Abstract
Abstract How does tort law deal with historical injustice? This question appears of increasing relevance since the global quest for the reparation of historical injustices influences tort law. This contribution seeks to offer an answer to it by addressing three sub-questions: (1) how may reparation be claimed, that is, what kind of reparation claims are possible and what problems do they encounter?; (2) why should these claims be sustained, that is, how do they fit in the traditional legitimation patterns of tort law?; and (3) when are they most likely to be sustained, that is, what conditions will enhance their chances of success? In this article I draw on examples from the slavery reparation suits in the US, post-colonial redress cases in the Netherlands, and sexual abuse cases against clergymen (amongst others). I conclude that only under specific circumstances can tort law offer a remedy for historical injustice. Amongst the variables of successful claims are the period of time that has lapsed, the nature of the parties, the remedies claimed, the moral legitimation, and political considerations. This list is not closed, however, since many more cases are to be expected.
Highlights
In law, society and politics, we witness a cultural turn towards gross historical injustices, and perhaps even towards history in general.[1]
How does tort law deal with historical injustice? This question appears of increasing relevance since the global quest for the reparation of historical injustices influences tort law
This contribution seeks to offer an answer to it by addressing three sub-questions: (1) how may reparation be claimed, that is, what kind of reparation claims are possible and what problems do they encounter?; (2) why should these claims be sustained, that is, how do they fit in the traditional legitimation patterns of tort law?; and (3) when are they most likely to be sustained, that is, what conditions will enhance their chances of success? In this article I draw on examples from the slavery reparation suits in the US, post-colonial redress cases in the Netherlands, and sexual abuse cases against clergymen
Summary
Society and politics, we witness a cultural turn towards gross historical injustices, and perhaps even towards history in general.[1]. Since the reparation of gross historical injustice is a relatively new phenomenon for tort law, we will investigate whether it fits in the regular legitimation patterns like compensation, retribution, satisfaction, or distribution (Section III) After investigating both questions, we will see that the success of a claim for the reparation of historical injustice depends mainly on the lapse of time passed, the nature of the parties involved, the remedies claimed, the legitimations to be found, and the political considerations to be made (Section IV). We will see that the success of a claim for the reparation of historical injustice depends mainly on the lapse of time passed, the nature of the parties involved, the remedies claimed, the legitimations to be found, and the political considerations to be made (Section IV) These findings provide a conjectural answer to the question in the title of this contribution, but (again) they need to be concretised in specific legal systems
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