No right to unilaterally claim your territory: on the consistency of Kantian statism

Abstract

The paper examines the consistency of recent Kantian justifications of state authority through reflection on the normative implications of states’ territorial nature. I claim that their conceptual structure leaves these accounts unable to close the justificatory gap that emerges at the transition from legitimate authority simpliciter, to legitimate state authority. None of the strategies Kantian statists have come up with in order to solve this problem – based on the proximity, occupancy and permissive principles – provides the needed grounds on which to carve up the earth’s surface into jurisdictional domains. Yet, I conclude that this does not require Kantians to cede statist grounds altogether but to take a distinctly ‘global perspective’ on states.

Keywords:

• authority
• legitimacy
• Kant
• property
• territory

Acknowledgements

Earlier versions of this paper were presented at the LSE political philosophy workshop, graduate conferences at Sciences Po Paris and Harvard University, as well as the ECPR General Conference in Montreal. I am grateful to the audiences for their questions, as well as to Thomas Christiano, Katrin Flikschuh, Louis-Philippe Hodgson, David Miller, Peter Niesen, Arthur Ripstein, Cord Schmelzle, Annie Stilz, Laura Valentini and Lea Ypi for providing helpful feedback at different stages. I would also like to thank two anonymous reviewers of this journal for their insightful comments that helped me to improve the paper enormously.

Notes

1. Kantian accounts of territorial rights are most explicitly defended by Stilz (2009, 2011a) and Ypi (2014). A good overview of positions defended in the wider debate is provided by Ypi (2013a).

2. See for instance Bohman and Lutz-Bachmann (1997) and Follesdal and Maliks (2013).

3. The former position has been advocated e.g. by Pogge (2011), the latter by Carens (2013, pp. 270–272) and recently Sandelind (2015).

4. An anonymous reviewer has suggested to me that if a state involuntarily lost control over its resources or borders, e.g. through an external imposition of forces it cannot resist, it would also have lost central elements of its sovereignty such that we might want to question its ongoing statehood. I take it, however, that in the depicted case, the loss of control over resources and borders only expresses (or is indicative of) a prior independent loss of sovereignty that makes the former possible in the first place.

5. While some authors (e.g. Ladenson 1980) want to separate the notions of legitimacy and authority (reducing legitimacy to a mere permission to coerce), I stipulate an understanding of the term as containing an explicitly moral power to change the normative situation of those subject to it (for instance by imposing obligations or conferring rights on them).

6. There is certainly a difference in degree of subjection between citizen and non-citizen residents, as there are a number of (‘civic’) rights and obligations that only accrue to the former.

7. Throughout this paper, I will be using ‘duty’ and ‘obligation’ interchangeably.

8. I am grateful to an anonymous reviewer for urging me to clarify this. The ‘particularity problem’ is also discussed by various authors in a symposium on territorial rights in International Theory 1(6), 2014.

9. Simmons (2013), for instance, has recently reframed his ‘particularity problem’ known from earlier work on political authority as a ‘boundary problem’ concerned with territorial jurisdiction.

10. In order to draw this analogy, I do not intend to deny the important difference between first-order rights over objects (including entitlements to use, transfer and exclude others) and second-order powers to make the rules that define these rights (and to interpret and enforce those rules over the territory in which the object is contained), which is well rehearsed in the literature (Stilz 2009, pp. 194–198, Miller 2011). I am just capitalising on a specific similarity between two kinds of rights over objects that each unilaterally imposes duties on third parties.

11. Thanks to Anna Stilz for this example.

12. I am not claiming to provide an accurate reconstruction of Locke’s own account here. Locke himself famously stipulated a right to own property grounded in God’s command to make use of the earth in order to preserve mankind (Locke 1988, II, Ch. 5).

13. A similar story could be told about nationalist accounts of territory (Meisels 2005, Miller 2012): they focus on the ways in which a nation can particularise, through entanglement with a specific piece of land, what they take to be a general right of nations to self-determine (through a territorial political entity).

14. As one reviewer helpfully points out, the Lockean strategy may thus provide the ‘easier way out’ only in ideal theory; in the real world, it will be very hard to actually identify existing holdings as complying with the rules of original appropriation and legitimate transfer.

15. Waldron attaches much importance to Kant’s remark that ‘when you cannot avoid living side by side with all others, you ought to leave the state of nature and proceed with them into a rightful condition’ (Kant 1996, pp. 451/452).

16. The assumption that it is those in my immediate vicinity with whom moral arbitration is particularly urgent might itself be questioned. For, in today’s world who is a threat to whom depends more and more on structural power relations mediated by markets and institutions that are largely independent of spatio-temporal proximity. However, for the sake of the argument I shall run with it here.

17. I am grateful to an anonymous reviewer for pressing this line of argument.

18. Moore (2015) has offered a very similar, though not primarily Kant-inspired account that centres around occupancy rights.

19. This is merely a prima facie right as there are distributive constraints as well as other potentially overweighing considerations.

20. Indeed Kant himself grants all individuals a ‘right to be wherever nature or chance (apart from their will) has placed them’ (Kant 1996, p. 414).

21. Stilz (2011a, p. 575) does consider something like (temporally limited) ‘residual’ peoplehood in cases where people who used to have a state do not have it anymore.

22. I am grateful to David Miller for this example.

23. Interpreters are in dispute how precisely to understand the idea of ‘provisional’ property rights that could be acquired pre-politically under the permissive principle. While some argue that provisional rights are merely an inconclusive form of property rights that are subsequently rubber-stamped by the state (e.g. Hruschka and Byrd 2010), I side with those who point out that according to the very structure of Kant’s argument property rights are only possible under public authority (e.g. Flikschuh 2000). This is what causes the problematic lack of a criterion upon which to determine the particular shares that can be carried over into the ‘public condition’.

24. I take it that the specific ambiguity I point out here is reflected in a wider tension in Ypi’s work as a whole, between statist commitments (e.g. Ypi 2008) and the endorsement of more radical types of institutional change (e.g. Ypi 2013b).

25. Some of these arguments are nicely summarised in Miller (2010b).