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ECPR Journals Virtual Special Issue

Can the State Be Materially Wronged?

Government
 
Human Rights
 
Political Theory
 
Social Welfare
 
Jurisprudence
 
Normative Theory
 
State Power
 
Presenter
Marie Newhouse
University of Surrey
Authors
Marie Newhouse
University of Surrey

Abstract
In previous work, I have argued that there are two partly overlapping and collectively exhaustive categories of wrong actions: material wrongs and formal wrongs. Material wrongs, on this account, are those actions that are physically incompatible with the freedom of others, whilst formal wrongs are actions on maxims that logically contradict the concept of a rightful condition. In this current paper, I explore the question of whether the state itself can be materially wronged and identify two reasons why this may be impossible.

First, the state cannot have acquired rights because independent adjudication by an authority is a constitutive element of such rights, and there is no independent authority available to adjudicate rights claims between the state and an individual subject. As Kant writes: “The civil union cannot itself be called a society, for between the commander and the subject there is no partnership. They are not fellow members: one is subordinated to, not coordinated with the other; and those who are coordinate with one another must for this very reason consider themselves equals since they are subject to common laws. The civil union is not so much a society but rather makes one.” The state cannot coherently be subject to its own laws of private right.

Second, the state lacks the faculty in virtue of which individuals are justified in acquiring property: the ability to set their own ends. In Kant’s argument postulating the lex permissiva, he explains that property rights are necessary to the exercise of our external freedom because we are not free to set our own ends unless we know what external objects of choice are available for our use, and therefore what ends we can will (instead of merely wish for). The state has an end: it exists to bring about a rightful condition, and it is analytically true that that end will contain within it the necessary means to the end. However, the state is not free to adopt or discard ends, and so, whilst the state requires authority to control land within its borders (its ‘proprietary authority’), it does not require property rights, nor can such rights be justified in Kantian terms. If the state does not have acquired rights, then the state cannot be materially wronged, because no action can be physically incompatible with the exercise of those rights.

My paper will explore the implications of this conclusion for policies concerning the use of public spaces. If the state cannot be materially wronged, then any use of public property that is wrongful must be formally wrong: the maxim of the action in question must be logically incompatible with the concept of a rightful condition. Occupation by the homeless of nominally state-owned land might not be wrong at all, and if an action is not wrong at all, then neither civil damages nor punishment will be justified. This raises the question of exactly what kind of response may be rightful and appropriate in such cases as an exercise of the state’s proprietary authority.
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