The Problem of the Past: How Historic Wrongs became Legal Problems

Compensation for historic wrongs was once legally unthinkable. Now such claims are increasingly commonplace and count among law’s most difficult cases. This paper tells the story of how historic wrongs became legal problems and seeks to provide the foundations for a more robust understanding of redress. To date, literature on historic injustice has tended to focus on threshold questions or on the relatively novel terrain of truth commissions, acknowledgement and commemoration. The survivor’s quest for individual redress has, by contrast, garnered relatively little sustained attention even though such claims are among the most disruptive and challenging aspect of this ‘new’ problem of historic wrongs. This project aims to respond to this gap. It begins by seeking to better understand the problem, using three illustrative cases to help trace how historic wrongs came to be among law’s most vexing problems of responsibility. The UK decisions on the Mau Mau uprising highlight how claims that seek redress for historic wrongs often exhibit surprising force, capable of eroding the once-powerful procedural rules that used to protect the past from legal responsibility. Canada’s five billion dollar settlement of claims relating to the legacy of Indian residential school reminds us both of this force and of the challenges law faces when confronted by its own complicity in historic injustice. Finally the US reparations for slavery movement illuminates how, despite defeat in the courtroom, ‘reparative justice’ claims often possess a tenacious quality that makes them capable of moving powerful institutions. Tracing the role law has played in spurring the problem of the past helps to illuminate some of the key features of redress that have to date been all but ignored and provides the basis for developing more effective responses to historic wrongs.