exclusion.²³

Apologies, one kind of reparations, can also be assessed for their interactive, ­useful, fitting, and effective features. Are they delivered directly, effectively, – and in political cases, publicly – to the victims, providing a full, accurate, detailed, and unqualified acknowledgment of the reality and wrongfulness of the act to which victims can point? The combination of explicit and complete apology and a well-considered vehicle of reparation is most likely to achieve adequacy in sending the vindicatory message, so long as all the elements cohere.

3 A Second Expressive Function of Reparations: Exemplification of Right Relationship

The communicative component of the expressive function of reparations needs to make the present gesture speak to the past and its continuing meaning for relationships among victims, responsible parties, and their communities. If reparations are an invitation to the hope that in turn might make renewed relations possible, a second expressive dimension of reparative acts matters. An act or program of reparations can only transcend being an incidental or isolated gesture addressing the past if it is meant and seen not only as sending the vindicatory message on this occasion, but as exemplifying the rectified relationship in the present and future that could, if sustained, become the basis for acceptable and stable moral, civil, and political relations. I call this dimension of its meaning the exemplifying function of an act or process of reparations.²⁴

In its exemplifying function, the gesture of reparations attempts to model and exhibit the kind of relationship between victim and responsible parties that was lacking or rejected in the circumstances in which the wrong was done. The reparative interaction purports to express to victims and to society the respectful, compassionate, and responsibility-taking attitude appropriate to amends-makers by embodying that attitude. The expression of the attitude in the attempt at reparations tokens a more acceptable form of relationship in general and for the future. It is important to recognize this second, prospective meaning of reparations in order to understand the ways that reparations attempts succeed or fail in their expressive function. For it follows that all reparations measures are vulnerable to failure in two ways. A reparations effort may fail to achieve convincing exemplification of the appropriate ­attitude because of a defective vindicatory message. Or, a reparations effort can fail if the attitude successfully exemplified in the vindicatory message is not consistently adopted and displayed in other or future interactions.

Ideally, the exemplification of right relationship works with and through communication of the vindicatory message. In the best case, the amends-maker clearly communicates an intention to verify the wrong, to “own” it, and to fulfill an obligation of justice to redress it through a reparations vehicle that is interactive, useful, fitting, and effective. The attention, respect, and concern that are shown in the clarity and strength of the vindicatory message, and the appropriateness of the vehicle in and of itself, says something positive about the amends-makers’ acknowledgment of wrong and harm, and their intention to do justice. The context and performance of reparative gestures can add as well to the emotional tone, the sense of gravity, or the public commitment involved in the reparations gesture. The meaningfulness of public apologies, for example, involves the locations from which and the people by which they are given, and how victims are involved and addressed, as well as what they say. Patricio Aylwin Azócar made a public apology to the nation of Chile as its first elected President in the era after the military dictatorship of Augusto Pinochet, delivered from a stadium that had been a center of illegal detention and torture. The speech literally embodied a message of candor about the reality of human rights abuse and a signal that the country had been reclaimed; it was also a part of a political transition in which Aylwin, within one month of his inauguration, created a truth commission to investigate and acknowledge cases of those who died due to human rights violations of the Pinochet regime. Despite the powerful symbolism surrounding the apology and commitment to the truth, however, Chile’s National Commission on Truth and Reconciliation was limited in its mandate to investigate only those human rights violations that resulted in the death of the victims, leaving aside tens of thousands of victims of torture whose cases would not be investigated for another decade. Despite rather robust material reparations, the adequacy of the reparations as acknowledgment of severe and widespread abuses continues to be contested.²⁵ In another example of compromised exemplification through the reparative process itself, consider the German Federal Republic’s massive program of reparations for individual Holocaust victims. Despite the fact that this program remains by far the largest transfer of money ever made in a reparations effort, the process of qualification required an examination of Holocaust survivors by German physicians. In order to receive a pension, survivors had to satisfy German experts that an adequate degree – with bizarre exactitude, at least 25% – of their ill-function could be attributed to the experience of persecution, including confinement in a concentration camp. Many survivors found the process painful and humiliating.²⁶

When reparations attempts fail in the communicative dimension, defects in the vindicatory message or in its presentation can be negative exemplifications: the form of relationship revealed is one in which the amends-maker remains sufficiently out of touch with the wronged parties that the amends-maker fails to appreciate the wrong or the pain and loss of the victims, fails to grasp the effort that this understanding requires, fails to see the victims of wrong as worth the effort, or seems even now not to accept those wronged as moral and civil peers. When apologies are lame or insulting, or what is offered as a vehicle of reparations is unresponsive, insensitive, useless, unfitting, inadequate, or ineffective, the exemplification fails not only in the sense that the attempt doesn’t “come off,” but that it betrays that the wrong kind of relationship persists, undermining even the hope that morally adequate relationships are a real possibility. Reparations efforts can send mixed messages through compromised or questionable exemplification in the act, process, or vehicle of reparations itself.

There is another possible failure of the exemplifying aspect, however, that goes beyond the failure to enact a convincing vindicatory message in the reparations effort itself. As an exemplification of right relationship, the gesture of reparations offers itself as a sample or representative instance of the broader redeemed relationship that is sought. Interactions other than the process or program of reparations, including future ones that directly affect those to whom reparations are given, can fail to live up to the standards of rectified (or basically decent) relationship. Where they fail, and especially if they fail in ways that reflect the flaws or malignancies at the root of the original wrong, the expressive dimension is compromised or nullified. At best, the reparations effort is then reduced to a payment, a monument, an empty verbal gesture, or a report with little reparative meaning. At worst, the failure inflicts renewed insult and aggravation, possibly damaging relationships further. Depending on the relationship and wrong involved, monetary reparations, unless they are framed adequately within a reparative process, can take on counter-reparative meanings. Money can signify “paying off,” the termination or dismissal of further attempts to address a wrong or to build a continuing relationship, or money can seem and be the easiest thing to give and can represent an evasion of something more difficult, such as continuing to grapple with the full truth and meaning of past wrongs and their consequences.

Examples of reparations efforts that stutter, or that fail to establish, consistently express, or sustain the improved relationship the reparations gestures exemplifies, are not uncommon. In Argentina’s reparations program, families of individuals who were disappeared during Argentina’s “Dirty War” were entitled to a lump sum reparations payment of over $200,000 that was given in government bonds. During a financial collapse in 2001, the government of Argentina defaulted on its debts, including its payments of interest and principal to thousands of families. The government pleaded initially that it could not “make an exception” for the families of the disappeared because it would violate legal principle and expose the government to lawsuits. A family member was quoted by the New York Times as saying: “They took our children and never answered our questions about what was done with them, not where how, why, or when. Then they tried to clean their consciences giving us these bonds, and now there’s not even that. It’s too much to bear.”²⁷ Although the policy was revised some months later to continue payment to those who received bonds as reparations, the Argentine government’s false step of treating the families of the dis­appeared like any other bondholders, temporarily betrayed the status of the payments as reparations for horrific wrongs. In another instance, detailed by ­psychologist Brandon Hamber, President Thabo Mbeki of South Africa impugned the ­motivations of victim groups who pressed for long-delayed reparations, while ­perpetrators of human rights abuses rather swiftly secured amnesty; Mbeki implied that ­victims and their families dishonored the freedom struggle by seeking monetary reparations.²⁸

Official apologies as reparative gestures can end up at odds with popular sentiment, thus undermining the prospect of right relationship the apology portends. When Chancellor Willy Brandt fell to his knees at a memorial for victims of the Warsaw Ghetto uprising in 1970s, the gesture was widely viewed favorably as a part of Germany’s reckoning with its crimes in World War II. But when President Aleksander Kwasniewski of Poland asked “pardon in my own name and in the name of those Polish people whose consciences are shocked by this crime,” at a memorial to a massacre of Jews by ordinary Poles in Jedwabne in 1941, widespread resentment and backlash among Poles was reported to follow.²⁹ In a recent case, the Supreme Court of Hawaii relied on the remarkable 1993 apology of the U.S. Congress for the illegal overthrow of the Hawaiian monarchy to block, pending indigenous claims, a transfer of land that was ceded to the United States after the overthrow. The U. S. Supreme Court, however, rejected any legal force of the 1993 apology and allowed the transfers to occur.³⁰

Reparations bear the burden of sending the right message and of opening a portal to hope for a kind of relationship that allows and builds trust, even if it is only or primarily some level of confidence that gross violence and other grave wrongs will not be repeated. The persuasiveness of exemplification rests both on the adequacy of the vindicatory message in the reparations process and also on the grounds it gives for hope that the right relationship will emerge and be sustained more generally and into the future. Reparations are not best seen as a conclusion, but rather as a beginning; reparations do not only fulfill obligations, they also make commitments.

4 Conclusion

The expressive burdens of reparations efforts are heavy, and we should expect that they are often not fully met. The conception of full-blown reparations with which I began might thus be most usefully seen as a best case scenario. There are at least some good instances, certainly in private life, and sometimes in public cases. The U.S. program of reparations for unjust internment of Japanese-American citizens in World War II seems to be viewed widely as one of the good instances. The reparations effort resulted from an initiative of the Japanese-American community and enjoyed strong ­congressional support. It culminated in a response with the authority of the U. S. Congress that offered moral, legal, and political vindication through an official report, public and individualized presidential apologies, a negotiated money payment that was clearly seen by all parties as a symbolic token of good will, and funding for a variety of educational and memorial measures. The relatively small scale of the program, the varieties of amends offered, the participation of representatives of the Japanese-American communities affected, and the fact that the initiative had unusually well-placed political advocates, no doubt contributed to a satisfactory effort.³¹

In his comprehensive taxonomy of mass reparations programs, Pablo de Greiff includes complexity and coherence as distinguishing features of reparations programs. Complex programs distribute benefits of more distinct types; greater complexity introduces flexibility that might enhance the overall impact of a program. Internal coherence refers to compatibility and support among different types of reparations benefits offered by a program.³² Greater complexity, on my analysis of the expressive function of reparations, offers both more conduits for the vindicatory message and the compelling exemplification of right relationships, but also creates more vehicles and messages that individually and in concert bear the ­burden of communicative clarity and convincing exemplification. Given the inevitable economic, political, and social pressures surrounding mass reparations for political violence, authoritarian repression, and historical injustice, and the practical compromises that will likely result in designing a program, it is unlikely that each and all of the messages will fully achieve expressive adequacy, although their total effect, as de Greiff suggests, might be greater than the individual parts. As de Greiff also suggests, the “external coherence” of the reparations program with other ­measures of transitional justice is important to avoid undermining, as well as to reinforce, the message of the reparations measures. This is a question, in terms of my account, of consistent exemplification beyond the reparations program or process itself. Even with internal coherence of reparations measures and consistent support by other measures of justice in the immediate context of reparations, problems await the exemplifying promise of reparations programs where the entrenched marginalized or unequal status of some victims, such as women or minority ethnic or indigenous populations, remains in place, leaving them vulnerable to disrespect or mistreatment despite a reparations effort for particular injustices at a particular point in time.³³

There might also be tensions or conflicts in actual cases among the demands of different features that contribute to the expressive adequacy of a reparations offer or process. The most fitting reparations in the view of victims are often the symbolic ones involving public acknowledgment and remembrance, but monetary reparations might be seen as easily deliverable, effective, and useful, while being less socially controversial in unsettled political circumstances. Yet, in some contexts, victims have been both unsatisfied and uneasy about accepting money payments when fuller forms of public acknowledgment and recognition are what they really value. It is also likely that temptations will arise to trade off some forms of adequacy for others. For example, governments in the wake of conflict may like the visibility and concrete usefulness of infrastructure improvements and communal material investment as reparations when the communities affected by violence are very poor. Yet, attempts to get value twice-over from using investment and development in communities as a kind of collective reparation can mute or cancel the fittingness of what is offered, as victims find what they receive is perhaps only what they deserved as citizens regardless of the specific injuries they have suffered, and that the public goods offered equally benefit others who are not victims (and in some situations those who have been perpetrators).³⁴

It is also true that expressive power is not all or nothing and that the expressive power of gestures can lay in the perception and interpretation of them in context. Some instances of compensation that withhold apologies or admissions of fault, for example, can “play” as reparations to their beneficiaries or to the public, such as the State of Florida’s 1994 compensation program for the white riot that obliterated the town of Rosewood in 1925. While expressly avoiding the language of reparation and offering no apology, the measure went beyond monetary payments (some ­uniform and some based on demonstrable losses and direct exposure to the violence) to include memorial scholarships, a recommendation for continued research, and an admission of failure to prevent the destruction. Although modest, the Rosewood Compensation Act is remarkable given the extensive, unrepaired, and largely unacknowledged history in the United States of violent racial expulsions and white riots extending well into the twentieth century.³⁵ The force of acknowledgment and monetary compensation in such a case can gather expressive significance against a uniform backdrop of silence, denial, and fabricated or selective history. There are deeply contextual, pragmatic, and historical elements, then, in how actions can be interpreted as reparations.

Perhaps the final moral of these complexities is that reparations attempts are best seen as negotiations among victims, parties responsible for wrong or repair, and their communities. This is not only because a negotiation is an indispensable (if not always an easy or successful) way to uncover, clarify, test, and adjust understandings, refine meanings, and coordinate expectations in pursuit of an expressively adequate reparations process. It is also because fruitful negotiation can already be part of a process of repair: for victims, one of regaining voice and control; for those responsible for wrongs or repair, one of taking respon­sibility and learning to attend to the experiences and concerns of victims; for communities, one of coming to understand, and possibly to transform, the sense of who “we” are.³⁶

It might be that what is most important is the increasing recognition in recent decades of a moral imperative of reparations as a matter of justice. Next in importance might be the recognition there is no single or simple measure of justice in reparations, despite the natural desire for a single straight rule – such as restoring the status quo ante or making the victim whole – to guide this process. Instead, there are various features of the reparative message, vehicle, and exemplified relationship that are fraught with meaning for victims, responsible parties, and communities. The negotiation of these meanings within the range of political possibilities is precisely what reparations for massive violations involves.