Territory and Public Reason

Political theorists have recently given renewed attention to the question of what basis there is, if any, for the rights of states over the territory that they occupy. Territorial rights have implications for a number of pressing political issues, including the justifiability of secession, the scope of the right to control migration across borders, and the global distribution of natural resources. The central question of this paper is what, if anything, justifies the right to make and enforce laws in a particular territory (the so-called ‘right of jurisdiction’)? According to functionalist views, territorial rights are best understood as grounded in the state’s fulfillment of morally necessary functions, such as maintaining order or ensuring sufficient justice. A common objection to functionalism is that it is unable to explain what would be wrong with certain instances of rights-respecting colonialism or territorial annexation where the usurper state would more effectively realize the necessary functions of the state. Considering cases like this is thought to lend support to views that allow for backward-looking considerations to play a role in grounding territorial rights, such as Lockean views and nationalism. The aim of this paper is to show that by drawing on theoretical resources from public reason-based theories of legitimacy—which hold that the exercise of political power much be acceptable from all reasonable or qualified points of view in order to be legitimate—we can develop a functionalist account of territorial rights that is appropriately sensitive to backward-looking considerations, and can thus respond to these objections.