Monday, May 21, 2012

Edwards on the Expulsion of German Czechoslovaks after World War II, and the understanding of restitution

Unworthiness, Time and Collective Responsibility: A Case Study in the Paradoxes of Restitution is a new paper by Mark A. Edwards, William Mitchell College of Law.  Here's the abstract:
This article examines a massive but largely forgotten ethnic cleansing that occurred immediately after World War II, in which millions of ethnically German Czechoslovaks lost their property rights and citizenship and were forcibly expelled from the country. Drawing upon interviews with claimants now pursuing restitution, it tells stories that are both remarkable and revealing of paradoxes that undermine restitution claims.

It argues that the social construction of rights-worthiness plays a critical role in mass dispossession and restitution. The social construction of rights-worthiness changes over time, so that in many instances people once considered unworthy of property rights ‘become’ worthy of them. However, time also inevitably corrodes the practicality and moral weight of claims to restitution. This creates what I refer to as the time/ unworthiness paradox: by the time claims for restitution become socially viable, they are often no longer practically or morally viable.

The article also identifies a paradoxical role the concept of 'collective responsibility’ plays in restitution claims. Mass dispossessions often occur because of the wrongs committed by a few members of a group. However, restoring property rights to victims of mass dispossessions often requires the dispossession of innocent current occupiers of land. Thus, it is frequently argued, restitution may commit the very wrong it seeks to right. The article proposes refining our concept of 'collective responsibility’ to distinguish between two phenomena: the assignment of collective rights-unworthiness, which results in the mass dispossession of others, and the voluntary acceptance of collective responsibility, which results in the restitution of others. The former is unjust; the latter is an embrace of justice.