[Elster, Jon (1992), On doing what one can: An argument against restituation and retribution as a means of overcoming the Communist legacy, East European Constitutional Review [1 (2):15-?]

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On doing what one can
An argument against post-Communist restitution and retribution

In the debates over "backward-looking justice" - retribution and restitution - in Eastern Europe, one often encounters an argument to the effect that the best should not be allowed to become the enemy of the good. In other words, although it is admitted that not all the guilty can be punished, and not all those who suffered be compensated, one should at least "do what one can." Specifically, respect for the law requires prosecution of those who are demonstrably guilty of torture, executions and other acts punishable under the laws of the Communist regime, even if many will slip through the net because no proof can be found. Similarly, respect for property requires that nationalized or confiscated property be restored to its former owners, even if many other forms of suffering go uncompensated. In this article I will lay the groundwork for the opposite conclusion, namely that one should target everybody or nobody. And because it is impossible to reach everybody, nobody should be punished and nobody compensated. Although I shall not here try to make the full case for these strong conclusions, I shall at least attempt to refute the pragmatic argument for doing what one can.

Consider first retribution and the problem of equality before the law. In Eastern Europe today this problem arises in several contexts. First, singling out individuals listed as informers to the secret police for especially severe treatment may involve a severe injustice. Under the Communist regimes (I've heard this specifically about Bulgaria and Hungary) it was often taken for granted that party members would act as informers if called upon, and so there would be no need to list them as collaborators. It would be a miscarriage of justice to punish what may have been marginal, involuntary and occasional informers while letting the regular informers go free.

The problem of the big fish versus the small fish also arises, as Vojtech Cepl pointed out in the last issue of the EECR ("Ritual Sacrifices," p. 24), when those who execute orders are punished while those who gave the orders go free. The conviction this January of former East German border guards, compared to the drawn-out extradition process of Erick Honecker, provides a graphic illustration of the point. Although it is true that murderers and torturers do not become less guilty by the fact that they were simply carrying out orders, it is also and more importantly true that top officials do not become less guilty by the fact that they never explicitly gave orders to murder and torture. Typically, top officials give vague instructions to middle-level officials, who translate them into precise orders for low-level officials. Many top officials could only be prosecuted on the basis of collective guilt, a principle that in my eyes is no less abhorrent than that of catching the small offenders while the large go free. Only a general amnesty would allow us to avoid both these objectionable procedures.

Finally, the problem of equality before the law would arise if one tried to effect private retribution though tort litigation, as in a proposal that is currently making the rounds in Eastern Europe. Practical objections apart, the procedure would be doubly unjust, both from a victim- oriented and a perpetrator-oriented point of view. Not all victims would be fortunate enough to have a wealthy perpetrator from whom they could extract compensation. And not all perpetrators would be wealthy enough to have something to lose, or living victims who could take it away from them.

Consider next the process of restitution. The main issue, once again, is that of equal treatment. It is important to keep in mind that essentially everybody suffered under Communism. Whereas some lost their property, others - many others - had opportunities denied to them through the arbitrary or tyrannical behavior of the authorities. Access to higher education, to good jobs, to travel abroad and other vehicles of self-realization was rationed on the basis of political reliability. Moreover, freedom of contract in the labor market was for all practical purposes abrogated, seriously limiting the opportunities of those who had nothing to sell but their labor- power.

Imagine two Czech workers. One is a small factory owner (or the son of an owner) whose property was confiscated in 1956. The other comes from a traditional working-class family. For different reasons, both have a much poorer standard of living today than they would have had if Czechoslovakia had pursued its prewar capitalist course. The suffering of both can be traced back to the same illegitimate state actions, because confiscation of private property harmed not only owners but also those whom they would have employed. The latter, too, were denied the opportunity to engage in capitalistic transactions among consenting adults. There is no reason why the former owner or his heirs should get special treatment. And as it would be absurd to indemnify everyone, it follows that one should not compensate anyone.

Intangible Harms
Less tangible effects are equally important. Because of censorship and indoctrination, minds remained stunted, limited, and distorted. Rewards to informers and opportunists bred not only corruption, but a pervasive atmosphere of uncertainty and distrust. Deception and self- deception were everywhere. When people are given access to their security files, as is happening today in Czechoslovakia and the former GDR, their worst suspicions are proven true. Their spouses, best friends and closest colleagues are regularly listed among those who informed on them to the security police. It is hard to know who suffered the most; those who lived with the half-knowledge that they were spied upon or those who were told that unless they consented to spying their lives would be ruined.

These sufferings were direct consequences of the unjust actions of the regime. Although some of the wounds may appear to have been self-inflicted, the ultimate cause of the acts of self- abasement that took place was the horribly confining environment. In an ideal scheme of rectification, these forms of suffering, no less than material deprivation or loss, would provide valid grounds for compensation. It would be arbitrary and wrong to single out one group of victims - the owners of tangible property - for compensation. In my view - but this is obviously a more controversial claim - it would also be wrong to ignore the sufferings that people brought upon themselves by their complicity with the regime. People cannot be held guilty for what they are forced to do. If the alternative to a given action is something that by all ordinary standards is very bad - losing one's job or going to jail - it is not far-fetched to say that one is forced to perform that action. To abstain, as some did, is morally admirable - but can we really say that it is morally required? Many people no doubt did their best to comply with the authorities while trying to minimize the damage they did to others. Perhaps in the end, they did more harm to themselves than to anyone else.

Once again, the objection will be made that the best is being made the enemy of the good, that a partial solution is preferable to doing nothing. Even granting that everybody suffered, loss of property is special because property is special. In the first place, or so the objection would go, it is easy to identify and quantify property, but nearly impossible to locate and measure frustrated opportunities. On the principle of "doing what one can," one should compensate for loss of property even if other sufferings go uncompensated. In the second place, property rights are especially central to the system of individual rights and have a special claim to protection.

I flatly deny the second claim. Property rights are, in my opinion, among the least rather than the most inviolable rights. Those protecting individual dignity, autonomy and privacy are much more central. Freedom of contract, too, is at least on a par with property rights; hence the rights of those who were prevented from selling their labor-power were no less violated than the rights of those whose property was taken away from them. The first claim is, I think, incoherent. The idea of fully compensating all citizens is nonsense, because in the absence of massive foreign aid it would amount to little more than people taking in each other's laundry. Full compensation to some of the victims cannot be defended as a second-best approximation to the ideal of universal compensation if that ideal itself is meaningless. Imagine, as an analogy, a political party that had on its program that everybody should earn more than the average income - and then proposed a partial implementation by offering more than the average to a subset of citizens.

Obviously, things are more complicated. Not everybody suffered: even though the economy was inefficient, many officials lived off the fat of the land. Some citizens were innocent and even heroic: some of them today are presidents of their countries. And there are countless nuances in gray. I have tried, however, to focus on the main picture, which seems to me to be dominated by ambiguities of the kind I have discussed. There is no fixed point from which justice can proceed - only a sea of confusion.

[Elster, Jon (1992), On doing what one can: An argument against restituation and retribution as a means of overcoming the Communist legacy, East European Constitutional Review [1 (2):15-?]

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