Reparations for slavery came to the forefront of the French political scene at the turn of the twenty-first century. It was between 1998 and 2001 that reparations were constructed as what philosopher Johann Michel calls a “public problem” (Michel 2017). The year 1998—the year of the official commemorations of the 150th anniversary of the second (and final) abolition of slavery—marked a turning point in the ways in which both the state and civil society politicized the history of colonial slavery (Bessone and Cottias 2021). Civil society associations, notably the one that would come to be known as CM 98, seized the moment to make reparations happen in the public space.
This first moment resulted in the adoption, on May 10, 2001, of the so-called Taubira Law, which recognizes the slave trade and slavery as crimes against humanity. In its initial wording, the law contained reparative provisions linked to the criminalization of colonial slavery. However, in its unanimously adopted final version, it was denied any normative and repressive scope and has been repeatedly interpreted as a strictly declarative law. It neither explicitly provides nor allows for reparations for enslavement; it does not easily open up any reparatory right or entitlement. Rather, it has been interpreted as belonging, almost exclusively, in the field of “memory laws” (Bertrand 2006; Chivallon 2012; Cottias 2006).
On the judicial side, there were a few attempts to use the Taubira Law in private law procedures. According to the criteria of French tort law, the right to reparation requires the absence of prescription, the attested existence of reparable harm or damage and the identification of a causal relation between the harm and the event giving rise to it because of the historical and structural nature of the injustice to repair. All three conditions are extremely complex in the case of reparations for the colonial slave trade and slavery. Unsurprisingly, in the two most important cases to date (MIR Martinique, CMDP, and physical persons v. French state; MIR Guadeloupe and CIPN v. French state), the judges (from tribunals of first instance to appeals courts and even the Cour de Cassation, France’s supreme court for private law) rejected the claims on the legal grounds of nonretroactivity and statute of limitation, and reaffirmed that the Taubira Law did not create any right to reparation.
While the Martinique case has been brought before the European Court of Human Rights, which declared it admissible in February 2020, there is little hope that judiciary procedures can handle reparations in the case of the slave trade and slavery. The passage of time itself poses an obstacle to legal redress: it makes it difficult to establish a sufficiently direct causal chain between the crimes of the past and the present situation of the claimants, which is needed to determine the identity of the rightful beneficiaries and to designate those who may hold remedial responsibility. And tort law cannot address structural injustices because these are situations in which victims and perpetrators are not always easily disentangled; the harm comes from the ordinary functioning of institutions, from norms and material conditions rather than from wrongful individual conduct.
As a memory law, the Taubira Law was quickly enrolled into the “memory wars” that have been raging in the French public sphere since the late 1990s (Stora 2007). Such wars have been all the more acute as they question the coherence and moral legitimacy of French national identity. The law was perceived as—morally if not legally—grounding the claims of reparations for slavery and these were seen as a form of divisive work by self-proclaimed “memory entrepreneurs” (Savarese 2014, 36), claiming to be representative of ethnic minorities but actually trying to create these communities by aggregating otherwise heterogeneous individuals through deliberately produced shared memorial narratives of victimization. Defending particular interests instead of the common good, claims for reparations were perceived as destructive of national solidarity and producing a communitarian fracture (Blanchard, Bancel, and Lemaire 2006). So, while some initiatives did take place, the exclusively memorial anchoring of reparations has contributed to undermining their significance and exacerbating misunderstandings.
This is why I suggest that it would probably be more effective and coherent with the national conversation-triggering and awareness-rising objectives of reparations claims to consider them within a transitional, “transformative justice” approach (Gready and Robins 2018). Reparations are not best conceived as part of the compensatory frame of corrective justice, nor as strictly backward-looking endeavors in a restorative justice perspective; rather, they are best considered as part of a transformative, reconstructive frame in a civic justice perspective (de Greiff 2006). Reparations are a political matter, rather than a strictly judicial or memorial one. In this view, what needs to be repaired by sociopolitical measures are valuable social relations between individuals and shared political trust for our common institutions, which are indispensable to build a common narrative. Such measures go from the public funding and official support for continued knowledge production and teaching of France’s colonial past, to preferential treatment policies targeting systematically subordinated racialized populations.
Reparations are not limited to correcting the lasting economic effects of past crimes (economic exploitation, unjust enrichment). Rather, they aim at transforming for the future structures that produce systemic relations of inequality along several dimensions: political domination, cultural marginalization, psychological alienation, racial discrimination, and stigmatization. In Leif Wenar’s words, “the function of reparations . . . is to enable a new political community” (2006, 43). Such an understanding of reparations in transformative terms requires a paradigm shift: we, the French people, have to admit that our “established democracy” is not a “post-transitional utopia” (Winter 2013, 227) but rather a “deeply divided” (Guelke 2012) and hierarchical society, where the socio-racial order inherited from our slave and colonial past is still meaningful and significant, where racial divisions also have political salience, and where what matters is achieving equality.
Bertrand, Romain. 2006. Mémoires d’empire. La controverse autour du “fait colonial.” Broissieux: Éditions du Croquant.
Bessone, Magali, Myriam Cottias, eds. 2021. Lexique des Réparations de l’esclavage. Paris : CIRESC/Karthala.
Blanchard, Pascal, Nicolas Bancel, and Sandrine Lemaire, eds. 2006. La Fracture coloniale: la société française au prisme de l’héritage colonial. Paris: La Découverte.
Chivallon, Christine. 2012. L’esclavage, du souvenir à la mémoire: Contribution à une anthropologie de la Caraïbe. Paris: Karthala.
Cottias, Myriam. 2006. “Sur l’histoire et la mémoire de l’esclavage.” Cités no. 25, 178–80.
De Greiff, Pablo, ed. 2006. The Handbook of Reparations. Oxford: Oxford University Press.
Gready, Paul, and Simon Robins. 2018. From Transitional to Transformative Justice. Cambridge: Cambridge University Press.
Guelke, Adrian. 2012. Politics in Deeply Divided Societies. Cambridge: Polity Press.
Michel, Johann. 2017. “Esclavage et reparations: Constructions d’un problème public.” Politique africaine 2 (146):143–64.
Savarese, Eric. 2014. La rencontre postcoloniale. Bellecombes-en-Bauge: Éditions du Croquant.
Stora, Benjamin. 2007. La guerre des mémoires: La France face à son passé colonial. La Tour d’Aigues: Editions de l’Aube.
Wenar, Leif. 2006. “Reparations for the Future.” Journal of Social Philosophy 37 (3): 396–405.
Winter, Stephen. 2013. “Towards a Unified Theory of Transitional Justice.” International Journal of Transitional Justice 7 (2): 224–44.