by Christopher Thornton
All legal principles seek, at least in theory, to advance some form of justice. Justice is not however an axiomatic concept; it is highly context-specific and ambiguous. When we are attempting to codify and promote legal norms we cannot afford to fall back on Justice Potter Stewart’s “I know it when I see it” test. Rather we must rigorously interrogate whether a particular legal norm advances justice and under what conditions. This post will attempt a preliminary exploration of the justice of property restitution. It will examine the philosophical paradigm that forms the basis of this “right” and consider how property restitution looks through different philosophical lenses.
Paolo Sergio Pinheiro, the godfather of the right to property restitution in the form of the ‘Pinheiro Principles,’ refers to this right as a “key component of restorative justice” (Principle 2.2) What exactly is meant by “restorative justice”? Restorative justice is a judicial approach that aims to foster reconciliation between conflicting parties. It does not seek to apportion blame but rather to find solutions that allow the parties to both feel that, as justice has been delivered, they can re-establish their relations on a normal footing. Mediation and other flexible problem-solving approaches are characteristic of restorative justice. Restorative justice approaches are particularly useful in post-conflict situations, where the dichotomy between perpetrator and victim is seldom self-evident.
The notion of a right to property restitution, at least strictly interpreted, does not conform to the usual definition of restorative justice. A right to property restitution, and perhaps more broadly an unconditional right to anything, eschews problem-solving approaches and encourages total disregard for the views of the other concerned party. There is little space for a negotiated solution where one party feels they have absolute rights and are absolutely right. I believe that Pinheiro’s use of the term “restorative justice” is misguided, perhaps a result of a conflation of “restorative” with the verb to restore: “to return (something lost, stolen etc.) to its owner”.
It would be more accurate to describe property restitution as a form of corrective justice. Corrective justice finds its philosophical roots in Aristotelian ethics. What matters for a just solution in Aristotle’s eyes is that corrective action is taken to return the situation to the status quo ante. Aristotle describes this as equality: “the just … consists in having an equal amount before and after a transaction.” Property restitution aims to restore a person to the state they were in before the ‘transaction’ took place, i.e before their displacement and subsequent loss of their property, and thus evinces a corrective justice approach to the problem of post-conflict property disputes.
Aside from the practical problems created when more than one “transaction” has taken place (necessitating a chain of corrective actions, which, in some post-conflict situations, has made property restitution programmes look like a game of “musical chairs” in Cox and Garlick’s words), the main problem with this conception of justice is that it presumes the status quo ante was just. Putting aside the question of whether forced displacement is the “right” way to address unjust distributions of property (which I don’t think it is), how do we decide whether a particular person was justly entitled to their property (and by extension, unjustly deprived of it)?