Cosmopolitanism, Self-Determination and Territory

Justice with Borders

Oliviero Angeli

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137004956
• Topic: Social Sciences
• Subtopic: Human Geography
• Index: Social Sciences

Territorial rights are often perceived to create barriers and discriminate against the poor. This study challenges that notion by re-examining the cosmopolitan understanding of territory. It addresses issues from the right to vote, the right to exclude others to the legitimacy of territorial boundaries and the exploitation of natural resources.

1

Genealogies of the Territorial State

1.1 Introduction

It is now commonly accepted that states enjoy a number of rights over their territory, and most theorists assume that this is inevitably so. In early modern Europe (not to mention other continents), however, territorial sovereignty was not as self-evident as it is today. The territorial state still had its own peculiar rivals, such as the remnants of the late feudal system, with its loosening tissue of personal ties, the Church and the Holy Roman Empire, which both lacked the sense of territoriality that characterized the emerging Westphalian state system (cf. Spruyt, 1994). Under these circumstances it is easy to see that Hugo Grotius, the so-called father of International Law, and his immediate successors could not take for granted what is now seldom questioned, namely the general legitimacy of the state’s rights over its territory. These rights had first to be thought, conceptualized and justified in light of alternative ideas before they could be taken for granted. And yet it is precisely this lack of obviousness that makes early modern political and legal theory so interesting.

Early modern conceptions of territorial rights address three major problems. For simplicity, I shall call them, respectively, the necessity problem, the particularity problem and the moral strength problem. The necessity problem relates to the general moral relevance of territorial rights as rights that accrue to states as states. This amounts to answering the very question of why states should be entitled to territorial rights. The particularity problem challenges political and legal theorists to determine the proper location of territorial rights in a world with limited space and resources. It therefore does not concern the legitimacy of territorial rights as such, but the claim of a state to this or that territory. Finally, the moral strength problem is concerned with determining the moral scope of territorial rights. This involves assessing the moral status of territorial rights vis-à-vis other rights and interests, whether individual or collective. For instance, do territorial rights entail a right to exclude others from entering the territory or benefiting from its natural resources?

Early modern and Enlightenment philosophers such as Grotius, John Locke and Immanuel Kant address these three challenges in a peculiar manner. In many respects, their argument takes the form of a genealogy: a kind of narrative that starts by some fairly basic assumptions about the human condition and shows how the territorial state could have emerged from that condition.¹ What is the benefit of drawing on genealogies? If anything, genealogies expand our knowledge on the functionality of territorial states.² What genealogies do in effect is to give a function to territorial states by making plausible how they might have come about if people were rational enough to follow their own basic interests. In so doing, genealogies purport to show that territorial states are not as morally contingent as one might think. Of course, not every genealogy attains this goal. Genealogies need to be plausible in the sense that the events imagined could have occurred in fact. To this end, it is essential to make sure that (1) the interests by which people are guided in a genealogy are sufficiently general (i.e., everyone shares them) and that (2) the decisions taken are rational in the sense that they support the most effective attainment of these interests.

Genealogies of the territorial state do more than fit events and acts together in convincing diachronic linkages. Instead of telling a story about how people fit into or challenge territorial states, (early) modern genealogies of the territorial state take a step back and look at the very process by which individuals started organizing themselves into territorially defined collectivities and distinguishing movers (migrants) from nonmovers (residents). The starting point is therefore a world with no territorial states and no land ownership. This is inevitably a situation in which the earth belongs to mankind collectively, either in the sense that it belonged to all jointly (positive community of goods) or that it belonged to no one (negative community of goods). Either way, the challenge is to get from this situation to territorially separated possessions. Meeting this challenge amounts to solving the first above-mentioned problem, that is, the necessity problem.

Before we look at how Grotius, Locke and Kant addressed this problem, we must identify the reasons underlying the idea of common ownership of the world. Why is it important to imagine a world without territorial states and landownership and move therefrom to the acquisition of private property and territorial rights? There are two answers, one easy, the other more complex. The easy one is that to understand the importance of something, it is often a good strategy to imagine what things would be like without it. A natural starting point for a genealogy of the territorial state is therefore a world with no territorial states and no land ownership. The more difficult answer is that common ownership of the world is a condition of equality – and equality is the default position of (early) modern genealogies. Natural law theorists regard the acquisition or privatization of land and goods as a prima facie departure from a commitment to human equality. I say ‘prima facie’, because what Grotius, Locke and Kant purport to show is precisely that territorial rights and property can be reconciled with the ideal of equality. Thus, although genealogies of the territorial state start by the assumption that individuals, no matter when and where they are born, have equal claims to the earth and its fruits, this does not mean that land and resources ought to be distributed in equal shares. Rather it means that any departure from the default position must be justified on the basis of arguments that others might reasonably be expected to accept in a situation in which their interests too are potentially at stake. It comes therefore not as a surprise that territorial rights are seen as derivative from natural or original equality.

The present chapter addresses the three justificatory challenges of territorial rights – the necessity problem, the particularity problem and the moral strength problem – on the basis of three genealogies of the territorial state – the Grotian, the Lockean and the Kantian. The order in which I examine these three genealogies is meant to highlight a conceptual evolution in thinking about territorial rights. While for Grotius it is the political community that creates its territory, with Locke and, especially, with Kant it is the other way round: the territory creates the political community. As I will show in the final part of this chapter, Kant provides the most rigorous and compelling justification of the state’s rights over its territory in that he successfully tackles the problems under which both Grotius’ and Locke’s conceptions suffer. In this final section my goal will be to show that the Kantian conception of territorial rights improves on previous models in two significant respects: First, Kant overcomes the pitfalls of historical entitlements by developing an entirely forward-looking perspective aimed at guaranteeing the effective capacity of states to be self-determining. Second, Kant, unlike Locke, looks at the relationship between states and ‘their’ territories not primarily as a relationship between rights bearers (states) and rights objects (territories), but as a relationship between rights bearers (states) and rights respondents (other states and aliens) with regard to the right object (territory). In other words, the states’ rights over their territories cannot consist of a unilateral bond between the state and the object of its right (i.e., the territory), but must consist in a multilateral agreement among all states, which could otherwise control and use the object of that right. Since, for Kant, the idea of rights pertains to the form of relationships between moral agents (whether individual or plural), such situations of dramatic inequality could not, unlike Grotius and Locke, be dealt with in terms of ‘rights of necessity’.

Two final remarks are in order, one conceptual and the other methodological. First, the authors analyzed in this chapter do not make a clear conceptual distinction between rights of jurisdiction over people within a particular territory (‘territorial rights’) and rights over territory and resources (‘rights over territory’). This is unfortunate for the reasons that will emerge in the next chapter. On the other hand, while conceptually absent, the distinction between the above categories of rights is largely implicit to Grotius, Locke and Kant. As a consequence, it will be important to distinguish different uses of territorial rights depending on whether they refer to jurisdictional rights over people within a particular territory or property-like rights over territory and resources.

Second, although the material in this chapter is mainly historical, its task is not a historical one. My interest throughout is in the substantial theses that can be extracted from the material under consideration. For this reason I might be charged of historical inaccuracy when using the term ‘Kantian’ to describe a legacy that can be traced back to Kant’s writings. However, the Kantian model I wish to put forward in the present chapter is Kantian only in the sense of sufficiently resembling Kant’s philosophy of law in some fundamental respects (cf. Rawls 1980: 517). In so doing, this chapter is not intended as an exercise in exegesis. It takes Kant’s discussion of territorial rights as a starting point for approaching various problems regarding the justification of territorial rights in accordance with the general principles of Kant’s legal and political philosophy.

1.2 The Grotian genealogy of the territorial state

1.2.1 Property rights between natural and positive law

The starting point of Grotius’ genealogy of the territorial state is easy to ascertain: for Grotius both natural law and natural rights have their origin in human sociability. Grotius believes that people seek society with others due to their natural rationality, which distinguishes human beings from beasts. In his view, however, care must be taken not to reduce the meaning of rationality to considerations of mere expediency – a fallacy that he attributes to the skeptics and in particular to Carneades (cf. Grotius, 2005: 93). Grotius acknowledges that rationality and expediency are often in harmony, but he stresses that the rational feature of sociability extends beyond expediency. Even in the absence of any needs, human beings would still seek the society of others and build up communities, which regulate their relations according to basic norms of natural law.

To the sphere of natural law belong, according to Grotius, a number of norms: ‘the Abstaining from that which is another’s, and the Restitution of what we have of another’s, or of the Profit we have made by it, the Obligation of fulfilling Promises, the Reparation of a Damage done through our own Default, and the Merit of Punishment among Men’ (2005: 86). This passage seems to suggest that the right to property flows directly from natural law. While this is true, it can also be misleading. For, according to Grotius, there are two routes by which a given proposition can be justified as part of natural law: the a priori method and the a posteriori method. While the a priori method deduces principles of natural law directly from the rational and social nature of human beings, the a posteriori method appeals to the testimonies of philosophers and historians.

Now that any Thing is or is not by the Law of Nature, is generally proved either à priori, that is, by Arguments drawn from the very Nature of the Thing; or à posteriori, that is, by Reasons taken from something external. The former Way of Reasoning is more subtle and abstracted; the latter more popular. The Proof by the former is by shewing the necessary Fitness or Unfitness of any Thing, with a reasonable and sociable Nature. But the Proof by the latter is, when we cannot with absolute Certainty, yet with very great Probability, conclude that to be by the Law of Nature, which is generally believed to be so by all, or at least, the most civilized, Nations. For, an universal Effect requires an universal Cause. And there cannot well be any other Cause assigned for this general Opinion, than what is called Common Sense. (2005: 159)

Readers tend to associate Grotius’ conception of property right with the a posteriori method due to his extensive use of quotations from classical Greek and Latin authors.³ Stephen Buckle, for instance, claims that it was the a posteriori method that ‘most distinguished Grotius’ approach’ (1991: 5). Buckle, however, takes pains to point out that the two methods are not disentangled. In his view, the a posteriori method does not consist in collecting historical evidence, and the a priori method is not just about abstract reasoning on natural law (cf. ibid.: 51). Instead, Grotius seems to privilege a mixed methodology: the testimonies of ancient authors provide us with the perception that the forces at work in crucial historical events are not arbitrary or accidental. There is a sense of necessity, of rational necessity, in the way decisions of historical significance arise out of situations.⁴ Grotius tends to portray crucial decisions in history as driven by the necessity to react appropriately to situational occurrences rather than by the contingent choices of one or more powerful individuals. Situational necessity dictates the rational action to be taken. Thus, as for property rights, the question to be asked is not whether property is legitimate per se, but whether property can be seen as a rational response to specific historical circumstances. Let us therefore take a closer look at these circumstances.

As most (early) modern philosophers Grotius starts with the assumption that God has given dominion over the earth and its fruits to mankind in general – not to a particular country, race, or people. What does this mean concretely? That everyone could enjoy possession and use of it? Or, rather, that no one had an entitlement to any part of it without prior agreement? An answer might be provided by Grotius’ reference to Cicero’s example of a theater. He writes, ‘Tho’ the Theatre is common for any Body that comes, yet the Place that every one sits in is properly his own” (2005: 421; emphasis in original). What Cicero meant to say through his example is that although the theater itself is open to everyone, all theatergoers have the right to use the seats they occupy. This example may lead one to believe that in a situation of common ownership everyone has the right to use land and movable goods without a right to exclude other co-owners. But this is only partially true. For, in the process of using an indivisible good (like a seat in a theater) people have the right to exclude others.⁵ This use-right thus correlates with a negative duty on the part of others to abstain from interfering with it, but it is not a property right in the more extensive sense of the term. A complete property right extends beyond use in the sense that if a person who occupies a seat in the theater moves, others cannot freely move in. Grotian use-rights (or usufructuary rights), by contrast, last so long as their owner makes continued use of the object.

Grotius’ idealized picture of a ‘pure and innocent State of Life’ in the golden age of the original community of goods serves mainly as a prelude to a narrative of the human fall from innocence to ambition, from plenty to scarcity, and finally from common ownership to private property. This narrative has a seemingly paradoxical, twofold purpose: it aims at illustrating that the establishment of private property is not only forged by vices ‘but also designed as a stronghold against these vices’ (Stumpf, 2006: 172). In this narrative, much of the burden of proof is carried by the claim that in a situation of rising productivity and population density, vices (like ambition and vanity) led to a ‘Defect of Equity and Love, whereby a just Equality would not have been observed, either in their Labour, or in the Consumption of their Fruits and Revenues’ (Grotius, 2005: 426).

Clearly, the underlying assumption here is that private property became necessary as fundamental changes occurred: human and moral changes, on the one hand, and economic and demographic changes, on the other hand. One of these changes alone would have affected human relations, but it is the sum of these changes that results in permanently altering the status of property rights in land and goods. It is here that the ‘logic of situation’ intervenes: in circumstances in which resources are increasingly scarce and human relations are suffused with anxiety and mistrust, human beings have little choice but to abandon the original condition of common ownership and introduce a system of private property rights. Anything else would be in contradiction to the social and rational natur...

Table of contents

• Cover
• Title
• Introduction
• 1  Genealogies of the Territorial State
• 2  Territorial Rights and Rights over Territory
• 3  Territorial Inclusion and Its Boundaries
• 4  Territorial Exclusion and Its Boundaries
• 5  Territory and Natural Resources
• Notes
• Bibliography
• Index