Compensation

First consider compensation. In the classic slogan of tort law, compensation aims to “make the victim whole” again. That is the aim not merely of tort compensation but also of compensation in general.

With compensation, the focus is primarily on the victims and making them whole. True, the wrongdoers do not disappear from sight altogether: they cannot, when what we are doing is compensating victims for the results of a wrongdoing.Footnote ¹² There can be no wrong without a wrongdoer, no tort without a tortfeasor. At law, tort is a private action, purely between the tortfeasor and the victim, and the wrongdoer is the sole source from which tort compensation can be extracted. Morally, we may not want to be so restrictive; socially, we have instituted various schemes for compensating criminal injuries from public coffers. Still, regardless of who pays, the point remains: no one is entitled to compensation under a criminal injuries compensation scheme unless there has been a crime, and hence there is a criminal.

Even where it is the wrongdoer who is supposed to pay the compensation, the focus of compensation is far more on the victim than the wrongdoer. Under schemes of pure compensation, compensating the victim is the end, and extracting what is required to do that from the wrongdoer would be merely the means.Footnote ¹³

Giving back what was taken—literally the same thing, as in paradigmatic restitution—is sometimes a good way of compensating the victim, but it is far from the only way.Footnote ¹⁴ Claims to compensation do not collapse just because the thing that was taken is no longer available to be returned.

In any case, compensation's focus is firmly on the victims and restoring their well-being, rather than (as with restitution) on the object and restoring it to its rightful place. Notice also that the victims might sometimes have lost far more than the wrongdoers gained through the wrongdoing. In such cases, for the wrongdoers to compensate their victims fully, they would have to give up much more than they wrongfully obtained—thus further underscoring compensation's focus on the victim rather than the wrongdoer.

Retributive Punishment

Punishment is another person-centered response to wrongdoing, focused in this case on the perpetrator rather than the victim. The point of punishment in its retributive mode is to make the wrongdoer worse off in consequence of the wrongdoing, thus restoring balance to the moral universe.

Typically (but not invariably) someone has been made worse off by the wrongdoing. Punishing the wrongdoer may make that person better off, either psychically (satisfaction in seeing the person who wronged him or her suffer punishment) or materially (stolen property being returned). But when it comes to punishment, benefiting the victim is not the main aim. The focus of retributive punishment is on the wrongdoers and making them worse off in consequence of their wrongdoing.

This focus is readily apparent in the punishment that the state metes out for criminal offenses. Those punishments are public actions, not private ones. They are taken by the state against the wrongdoer on behalf of society at large, rather than privately by wronged parties. Pragmatically, the success of those actions may depend on victims’ cooperation (pressing a complaint, giving evidence, and so on). But criminal punishment is not imposed for the satisfaction of the victim alone. Criminal prosecution is meted out for a “public wrong” that, as Blackstone (Reference Blackstone1765, bk. 4, ch. 1) says, “is a matter of universal concern” across the entire community. Once a criminal prosecution is underway, the victim cannot formally quash it by forgiving the wrongdoer and withdrawing the complaint. Nor is there any thought that a criminal prosecution will necessarily redound to the benefit of the victim particularly (much less exclusively and perhaps not at all). Its purpose is to punish the criminal.

In the second dimension of the taxonomy, punishment is person-centered rather than object-centered. True, the objects wrongfully acquired may be confiscated, in partial punishment for the wrongdoing. But with punishment, the focus is on the wrongdoers and diminishing their welfare, not on the objects in their own right (as with disgorgement, to be discussed in detail shortly). In any case, notice that stripping people of whatever they gained from they wrongdoing is not really punishment because that would merely ensure that the wrongdoers are no better off, whereas punishment is supposed to make them worse off for having committed the wrong.

Restitution

Different though they are in other crucial respects, punishment and compensation are both person-centered responses to wrongdoing: the former focusing on diminishing the well-being of the person who has committed the wrong, the latter on restoring the well-being of the person who has suffered it. Next consider a pair of responses that focus instead on the fruits of wrongdoing—on the objects themselves and who is in possession of them.

Restitution of the sort I discuss here focuses on the objects that the victim has lost through the wrongdoing.Footnote ¹⁵ The aim of such restitution is, first and foremost, to get those objects back to the right place—into the hands of their rightful owner.

The victim will (ordinarily at least) be made better off by having the object returned. But the object's possession, not the victim's welfare, is the focus of this sort of restitution. Restitution might even involve the return of an unwelcome object to its rightful owner.Footnote ¹⁶ Its focus is on the objects and ensuring that they are returned to the right places (viz., back in the hands of their rightful owners).

When the wrongfully displaced object still exists, restitution is a simple matter of “giving it back” to its rightful owner. Then restitution is merely a matter of “tracking” where the object has gone, in the terminology used later. Where that object itself is no longer extant, restitution is a matter of “tracing” what it has turned into and giving that back.

Disgorgement

Recall now the “torchlight strategy” underlying this taxonomy. Assuming my two-dimensional taxonomy effectively captures the three familiar ways of responding to wrongdoing just discussed, the torchlight is thus shone on an additional cell. In this cell is a way of responding to wrongdoing that is missing from that standard list of remedies for historical wrongdoing: disgorgement.

Like restitution, disgorgement of the sort here under discussion is object-centered. But whereas restitution focuses on the objects that someone has lost, disgorgement focuses on objects that someone else has gained, objects that are now wrongfully in someone else's possession. Whereas the prime injunction of restitution is to “give it back,” that of disgorgement is to “give it up.” That is to say, whereas restitution restores objects to their rightful owners, disgorgement enjoins people to relinquish objects that are wrongfully in their possession.

Again, when being forced to give up a good, the wrongdoer will (ordinarily) be made worse off. For some writers, that is precisely the point of disgorgement: to deter wrongdoers from their wrongdoing by ensuring that they get nothing out of it (Elhauge Reference Elhauge2009; Gibbs and Fleder Reference Gibbs and Fleder2003; McCall Reference McCall2006). Rationalized in that way however, disgorgement would be just another form of person-centered punishment of the wrongdoer, rather than being a distinct way of responding to wrongdoing.

Here I focus instead on another way of looking at disgorgement—a way that is genuinely distinct in its being object-centered rather than person-centered. When disgorgement is viewed in this way, its primary aim is to get goods out of someplace they should not be—out of the hands of people who hold them wrongly. If doing so makes wrongdoers worse off, that would be merely an incidental effect of disgorgement rationalized in this object-centered way.

Disgorgement can sometimes be combined with restitution, with misappropriated goods being removed from the wrong hands and returned to the right hands. But although these approaches can sometimes be conjoined, they need not always be. We can—and under the “proceeds of crime” acts we do (Australia 2002; UK 2002)—require those who are wrongly in possession of something to relinquish it, even if we have no idea to whom it should rightfully be returned.

No-fault Compensation

When tort lawyers think of compensation, they are thinking of using it to remedy harm inflicted as a result of a tortious wrongdoing against the victim. But when insurance underwriters think of compensation, it is for losses that have occurred through no fault, certainly of the insured party's own or (often) of anyone else either. In one of the earliest steps toward the modern welfare state, no-fault workers’ compensation insurance replaced tort remedies for workplace injuries precisely to avoid the difficulties in proving fault in such cases (Swaan Reference Swaan1988, 177–217).

Compensation in general focuses on the victims and what it takes to restore them to their position before the harm that had befallen them. No-fault compensation simply takes that focus on the victims to its logical extreme, suppressing any inquires whatsoever into the behavior of any other people and whether any wrong has been committed. The focus of no-fault compensation is purely on the victims and making them whole again.

Incapacitation

There is a fault-free analog to punishment as well. Take the case of a person who does something wrong (he has killed someone, say) but who fails some of the criteria for ascriptions of responsibility (he is legally incompetent to plead, say), so he is not to blame for what he has done. Insofar as he has done something wrong (and especially if he is likely to do so again), such a person may need to be confined to prevent harm to himself or to others. But in the absence of fault or responsibility, that should be conceived of as fault-free incapacitation rather than fault-based retributive punishment.

Like punishment, incapacitation is a person-centered, perpetrator-centered response to the wrongful happening. Unlike retributive punishment, however, the aim of incapacitation is not to make the perpetrator suffer for any faulty performance. In the case of incapacitation, that person-centered perpetrator centeredness instead concerns the perpetrator's future conduct. True, insofar as the deprivation of liberty is bad, the person so confined is made worse off in consequence. But diminishing the perpetrator's well-being is incidental to the purpose of fault-free confinement, the main aim of which is to avert future harm from further actions for which he could not be blamed.

Restitution of Innocent Error

Sometimes restitution of the sort I have been discussing concerns goods that have been misappropriated through a wrongdoing. Other times restitution concerns goods misdirected through innocent error. A classic example is a case of wine that is delivered to your house by mistake. Full restitution would require you to relinquish it to its rightful owner, even though neither you nor anyone else has committed any wrong against anyone. True, the delivery person got something wrong (the delivery address). A wrongful happening has occurred; the wine ended up at the wrong door. But that was merely a mistake, an innocent error to which no fault attaches.

This form of restitution, like its fault-based counterpart, is object-centered rather than person-centered. When making restitution of goods supplied through an innocent error, one person is indeed made worse off and another better off. But neither of those effects is really the main point of the exercise, as here understood. The main aim of this sort of restitution, whether or not fault was involved, is simply to get the objects back into the right hands—those of the rightful owners.

Disgorgement by Innocent Beneficiary

Just as all those more familiar responses to wrongdoing come in both fault-based and non-fault-based forms, so too does disgorgement. With disgorgement, the fault-free form arises when someone is innocently in possession of something that has come to him or her as a directly traceable result of someone else's wrongdoing. Disgorgement could be required in this case, even though the innocent beneficiary is in no way at fault.

Ex hypothesi, in such cases, there was a wrong committed somewhere along the line. But, also ex hypothesi, the innocent beneficiaries are in no way to blame for that wrongdoing. It is nonetheless wrong that they have that object, even if they themselves did nothing wrong to get it. And the sheer fact that it is wrong for them to have it can be sufficient reason for them to be morally required to relinquish it.

Maybe innocent beneficiaries should not always be morally required to relinquish the object. “Good faith purchasers” are often allowed to retain (or are compensated for being required to relinquish) goods that they had no way of knowing were stolen at the time of purchase; that is particularly so if they have innocently done something subsequently to make themselves reliant on those goods’ continuing possession (Levmore Reference Levmore1987’ Seavey and Scott Reference Seavey and Scott1937, §§172–76). Beneficiaries who are innocent only in the sense of not being implicated in the original wrongdoing, but who knew (or could and should have known) that the goods were stolen, can much more reasonably be morally required to disgorge them (Luban Reference Luban1999; Smith Reference Smith1983).

Disgorgement of this sort focuses on the object, not the person. It aims simply to remove the object from somewhere it does not belong. From this perspective, people who find themselves wrongly in possession of an object must relinquish it, even if they are innocent of any wrongdoing in obtaining it. The innocent beneficiary should be required to “give it up,” just as the recipient of goods through innocent error should be required to “give them back.”

As with restitution, the duty to disgorge applies not only to the specific object that was wrongly misappropriated but also to whatever else it has since turned into. So the same sort of “tracking” and “tracing” described in connection with restitution is also required in the case of disgorgement.

Finding the Fruits of Wrongdoing

Corrective justice requires people to disgorge what they obtained as a result of wrongdoing.Footnote ²⁴ But understanding “as a result” purely causally would make the requirement far too strong. It is not the case that everything that comes causally downstream of a wrongdoing necessarily needs to be relinquished.

Imagine a couple of variations on the story of Henry Smith. His wrongful 1489 enclosures drove many peasants off that land, and in consequence Smith had far fewer neighbors from whom he could catch the plague that struck 20 years later. Suppose that in consequence Smith survived to inherit the estates of a kinsman killed by the plague. Had Smith not wrongfully enclosed the commons and driven away the peasants, he too quite probably would have died. His inheritance would then be causally downstream of his wrongdoing. Still, his newly inherited land would not bear the right sort of relationship to the wrongdoing (enclosure of the other land) for a requirement of disgorgement to apply. Smith's newly inherited land is something he obtained in consequence of his wrongdoing, rather than in any way being something that he obtained in the course of that wrongdoing.

Contrast that with this other version of the story. Suppose Henry Smith sold his country estates, made much more valuable by the enclosures, and invested the proceeds in ships that made him a great fortune. The proceeds of that investment—as direct products of the money that came directly from the sale of the illegally enclosed commons—do look like something we would reasonably require Smith (and arguably his heirs) to disgorge as the proceeds of crime.

Thus, there may be all sorts of benefits that are attributable in some causal way to an act of wrongdoing (by yourself or others) and to how that act intersected with the rest your life. Not all of those benefits are properly regarded as fruits of that wrongdoing, however, or hence are properly subject to disgorgement. Identifying the fruits obtained in the course of wrongdoing—and tracking and tracing them and their successors through time—is therefore an essential part of disgorgement.

Tracking and TracingFootnote ²⁵

Disgorgement and restitution are both object-centered responses to wrongdoing. They focus on the object, with restitution saying “give it back” and disgorgement saying “give it up.” In both responses, therefore, the identification of “it” is of signal importance.

Sometimes the identification of the object to be given back or given up is a simple matter just of trackingFootnote ²⁶ the same physical object as it passes from one person to another. Other times, it is a slightly more complicated matter of tracking the physical object as it goes through physical transformations. The land that Henry Smith enclosed and took as his own is the same parcel of land today, even though a factory now sits on the site. Nothing essential has changed, the identity conditions defining a plot of land solely by its geographic coordinates.

In yet other cases, one object is swapped for some wholly different object. To determine what you have to give back or give up in such cases, we do not track the same physical object through time and space. Instead, we look for the new things that have taken the place of the old. Sometimes substitutions are “clean, uncomplicated swaps,” with one object or set of objects simply being exchanged for the old. Imagine, for example, that the proceeds of Henry Smith's sale of the wrongfully enclosed lands went into the purchase of his shipping fleet, without remainder. Other times the substitutions are “mixed,” as would have been the case if Henry Smith bought those ships with the combined proceeds of the sale of his Warwickshire estates and of other untainted properties elsewhere.Footnote ²⁷

The fundamental point is simply this: the duty to give it back or give it up does not necessarily lapse when “it”—the original physical object—is no longer available to be given back or given up. The same duty extends to whatever can be shown (through some suitable procedure tracing the substitution of one thing for another) to have taken the place of the original.

Whereas “tracking” is of physical objects, “tracing” is of something more abstract. “The only connection” between the old thing and the new, in such cases, is “that. . . the new thing . . . was acquired with the original thing” (Smith Reference Smith1997, 15). What we are tracing is the value that is embodied in the one thing, which is exchanged for the value embodied in another (Birks Reference Birks and Birks1995, 300; Smith Reference Smith1997, 15).Footnote ²⁸ Thus, in the example just given, we can trace “the land that Henry Smith wrongfully enclosed” through “the ships he bought with the proceeds of their sale” to “the fortune that he subsequently came to enjoy and pass on to his heirs.” That fraction of the fortune traceable to the wrongdoing of Henry Smith should accordingly be subject to a duty of disgorgement.Footnote ²⁹

Back into the Common Pool

But relinquish it in favor of whom? Not any other particular person, as with restitution. In the process of disgorgement, property is relinquished simipliciter, without its being transferred to anyone. That means simply that the property in question passes back into the common pool of unowned things. In practice, that means that the property passes back to the state, as the agent with responsibility for overseeing that common pool.

For an analogy, consider the common law doctrines of escheat and bona vacantia. According to those doctrines, property passes back to the Crown when someone dies intestate or when undistributed assets of dissolved companies remain unclaimed for a certain period (Blackstone Reference Blackstone1765, bk. 2, ch. 15; UK Crown Estate 2012; UK Treasury Solicitor's Office 2012). Many U.S. states deal similarly with unclaimed property. Similarly, the proceeds of crime can be confiscated by the state (Australia 2002, pt. 2–2; UK 2002, pts 2–3).

My proposal is that the same should be the case with property disgorged as the result of grievous wrongdoing. It should be relinquished in favor of “the public,” rather than of any particular individual as plaintiff (cf. Grantham and Rickett Reference Grantham and Rickett2003; Worthington Reference Worthington1999).

Reallocating Relinquished Goods

We tend to think of titles to property as being, first and foremost, things that are transferred from one person to another. That is our everyday experience of property law when we buy and sell houses and cars. But of course, behind all that transferring of titles stands a prior question.

Any theory of property based on the legitimate transfer of titles needs a theory concerning how legitimate titles are created in the first place. An analysis of just transfers as justice preserving only makes sense against the backdrop of some theory of just original acquisition. That is what gives rise to the “justice” that just transfers are preserving.

That theory of justice in original acquisition (whatever particular form it may take) tells us the terms on which we may legitimately take things out of the common pool of unowned things and call them our own. Suppose title to some object has been extinguished, owing to something that is seriously wrong in its original acquisition or in subsequent transfers. What then happens is that the object simply passes back into that pool of unowned things.Footnote ³² It is then available for allocation anew, according to whatever rules justly govern original acquisition and the distribution of titles to objects in the first place.Footnote ³³

Permitting Continuing Possession pro tem

Although what we subsequently do with the objects disgorged is governed by principles of justice in original acquisition (which is a branch of distributive justice), disgorgement itself is a matter of corrective justice. Disgorgement corrects grievous wrongs by extinguishing a person's title to an object, if that title was tainted anywhere along the line. The present possessors may not themselves have done anything wrong. But if a “clean title” is what is required for their current possession to be legitimate, and their title is unclean in some respect that continues to be relevant (i.e., no statute of limitation rightly applies), then they have no legitimate claim to the property.

Even if in principle they ought therefore to disgorge it, we may nonetheless leave it in their hands pro tem, until we get around to allocating it anew. Blackstone (Reference Blackstone1765, vol. 1, Introduction, sec. 4, 105) says something similar about property titles in newly conquered lands (his particular referent being England immediately after the Norman Conquest). Similarly in postcommunist societies, people were typically allowed to remain in residences they had been allocated by the old regime, at least until the new authorities got around to allocating them to someone else (e.g., in restitution of earlier seizures).Footnote ³⁴

Balancing Considerations

Certain considerations may favor leaving the property in the hands of the present possessors, certainly pro tem, and perhaps on further consideration for the long term.

One might be that the current holders themselves did no wrong in acquiring those goods. Their title is tainted, to be sure—but by acts performed by others long before they were born. Maybe that matters, sometimes or at the margins, even if in general there is as strong a case for disgorgement by innocent beneficiaries of others’ wrongdoing as there clearly is for restitution by beneficiaries of others’ innocent errors.

Another such consideration might be that the present possessors had no reason to suspect that their title was tainted, and their lives have become deeply entwined with the property during that period of unavoidable ignorance. Such people are akin to good faith purchasers of property that later turns out to be stolen (Levmore Reference Levmore1987) and may, once again, have some legitimate claim to continuing possession.

Even when tainted property would in principle be properly subject to a duty of disgorgement, such considerations might often lead us either (or both) (1) to leave it in the hands of present possessors or (2) to require them to disgorge it only partially or to pay money in lieu.

Forms of Disgorgement: In Kind or Cash in Lieu

The classic form of restitution is returning the object itself. But where “specific restoration” of the object itself is impossible or undesirable, payment of money in lieu can be required (Seavey and Scott Reference Seavey and Scott1937, §4). So too with disgorgement. The classic form would be relinquishing the object that is wrongly possessed. But that may be impossible or undesirable for some reason of policy or principle such as just discussed. Then, as with restitution, disgorgement may be done via cash in lieu.

Taking money rather than the object itself might seem odd, given that disgorgement is supposed to be a fundamentally object-centered remedy. But remember, it is to the value of the wrongfully misappropriated object that we look when tracing its subsequent substitutions, transformations, and mixings. In such cases, disgorgement amounts to surrendering that value, and thus surrender of cash in lieu is a wholly fitting remedy.

That payment might take various forms. It could be a one-off levy, a capital sum constituting disgorgement in full, or a series of installments designed eventually to accomplish the same.Footnote ³⁵ Or it could be an annual charge, constituting in effect “rent” for the proportion of people's holdings that are not properly “theirs” but rather are the public's (the present possessors’ title being tainted and hence extinguished).

Distributing the Proceeds of Disgorgement

How ought we then disperse the proceeds? Remember, it cannot be a matter of giving it back to those from whom it was taken or to their heirs—in the cases here, we lack information concerning their identities.

Let us focus first on the form of disgorgement referred to earlier as “in kind.” In these cases, the specific object that was wrongly misappropriated can be tracked down, and it is that very object that is to be disgorged. The present possessor's title to that object is tainted and therefore extinguished. The object passes back into the common pool of unowned things, to be distributed anew according to the same principles of justice as are operative for distributing anew anything else in our society.

Those principles are an essential subset of society's principles of distributive justice. No subsequent transfer of objects can be deemed distributively just without there being some principle of justice in original acquisition in the first place. (Without that, we cannot say who is entitled to transfer title to someone else.) As regards specific objects that are disgorged-in-kind, therefore, the connection between disgorgement and distributive justice is purely analytic. Allocating those objects anew can only be done according to society's principles of distributive justice, specifically those pertaining to justice in original acquisition.

That is not to say, of course, that the principles adopted for that purpose in any given society are the right ones from any external moral perspective. Here I am making merely an internalist point: whatever principle a society uses for allocating unowned objects from the common pool to particular people, that principle functions as (and is regarded from the inside as) that society's principle of distributive justice pertaining to original acquisition. And any society that adjudges the legitimacy of present holdings wholly or partly by reference to a history of legitimate transfers must logically have some such principle in place.

On the face of it, things might seem more complicated with respect to the other form of disgorgement: the payment of cash in lieu of handing over the wrongfully held object itself. Again, handing over the cash to those who were wronged or their successors is not an option (we lack information as to who they are). Still, there are all sorts of other things we might do with the money. We might use it to fund transfers to the needy. Alternatively, we might just put it into general fund revenues or use it to build bridges or cut taxes or pay off the national debt or wage wars or send humans to Mars.

It is tempting—but mistaken—to regard the first use and that first use alone as “using the money for distributively just purposes.” Justice in distribution is not merely a matter of putting money into the pockets of the poor, however important a part of distributive justice that is. Distributive justice, rightly understood, refers instead to “the right distribution of social resources” among all the uses to which those resources might properly be put.Footnote ³⁶ “Right” there is not to be equated with “rights” or confined to claimants with rights. It ranges across all legitimate purposes to which public resources might properly be committed.

When distributive justice is understood in that expansive way, it is once again analytically true that, by freeing up resources that are passed back to the public to be disbursed in whatever rightful ways, disgorgement necessarily frees up funds to be used for subsequent just distributions. That is not to say that the cash relinquished through disgorgement will necessarily be spent on improving the plight of the poor. That is simply too narrow a way of construing what constitutes justice in the distribution of public resources. That said, of course many of us believe (and hope that the societies in question will concur) that aiding those who are least well off is an important part of distributive justice and that they should have a strong claim on resources freed up through disgorgement.

Many will also believe that some element of corrective justice should enter into the decision to allocate those resources. Making compensation or restitution directly to the victims themselves or their successors is not possible because we lack information as to who they are. Still, corrective justice of a sort might be pursued through special provisions to assuage groups of people who are similar in some way to (or who feel an affinity with) those whose being wronged occasioned the disgorgement. Proceeds of the sale of disgorged art stolen by the Nazis from heirless Jews, for example, are put into a fund providing support to Holocaust survivors (O'Donnell Reference O'Donnell2011).

We might do something similar in the two cases I have been discussing throughout this article. We might require disgorgement of the value of edifices, estates, and fortunes amassed through slave labor or wrongful enclosures, typically in the form of cash reflecting the current unimproved value of the objects wrongfully taken. We might then use the disgorged resources to benefit blacks in the United States or the unemployed in the United Kingdom.

Perfect Partial Corrective Justice

Often enough, we have conclusive evidence that someone's present holdings are traceable to some grievous wrongdoing somewhere in the past. Recall the enclosed lands in Warwickshire and Brown's University Hall. Given such evidence, we could be justified in requiring those holdings to be disgorged and returned to the “common pool,” to be distributed anew according to our society's ordinary standards of what constitutes the “right distribution of social resources.” Insofar as present holdings are only partially traceable to grievous wrongdoings somewhere in the past, we would be justified in taxing away that part of their value, using the proceeds in similar fashion.

Such a program of disgorgement-and-just-distribution-anew constitutes not a rough approximation, but instead a program of “perfect partial corrective justice.” The justice is partial, insofar as it omits considerations that do indeed morally matter. Those omitted considerations should certainly be incorporated in an ideally just response to historical wrongdoing. But if the informational requirements for implementing that ideal are not met, so be it. Let us focus on such aspects of corrective justice that we can implement.

Although only “partial” in that respect, disgorgement-and-just-distribution-anew provides justice that is “perfect” at least so far as it goes. Where we have conclusive evidence tracing some object or value to the fruits of wrongdoing, title in it is tainted and hence properly extinguished. It is perfectly just, in corrective justice terms, to require that the present possessors relinquish it (or give cash in lieu), putting that object back into the “common pool.” And then it is perfectly just, in distributive justice terms, to distribute anew the contents of that common pool of unowned things according to whatever principles we have for “the right distribution of social resources.”

Disgorgement, Epistemic Modesty, and Redistributive Taxation

A rule of disgorgement-and-just-distribution-anew can serve a socially important purpose, even where we do not have conclusive evidence connecting historical wrongdoing to present holdings, such as would be required to implement that rule directly.

For a start, that rule puts people on notice that, if their title turns out to be seriously unclean (tainted by grievous historical wrongdoings to which no statute of limitation should apply), then their current holdings can legitimately be taken away from them. Most people have reason to suspect that at least some of their holdings were quite probably tainted in some serious way, when they go back far enough. Furthermore, it is not only inherited physical property that might be tainted in this way. The knowledge and know-how that form the core of “human capital” transmitted from one generation to the next through education and training might likewise have been initially acquired or subsequently transmitted through some highly discreditable processes somewhere along the line.

Knowing (or even just reasonably suspecting) that grievous wrongdoings in the past may have tainted their present title in their property and that they could rightfully be required to disgorge it in consequence, people should know that they have no very strong complaint against having some (perhaps a fair bit) of their property taxed away for some just public purposes. It may well be that it is not really “theirs” anyway. They may well just hold it on sufferance, as pro tem possessors. Appropriate epistemic modesty about the legitimacy of their title ought negatively at least to blunt people's complaints at having some of “their” property taken from them in taxes.

Indeed, we might positively justify redistributive taxation as a reasonable approximation to what disgorgement would require if only we could collect the requisite evidence.Footnote ³⁷ When Nozick contemplated such a strategy for approximating the requirements of full-bore compensatory justice, he concluded that the assumptions required were just too strong and the approximations therefore simply too rough.

This characterization is not correct when thinking in terms of disgorgement instead of compensation. For a redistributive tax to be justified as a good approximation to disgorgement, the only assumption that is required is that much of what has been passed down to us has quite probably been tainted by some pretty grievous wrongdoing somewhere along the line. Who can seriously doubt that?