Genevieve Renard Painter of the University of California, Berkeley - Department of Jurisprudence has posted an article, Thinking Past Rights: Towards Feminist Theories of Reparations, that appeared in volume 30 of the Windsor Yearbook of Access to Justice (2012) on ssrn. The abstract is as follows:
The notion of reparations encompasses debates about the relationship between individual and society, the nature of political community, the meaning of justice, and the impact of rights on social change. In international law, the dominant approach to reparations is based on individual rights. This normative framework is out of step with the understanding of reparationscirculating among many women activists. I develop a theoretical approach to justice and reparations that helps to explain the gap between the international normative framework and activist discourses. Based on distributive, communitarian, and critical theories of justice, I argue that reparations can be thought of as rights, symbols, or processes. Understandingreparations as either rights or symbols is rife with problems when approached from an activist and feminist theoretical standpoint. As decisions about reparations programs are and should be determined by the political, social, economic, and cultural context, a blueprint for ‘a feminist reparations program’ is impractical and ill-advised. However, the strongest feminist approach to reparations would depart from an understanding of reparations as a process.
A number of things interest me about this paper -- one of them is the continuing (and I might even say growing) emphasis on process. I think this is partly because what is available is process -- and maybe also because lawyers think process is important. The roots of that optimism lie, I suppose, deep in legal thought -- and we see this in all sorts of places, like the hard-look review of administrative law. Somehow we believe that if people will just look at the facts they'll reach the correct result.
There remains so much to talk about regarding past injustices and how to order claims made by the past on the present. I think reparations talk has a lot to contribute to this and a long, long way to go.