Abstract: How does a democratic state legitimize strong property rights when property arrangements are widely perceived to be defined by past theft? The answer, I argue, is through restorative justice measures that redistribute wealth based on past dispossession. This answer, however, leads to two more complex questions: Who gets priority in the restorative process given limited resources and how should the process unfold? The concise answers to these two ancillary questions are: First, instances of what I call property-induced invisibility should be prioritized as a baseline for achieving legitimacy. When property is confiscated in this manner people are removed from the social contract and made invisible. Widespread invisibility is of particular concern because it can lead to chaos and instability and places the legitimacy of existing property arrangements in serious doubt. Consequently, states must, at minimum, rectify property-induced invisibility in the restorative process. Second, societies must change the focus from restoration of the physical property confiscated to the larger project of restoring an individual's relationship to society. This will happen if those subject to property-induced invisibility are included in the social contract through a bottom-up process that provides the dispossessed with asset-based choices. The process of allowing people to choose how they are made whole will do a substantial amount of work towards correcting property-induced invisibility and thereby increasing the legitimacy of existing property arrangements. I use a South African case study to test the practical effect of my theories of invisibility and restoration. Keywords: Reparation, restorative justice, restoration, restitution, invisibility, social contract, property, legitimacy, historical injustice, theft, distributive justice, past theft, apartheid, south africa, land reform, land restitution JEL Classifications: H53, I30, I31, O10 Working Paper Series
From Reparation to Restoration: Moving Beyond Restoring Property Rights to Restoring Political and Economic Visibility,
S.M.U. L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/28