Table Of Content

Boundaries of Authority Boundaries of Authority A. JOHN SIMMONS 1 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Names: Simmons, A. John (Alan John), 1950– author. Title: Boundaries of authority / A. John Simmons. Description: New York, NY : Oxford University Press, [2016] Identifiers: LCCN 2015039691 | ISBN 9780190603489 (hardcover : alk. paper) Subjects: LCSH: Territory, National—Philosophy. | Jurisdiction, Territorial—Philosophy. | Nation-state. Classification: LCC JZ3675 .S56 2016 | DDC 320.1/2—dc23 LC record available at http://lccn.loc.gov/2015039691 1 3 5 7 9 8 6 4 2 Printed by Sheridan Books, Inc., United States of America CONTENTS Preface vii Introduction 1 PART I POLITICAL AUTHORITY AND STATE BOUNDARIES 1. Authority: Practical, Political, Territorial 13 2. Disobedience, Nonideal Theory, and Historical Illegitimacy 31 3. Kantian Functionalism and the Boundary Problem 59 PART II STATES’ TERRITORIAL RIGHTS 4. Territorial Rights: Justificatory Strategies 93 5. A Lockean Voluntarist Account 116 6. Alternative Approaches 132 v vi Contents PART III PROPERTY AND TERRITORY 7. Rights Supersession 153 8. Resource Rights 187 9. Borders 213 Bibliography of Works Cited 251 Index 257 PREFACE This book has, in a way, been in progress for nearly two decades, though it took me almost that long to decide that there was a book lurking where I had thought there were only some related chunks of argument. As a result of this lengthy process, many pieces, bits, and revised portions of a large number of essays and lectures, some from quite a few years ago, have found their way into this final ver- sion, often intertwined with material that was composed very recently. During so many years of work on a project, one naturally receives help from many, many people. Alas, but just as inevitably, there were many more than I can now recall. To those of you whose assistance I’ve managed to forget, my sincere apologies along with my genuine gratitude. Here, though, are at least a few of those helpful groups, events, and individuals that I’m still able to remember. My thanks to the audiences, respondents, and participants at Virginia Tech, the Eighteenth Annual Greensboro Symposium in Philosophy, Bowling Green State University, the University of Virginia Law School, the University of Toronto Law School, the Chapel Hill (University of North Carolina) Workshop on Political Authority, the International Colloquium on Political Authority and Obligation, Royal Netherlands Academy of Arts and Sciences (University of Amsterdam), Harvard University, University of Arizona, University of Virginia Philosophy Department, Princeton University, the University of Pennsylvania Law School, the London School of Economics, Wake Forest University, the University of Maryland, and the Workshop for Oxford Studies in Political Philosophy. Among the individuals who’ve supplied writ- ten (or sustained verbal) comments on parts of the book, my thanks to Annie Stilz, David Copp, Sahar Akhtar, John Christman, Barbara Levenbook, George Sher, Randy Barnett, Chris Morris, Daniel Shapiro, Geoff Sayre- McCord, Dave Estlund, Tim Scanlon, Nahshon Perez, Mike Otsuka, Jody Kraus, Susanne Sreedhar, Bas Van Der Vossen, Matthew Adams, Leif Wenar, Massimo Renzo, John Arras, and Arthur Ripstein. Margaret Moore and Cara Nine, as readers for vii viii Preface Oxford University Press, generously provided comments on (almost) the whole manuscript. Try as I might, I could think of no plausible way to escape responsi- bility for the mistakes and confusions that remain in the text, despite the help of all these smart people. My wife and friend, Nancy Schauber, and my daughter, Sarah Simmons, are owed a different kind and order of gratitude. Nancy’s consistent support and advice, both philosophical and non-, have been invaluable throughout the course of this project. But equally important have been the calm and happy envi- ronments that she and Sarah have made possible, where they have both tolerated with grace and good humor my many hours of solitary work. As I complete this book in Paris, accompanied again by them both, my sense of undeserved good fortune— along, of course, with incomparable walks, art, architecture, food, and drink— has been the steady purlieu of an unusually gratifying writing process. Portions of the following articles, some very heavily revised and frequently discontinuous, are included in this book: “Historical Rights and Fair Shares,” Law and Philosophy 14 (1995), 149– 84. “On the Territorial Rights of States,” Philosophical Issues 11 (Social, Political, and Legal Philosophy) (2001), 300– 26. “Disobedience and Its Objects,” Boston University Law Review 90 (2010), 1805– 31. “States’ Resource Rights: Locating the Limits,” Territory and Justice Symposium (Edition on Resource Rights), C. Nine (ed.) (January 2012). Published online at Territory and Justice: A Research Network, http:// eis. bris.ac.uk/ ~plcdib/ territory/ papers/ SimmonsMooreReply.pdf. “Authority,” in D. Estlund (ed.), The Oxford Handbook of Political Philosophy (Oxford: Oxford University Press, 2012), 23– 39. “Democratic Authority and the Boundary Problem,” Ratio Juris 26 (2013), 325– 56. “Territorial Rights: Justificatory Strategies,” in D. Sobel, P. Valentine, and S. Wall (eds.), Oxford Studies in Political Philosophy, vol. 1 (Oxford: Oxford University Press, 2015), 145– 72. Introduction States are defined in international law as entities with permanent populations and fixed territories under government control.1 Henry Sidgwick, anticipating such definitions, was surely correct when he wrote that “it seems essential to the modern conception of a State that its government should exercise supreme dominion over a particular portion of the earth’s surface … Indeed, in modern political thought the connection between a political society and its territory is so close that the two notions almost blend.”2 Most of us think of nation- states in terms of their territories, first learning about our own and other nations by locating their colored territorial shapes on maps. Exactly where the territorial lines defining these shapes are drawn is obviously a matter of considerable importance to states, and the history of the conflicts in which modern states have engaged has regularly involved attempts, often successful, to redraw those lines by force.3 States, of course, not only occupy and identify themselves with particular territories, they almost always claim to do so rightfully. Such claims may some- times seem to amount to nothing more than claims of legality, claims made in accordance with the (disturbingly imprecise) international laws of territory. But usually states’ claims to their particular territories have a more distinctively moral tone to them. And it will be on the possible moral justifications of states’ 1 For instance, under the 1933 Montevideo Convention on the Rights and Duties of States (Article 1), states are defined as having these properties, along with the capacity to enter into relations with other states. The territorial state is the principal type of “legal person” recognized in international law. For a more sophisticated, but closely related, philosophical definition of the state, see Kavka (1986), 158. 2 Sidgwick (1897), 221, 222 ([chap.] 14, [sec.] 2). 3 Abraham Lincoln told Congress that a nation consists “of its territory, its people, and its laws. The territory,” he claimed, “is the only part which is of certain durability” (Second Annual Message, December 1862). Lincoln was fortunate not to have had to consider the prospect of portions of his nation’s territory being lost under steadily rising oceans. But he certainly knew what we all know: that the durability of national territory— as opposed to the reasonable durability of land— has throughout the modern state’s history proved to be anything but certain. 1