Columbus Day, the Non-Identity Problem and the Fisher Case

By Mike Dorf

In observance of Columbus Day, I'll take this opportunity to plug a fascinating book I recently read--1493: Uncovering the New World Columbus Created, by Charles Mann.  As the book's subtitle suggests, Columbus did not so much "discover" the New World for Europeans as "create" it, in numerous ways.

Some of these creations are familiar--or at least should be.  For example, tobacco, maize, tomatoes and potatoes were not known to Europe or Asia until they were transplanted as part of the "Columbian exchange."  Medieval Italy had no tomato sauce (and pre-Marco Polo had no pasta), while Ireland had no potatoes.  The introduction of New World plant species to Europe and Asia had far-reaching consequences for subsequent world history.

Meanwhile, the introduction of European and African diseases to the New World had devastating consequences for the native populations.  Here's a tidbit I found revealing: The African slave trade received a giant boost from the combination of several factors.  First, efforts to enslave the native populations were complicated by the fact that runaways could rejoin their own communities, while imported Africans would have worse prospects on their own (although over time that changed, as communities of "Maroons" developed).  Second, both native peoples and Europeans (typically brought over as indentured servants) were highly susceptible to dying of malaria and other diseases that took root in the New World after having been brought here inadvertently by Europeans.  But because those diseases originated in Africa, Africans were less susceptible to them.  Thus, even taking account of the horrific losses of life occasioned by the conditions on the slave ships, African slavery was still more economically sound (in general) than other means of supplying labor for the extractive and agricultural enterprises of the New World.  Consequently, although our history books teach that the European discovery of the New World was largely a story of European transplantation, it would be more accurate to say that-the colonization of the New World was more like the replacement of native peoples with African slaves.  Europeans were in charge but were a minority of the settlers (at least until the 19th Century).

Mann's point is not to reckon history as a story of perpetrators and victims.  For example, he notes the large role that Africans played in the slave trade.  But it is nonetheless fair to say that the Columbian exchange on the whole benefited European civilization and harmed native American and African civilization.  And so if we are to think about historical injustice, it would also be fair to say that current descendants of the victims--contemporary native Americans and African Americans--have many reasons not to wish to celebrate Columbus Day.

But what should we make of the fact that were it not for the Columbian exchange, just about nobody alive today would exist?  This is the so-called "non-identity problem."  How can the descendants of people who would not exist but for a historical injustice perpetrated against their ancestors complain about that historical injustice--unless they would be better off never having been born?

A number of approaches to the non-identity problem can be found in the relevant philosophical literature.  I find two of these reasonably persuasive.  One (elaborated by occasional DOL contributor and Kings College London Lecturer Ori Herstein) circumvents the non-identity problem with a kind of two-step.  Step One: The historical injustice is an injustice not only to the individuals (individual enslaved Africans, individual native Americans wiped out by disease and genocide) but to the groups those individuals comprise.  Step Two: Modern descendants of the victims of the historical injustices can complain by virtue of the fact that they are members of the same victimized groups.

I find the group-harm explanation persuasive but incomplete, because I find the non-identity objection ineffective even in cases where there is no group harm.  Suppose that a bad act ensures both that a particular person P will be born and that P will be born with some hardship.  Perhaps the bad act is the manufacture of a drug for infertile women that both makes them fertile and causes birth defects.  Can a person who suffers a birth defect as a result of his mother having ingested the drug successfully sue the manufacturer?  Putting aside the positive law, my own moral intuition in this case says that the non-identity problem should not relieve the drug manufacturer of responsibility.  And that's true even though there's no group harm in this example.

Put differently, the non-identity problem really isn't--or shouldn't be--a problem ever.  Sure, but for just about anything that happened in the sufficiently distant past, the present would look quite different.  But that oughtn't to excuse bad actors for their bad acts, simply in virtue of the fact that the particular people alive today somehow owe their existence to such bad acts.

Does the converse hold?  Can we say that  people who have, in some sense, benefited from past events for which they were not responsible should not be held accountable for those past events?

That question brings me to the Fisher case, which will be argued in the Supreme Court on Wednesday.  The case will probably be decided on relatively narrow grounds--either upholding or rejecting the University of Texas admissions procedures as satisfying or violating prior affirmative action precedents.  But it's also possible that the Court could use the case as an occasion to reexamine its core views about affirmative action.  If so, it might consider one argument sometimes advanced in favor of affirmative action for traditionally disadvantaged groups: that people who are not members of those traditionally disadvantaged groups have nonetheless benefited from the discrimination against them, even if the beneficiaries did not themselves engage in invidious discrimination.  According to this argument, there's nothing unfair about making "innocent" majority-group members sacrifice some privilege for the benefit of some minority-group members, because the majority-group members are not really innocent.  Even if they themselves did not discriminate, they benefited from the discrimination; their privileged position would not have existed without it.

In discussing affirmative action with students and others over the years, I have found the foregoing sort of justification for affirmative action singularly ineffective.  I now think I understand why.  I think (tentatively)  that people do indeed have the converse of the reaction to the non-identity problem.  Just as people don't think that accidents of causation should let wrongdoers off the hook, so they also don't think that accidents of causation should be deemed to convert innocents into the sorts of people who owe reparations.

Let me be clear.  I'm not saying that I reject the argument that current privileges are rooted in past and ongoing discrimination.  I'm saying instead that people who do reject this argument may well be responding to the same sorts of intuition that leads me (and others) to find the non-identity problem unproblematic.