The Timing of Injustice

Abstract

This paper examines the possible use of unjust enrichment to rectify historical injustices, and to vindicate today's understanding of what is just. It focuses on the collection by the Canadian government of a head tax from Chinese immigrants between 1885-1923. The logic of unjust enrichment entails that a normatively flawed transfer of wealth must be reversed. This logic does not depend on wrongdoing by the transferee. This makes unjust enrichment a potent tool in the context of historical injustice, because however repugnant we may now find the head tax legislation, we also have a strong commitment to the rule of law, and the rule of law is inconsistent with applying today's standards of wrongful conduct to actions taken long ago. Normally in unjust enrichment, the normative flaw in the transfer must be present at the time of the transfer; but the well-established idea of recovery for a failure of basis (or 'failure of consideration') shows that it is not universally required. It is possible that the transfer is normatively sound at the time it is made, but that it includes some characteristic that lies like a dormant seed of injustice. In that case, later events can, in combination with the characteristics of the transfer at the time it was made, cause the seed to germinate. They can reach back in time to make the transfer normatively unsound. The paper examines whether this logic could allow recovery in the head tax case. Even though they were made pursuant to then-valid law, the transfers of head tax were, in each and every case, characterized by the plainest discrimination on the basis of race, and since 1985, the supreme law of Canada has dictated that discriminatory legislation is of no force or effect. It is certainly arguable that the effect is to undermine any legal justification for the payment and receipt of head tax so many years ago. The enrichment and corresponding deprivation represented by each payment of the head tax are, so far as we know, ongoing states of affairs which now stand exposed as normatively flawed.