The Rhodes Scholarship funds students around the world to attend Oxford University. Its founder, Cecil John Rhodes, held ardently pro-imperialist and pro-colonialist views; he derived his significant riches through colonialism, a portion of which was left to provide for the scholarship. Is it ethical for a Rhodes Scholar to keep the lump sum they receive from the foundation?
Rhodes Scholars are part of a group that has come under increasing scrutiny in discussions over historical injustice: beneficiaries. Benefiting from injustice has long been thought to ground some responsibilities of repairing the original injustice. Many explanations have been offered for this intuition, but here, I want to focus on the disgorgement account. Against conventional wisdom, I argue that beneficiaries of injustices should, under certain, non-trivial circumstances, be permitted and required, to not give up (disgorge) their benefits – on the grounds that such disgorgement induces substantial harms and compromises the project of reparative justice at large. This is not to say, of course, that disgorgement is never required, but merely that the extent to which it is obligatory would turn on the circumstances in which the disgorgement question is pressed.
We start with applying the Disgorgement Principle to the case of the Rhodes Scholarship, before establishing why it is both a) permissible and b) obligatory for individuals to retain the goods and benefits arising from injustice. Through this discussion, we arrive at a Revised Disgorgement Principle. We conclude by addressing three possible objections.
The Disgorgement Principle (DP) posits that it’s unethical for a Rhodes Scholar to spend the lump sum they receive:
X should release their effective possession of gains G derived from injustice I.
Two clarifications are in order. First, we should oppose a state of affairs where individuals derive benefits from unjust processes, even if the victims of these processes cannot be identified. Had it not been for Rhodes’ colonialist exploits, he would not have accrued the riches that these scholars now enjoy.
Second, individuals can be said to have gained through unjust enrichment even if they have not, overall, benefited from the enrichment. Just as a thief may have suffered from stealing an artefact, it remains the moral case that it should be disgorged, even if its continued possession does not yield overall benefits.
This answer holds in abstract, yet when considering non-ideal-theoretical factors, such as political, psychosocial, and resource constraints, we may conclude that the scholar should not, after all, disgorge.
Disgorgement theories never account for what happens post-disgorgement: who is to receive, process, or redistribute the goods? In abstract, disgorgement removes an unjustly acquired item from continued possession; yet in practice, disgorgement quasi-necessarily –in many instances – yields significant harms. I want to emphasise that quasi-necessity here tracks not the absolute claim, e.g. that disgorgement – across all possible worlds – induces such harms. Instead, it is the claim that there is a high probability that the move towards disgorgement does produce such harms. Consider, for instance, a post-colonial society in which an autocrat weaponizes their re-appropriation of stolen, disgorged artefacts to shore up nationalistic support for repression; or where a land-owner living under an authoritarian state, disgorges an improperly acquired land-plot, which ends up funding the state’s unjust war efforts.
Hence perhaps DP*:
X should release their effective possession of G of I, unless disgorgement induces quasi-necessary harms.
This principle captures the prudential sentiments cautioning against hasty disgorgement, whilst justifying disgorgement at large.
A further layer to the problem materializes: we tend to imagine possession as a bi-predicate relation: a Rhodes Scholar possesses their allocated scholarship. Yet possession is in fact tri-predicate – the Scholar possesses their scholarship, in place of/against other agents (which would have been granted the funding), e.g. another scholar. Disgorgement entails not only renouncing the possession of the item, but also the effective ceding of possessive rights to another agent. In these cases, disgorgement entails transferring the released title into the hands of a worse possessor X* and we should reject that.
It is hence worth our expanding the notion of quasi-harm to encompass more general instances of worse possessors – that is, if disgorgement ends up transferring a particular title to a worse possessor, such disgorgement is thus impermissible.
What makes a worse possessor? Worseness here tracks various covering values: a) procedural injustice – that as a result of X*’s having acquired G, X* passes G on to future generations in ways that incur even more procedural injustice, as compared with what would have occurred had G remained with X in the first place; b) downstream injustice – that X*’s possession of G induces further injustices concerning G, as compared with a counterfactual where X possesses G; c) instrumentalist and quasi-necessary harms – that X*’s possession of G brings about significantly worse outcomes attributable to X. Point c) coheres with the point above, whilst a) and b) are more expansive in referring to instances where there may not be harms on net, but non-consequentialist injustices nevertheless flowing on from X* coming into possession of G.
X thus has permission to non-disgorge, given DP**:
X should release their effective possession over G of I, unless disgorgement induces quasi-necessary harms or transfers G to a worse possessor.
The pushback may be: why should worseness of the would-be possessors always trump the injustice in evaluating the ethics of the continued possession of the property? Perhaps the injustice of possession is immune to consequentialist evaluation – i.e. X is not acting wrongly because X induces a worse state-of-affairs (in terms of harms or benefits), but because X violates a side constraint against possessing G.
In partial concession, I suggest that the quasi-necessary harms must outweigh the harms of non-disgorgement.
Term this principle DP***:
X should release their effective possession over G of I, unless disgorgement induces quasi-necessary harms that outweigh harms of non-disgorgement, or transfers G to a worse possessor.
Yet, I fail to see how possession of G violates any side constraints – injustice in holdings is weighty, yet does not seemingly cross “moral side constraints upon what we may do [which] reflect the fact of our separate existences.” Furthermore, if X* is a worse possessor than X, this alone should suffice in disqualifying disgorgement: contra idealization, X’s disgorgement of G is functionally equivalent to X’s transferring G to X*, especially if X could reasonably foresee X*’s possession of G. If the justificatory basis for disgorgement is the injustice of G being possessed by some wrongful possessor, presumably this also entails X’s preventing worse injustices along similar lines. Provided that X is aware of other agents X*, X**, or X***’s possible possession of G and of these candidates’ worseness, it is well within X’s rights to retain G.
Perhaps DP*** is too weak: it struggles to ground the bolder claim, that the Rhodes Scholar could be obligated to not disgorge their scholarship.
In defence of this stronger claim, take Butt’s BPP for starters – beneficiaries of injustices develop reparative responsibilities in relation to the original victims, because their refusal to repair for the wrongs renders them moral slimes and inconsistent with their condemnation of the injustices – to which they are obliged.
Discharging these reparative responsibilities, qua Stemplowska and Lu, could take multiple forms, e.g.: a) satisfying the posthumous preferences of the original victims, b) issuing or facilitating apologies and non-alienating reconciliation, or c) benefiting the apparent heirs of the victims, who would have been better off had the injustice not occurred. The continued possession of the tainted property can be instrumental in ensuring that such prerogatives are discharged. Hence, agents can be obliged to not disgorge. These prerogatives also apply to non-beneficiaries – e.g. prospective Rhodes applicants, or millionaires who are considering bidding for stolen Chinese imperial statues.
We hence arrive at a Revised DP (RDP):
DP***, and X can be obliged to not disgorge G, if required by reparative considerations.
Objection #1: Prudential Reasons
The first objection to RDP is that there exist prudential reasons for disgorgement, given that non-disgorgement i) induces, ii) directly or iii) indirectly causes – through failure of compensating the victim – further injustices. For i), consider how non-disgorgement may reinforce unjust structures through establishing a sustained demand and normative legitimacy in these structures. For ii), note, for beneficiaries to continually make use of fruits derived at victims’ expense renders the latter and associates subjectively alienated – it is deeply offensive to think that gains made through one’s plights are retained. Finally, iii) holds as victims, or their significant others, are left worse-off by the failure on part of the beneficiary to compensate.
We cannot exhaustively discuss these factors, but if non-disgorgement is inherently unjust, we may be obliged to disgorge even despite the salient considerations raised above.
In response, note that these harms are both defeasible (if weighed against countervailing considerations), and symmetric – there are also prudential harms associated with disgorgement. The prudential harms arising from non-disgorgement ought to be weighed against the harms of disgorgement – an approach granting decision-makers and beneficiaries the necessary greater flexibility in determining if disgorgement is required, all-things-considered.
Suppose the Rhodes Scholar puts their funds to reparative use. This may still not completely eliminate their duties to repair those who are demonstrably deprived of their rightful access to the funds. Hence, even if non-disgorgement is required, all-things-considered, RDP can be conjoined with alternative principles – e.g. Perpetrator Pays Principle, and Sher’s Secondary Harms Principle in supporting secondary prerogatives for these agents, as perpetrators of further injustices, to repair for these secondary wrongs.
Objection #2: Value Incommensurability
RDP seemingly assumes that reparative prerogatives and prerogatives of eliminating unjust enrichment are commensurable – we may be wary of accepting this. So long as Rhodes Scholars are campaigning to redress colonial or historical injustices using their sponsorships, they ostensibly mitigate their responsibilities to disgorge their funding, by effectively repairing victims of colonialism through their studies.
This view seems to yield counterintuitive implications in instances where the reparative project is insufficiently pertinent to the injustice committed – consider a thief who steals from a poor family, then donates the stolen funds to a general fund set up for victims of theft.
It may be supererogatory of them to repair victims-at-large, yet this does not eliminate their particular reparative onus towards the poor family: reparative and holdings justice are incommensurable. Such incommensurability is worrying, for if true, it would undermine the reparations-grounded case against disgorgement.
To this, consider responses within incommensurability literature: perhaps, such incommensurability could be resolved through careful deliberation: through reasoned reflection, we come to weigh duties of reparation against disgorgement. Even if such values do not commensurate, they could be rendered coherent to allow for comparative evaluation under a framework of practical action.
Furthermore, I am skeptical of how incommensurable these two values are – the case for disgorgement invokes the wrongness of unjust enrichment, i.e. possessing titles not acquired through just procedures. Reparations seek to compensate victims of (procedural) injustice. These are two sides of the same coin of rectifying injustice, albeit with divergent complementary principles and prescriptions.
Critics may object: that there is an underlying commonality (injustice redress) does not make the two values commensurable with each other.
Yet the strict antithesis to this is blatantly counterintuitive – are we to accept that reparative prerogatives ought to never constrain disgorgement prerogatives, because of their purported incommensurability? This seems intuitively absurd; it also does not apply to disgorgement – for what if reparation lexically precedes disgorgement, despite their incommensurability? Why do we treat disgorgement as prior to reparation?
Objection #3: Lexical Priority
This leads us to the objection, that disgorgement prerogatives are indeed lexically prior to aforementioned reasons against disgorgement. If this could be established, then disgorgement should always be prioritized.
Consider Divestment – perhaps a university’s shares in a company with a record of environmental destruction offers leverage to reduce the destruction in the long-run; yet divestment still seems the ‘right’ thing to do, given the wrongness of benefiting from these corporations’ practices.
I disagree. In both Divestment and Rhodes Scholarship, the case for disgorgement lacks the kind of overriding intuitive urgency that is needed to justify ostensible lexical priority. Consider where the scholar could wield their resources to combat global and historical injustices; where the scholarship money, if not taken up, would have flowed to undesirable ends. It is unclear if scholars should certainly disgorge their funding.
Similarly, if the university’s shares are snapped up by nefarious oil companies, we may find that outcome worse and grounds for non-divestment. Of course, we can still prioritize disgorgement-centric reasons, not because disgorgement inherently trumps competing considerations, but contingent weighing metrics. Indeed, these various considerations should be incorporated into the disgorgement account – as opposed to treated as external constraints.
In conclusion, injustices’ beneficiaries should not always disgorge; indeed, it is at times permissible and obligatory for them to non-disgorge. In adopting RDP, we bolster the applicability and versatility of DP.
Brian Wong is a Rhodes Scholar at the University of Oxford and founder of the Oxford Political Review.
This piece previously appeared in our 7th print issue, “Looking South.” You can read the full issue here: https://issuu.com/oxfordpoliticalreview/docs/opr_issue_7_final.