Theory of Accidents

see also: slavery, justice changing, compensation, birthright,

Nic Tideman: The Constitutional Conflict Between Protecting Expectations and Moral Evolution

Three hundred years ago virtually no one questioned the propriety of slavery. Even John Locke, that most articulate advocate of human freedom, invested in slaves. But over the course of the eighteenth and nineteenth centuries, amid extreme controversy in some times and places, slavery was nearly eliminated from the world. With a bit of a lag, a consensus gradually evolved among humanity that slavery was wrong, indeed that no distinctions in civil rights based on race could be justified.

Two hundred years ago almost no one thought that women should be allowed to vote. Amid extreme controversy in some times and places, they were granted voting rights. Now virtually no one argues that women should be denied any rights that men have. We have not yet arrived at a consensus about what equality of the sexes means, but we are near a consensus that we should strive for it.

The next point to be made is that it would not be reasonable to expect constitutional changes that reflect new moral understandings to be made as approximate Pareto improvements. It would have been possible to end slavery in a way that made almost no one noticeably worse off as compared to their expected utilities under slavery. It would merely have been necessary to declare the slaves free, provided that they made reasonable progress on paying debts to their former masters equal to their market value as slaves, and that they used their first earnings to buy insurance policies that would compensate their former masters in the event that they died or became incapacitated before they finished paying the debts. But such an end to slavery would never have satisfied the impulse that pushed for its abolition.

Ending slavery was not an issue of economic efficiency or voter preferences. Slavery needed to be ended because so many people could not in good conscience participate in a legal system that enforced slavery. If slavery was wrong, there was no basis for requiring persons subjected to slavery to purchase their freedom. They had to be recognized as unconditionally free. Others would need to bear the loss from the fact that those formerly recognized as the owners of slaves would no longer be allowed to appropriate the product of slave labor. Who should bear the loss?

Assigning the Costs of Moral Accidents

In addressing this question, it is helpful to employ ideas from the theory of accidents. We now see that the perpetuation of slavery was a moral accident. To reduce the likelihood of future moral accidents, it is sensible to assign the costs of accidents to some or all of the persons who could have prevented them. Costs might also reasonably be assigned to anyone who benefitted from the accidents. Among the prominent candidates for bearing the cost would be those who captured people and sold them into slavery, those who bought, sold and transported slaves, those who held slaves, those who passed and enforced laws perpetuating slavery, those who bought products produced with slave labor, those who sold goods to persons involved in the selling or holding of slaves, etc. Anyone who received an inheritance derived from slavery could be called upon to relinquish it as well. Emphatically not on the list are the slaves themselves and any person who came of age without an inheritance after slavery ended. They did not cause slavery. Thus it was wrong of Britain, in ending slavery in the 1830s, to compensate those who were historically regarded as the owners of slaves with funds from general revenues, and with a rule permitting them to work the slaves for a few more years, during which many slaves were worked to death.

There are particular advantages to assigning the cost of the end of slavery to those who thought of themselves as slave owners. It is administratively more efficient than other possibilities, because in means leaving the costs where they fall. More importantly, the idea that slavery might be seen to be wrong, and that then the costs of ending slavery might be left where the fall, provides a continuing incentive for those involved in slavery to cease. ... read the whole article