Abstract

Excerpted From: Daniel Fryer, What’s the Point of Reparation?, 61 Tulsa Law Review 335 (Spring 2026) (151 Footnotes) (Full Document)

The subject of reparation appears to be on many people’s minds these days. Following the murder of George Floyd, protestors chanted “reparations now” as they marched the streets of Minnesota on June 19, 2020 (Juneteenth), to push for racial justice. A year earlier, the U.S. House Judiciary subcommittee held a hearing exploring a possible path towards reparation for Black Americans through a proposed bill, H.R. 40--a reference to the “40 acres and a mule” recommended as a form of reparation for previously enslaved persons during Reconstruction. And after a 2020 presidential debate, a commentator remarked that the issue of reparation “has become a full-blown political debate among politicians.” To be sure, the debate is far from settled. However, the increased discussion has been enough to inspire a sense of optimism that the United States is moving toward a ““comprehensive and transformative” reparation program. And though a national program of reparation has not received sufficient support, several local governments have taken the initiative to assemble a task force to figure out how best to repair the harms of past injustices on Black people. Indeed, the city of Tulsa has gone one step further, with Mayor Monroe Nichols recently announcing a plan to repair some of the systemic impacts from the 1921 Tulsa Race Massacre.

But what’s the point of reparation? No, I don’t mean this as a rhetorical question that cynically conveys that I think reparative interventions are useless and unworthy of our consideration. But we’ve come a long way from the visionary program of 40 acres and a mule proposed by abolitionists and radical Republicans over a century and a half ago. So, it is worth taking stock of what it means when the topic of reparation is broached today.

A quick look at the scholarly debate shows us that there is no consensus on the issue. Bernard Boxill, for instance, says that the point of reparation is to compensate present day Black Americans for the harms of slavery. While Andrew Valls argues that the wrongs that call for reparation are the ones that took place in the middle of the twentieth century. Leif Wenar argues that we would have no reason to worry about reparation if our distributive justice principles were satisfied. But Roy Brooks claims that reforms that are distributive, rather than restorative, “miss the point.” Chris Kutz says that the point of reparation is to “muster[] a national will to confront and take collective responsibility for slavery’s long-term legacy.” Whereas Janna Thompson says that “the point of reparation is to bring about reconciliation....”

My aim in this Article is not to propose a set of criteria for a comprehensive reparation program, but instead to address a fundamentally antecedent issue-- what’s the point of reparation? The answer to this question will help us gain clarity on other complicated issues, such as what reparation ought to look like and whether demands for reparation are morally valid. Knowing the point of reparation would also have important implications for the design of the reparation program being requested. The resurgence of interest in reparation for Black Americans is a promising sign for anyone concerned with eradicating racial injustice in this nation. But if we’re going to demand ““reparations now,” we better get clear on the reasons we are demanding it.

This Article is an attempt to shift the debate around reparation. After surveying some of the leading rationales for reparation--reparation as compensation, reparation as a supplement to distributive justice, reparation as reconciliation--I argue that none of them provide a satisfactory answer to this Article’s title question. Although my focus here will be primarily on reparation for Black Americans, I suspect that some of what I say carries over to other groups who suffer the consequences of historical injustice. Thus, this Article serves as a start point for answering more general questions about the proper place of reparative justice in our theories of what we owe each other. To foreshadow my conclusion: the point of reparation is to repair unjust social relations that have been created by past wrongdoing. By providing a due diligence investigation of the dominant views of reparation and by sketching a more promising picture of reparation at the end of this Article, I intend to change our understanding about an important ethical issue that is highly misconstrued.

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This paper calls for a shift in the discussion around reparation. The three dominant theories miss the point, and the relational account I endorse does a better job of helping us understand the current calls for repair. Recall again the Minnesota protestor’s statement that “[f]or 400 years, the United States government has had its knee on the neck of the black community socially, politically, economically and spiritually....” The issue here is Black people’s relations to the U.S. government. The call here is for the U.S. government, through its system of remedies, to address these deep wounds and create a society where Black people are no longer viewed as inferior. By focusing on mending the relations between historically wronged parties and the individual and institutional agents that have treated them as inferior, a relational approach seems to capture the point of reparation advanced in arguments today.

Sometimes, too, I get the feeling that this has always been what Black people’s claim for reparation was about. As a Texas politician recently noted, “[w]ith 40 acres and a mule, what slaves were asking for was the ability to become functioning members of society, by working....” And that last bit is important--because it shows that it was never about a free handout. The forty acres and a mule were merely a proposed temporary lease so Black Americans could achieve the level of emancipation that was required to relate to others as equals in society. Once that status was achieved, it was expected that Black Americans would no longer be second-class citizens.

But that status was never achieved--and the process of repair never happened. Yet the idea lives on in many forms, from Spike Lee’s production company to the bill, H.R. 40, proposed by Congressman John Conyers. But it would be a mistake to view reparation as Black Americans merely seeking the long-avoided payment. Instead, we should use our knowledge of history and attempt to remove the barriers that get in the way of us creating a society among equals. And that cannot wait another 400 years. We need reparation now.

Assistant Professor of Law and Philosophy, University of Michigan.