Territorial boundaries and history

Simmons’ Weak Thesis

I think Simmons is right that that questions about the legitimacy of political subjection (that is, about the process of imposing political rule) are distinct from questions about structural justice. I have called this his weak thesis, and it has received insufficient attention, in part due to crucial features of Rawlsian and post-Rawlsian political philosophy. Rawls’s methodology, especially in Theory of Justice, focused on reforming an existing basic structure in the direction of an ideal of egalitarian justice. In framing his subject this way, Rawls set aside any question about how that society’s boundaries might be legitimately constituted. This, in turn, generated a familiar cosmopolitan critique of the notion that state boundaries set limits to justice: On this view, Rawls’s principles for a just domestic basic structure should be extended to the world at large. In a sense, then, Simmons’ view of the failings of Rawlsian political philosophy is of a piece with the cosmopolitan view of its strengths. Both think that the telos of Rawlsianism is to universalize a just basic structure to the globe as a whole.

Rawls’s neglect of boundary issues stems in part from his focus on ideal theory. Ideal theory assumes general compliance, including compliance with prohibitions on state aggression. Further, as background to his ideal theory, Rawls assumes a well-ordered society for which principles of justice are to be chosen. A well-ordered society, as Rawls defines it, is a cooperative enterprise. Social cooperation is distinct from merely socially coordinated activity, guided by orders issued by an absolute central authority (Rawls, 2001: 6). Rather, participants in social cooperation accept their public institutions – and the principles of justice they embody – as appropriately regulating their conduct, and they act from these principles. This notion of a well-ordered society is plainly an idealization, in which many of the problems with which Simmons is concerned (annexation of the unwilling, conquest, trapped minorities, and so on) would not arise. But it does suggest that Rawls thinks that forced subjection would not feature in a perfectly just society.

No doubt Rawls’s Theory of Justice methodology – which failed to justify these background assumptions in much detail – had major consequences for the trajectory of post-Rawlsian political philosophy. But important aspects of the Law of Peoples show that Rawls did not ignore boundary legitimacy completely. There he argues for ‘preserving significant room for the idea of a people’s self-determination and for some kind of loose or confederative form of a Society of Peoples’ (Rawls, 1999: 61). Indeed, to the chagrin of his cosmopolitan followers, Rawls defends the right of a decent hierarchical society not to be forced to be a liberal democracy. He is skeptical of external intervention into the affairs of decent peoples, going so far as to argue that liberal societies may not offer them incentives – or even engage in official criticism – to get them to adopt a liberal democratic constitution (Rawls, 1999: 84). This prohibition on intervention is linked to an ideal of social cooperation undergirded by a people’s ‘common sympathies’ and to the goods of self-determination and collective self-respect. So Rawls proves reluctant to impose just institutions on unwilling peoples: boundaries have some moral significance for him. (All this, of course, is exactly why cosmopolitans found the book so troubling).

Whatever Rawls’s views on boundary legitimacy might have been, it is certainly correct to say that the issue was never the central focus of his work. And here it is a genuine insight of Simmons’ book that a theory of just basic structure, of a broadly Rawlsian kind, simply cannot account for boundary legitimacy, because it says nothing about the manner in which a political order is imposed. Simmons’ weak thesis holds that there is an additional relational dimension to state legitimacy, one that focuses on whether the process of imposing political order manifests sufficient respect for its subjects as free self-governing persons. I believe Simmons’ weak thesis is crucially important: only by taking it seriously can one appreciate what is wrong, for example, with benign colonial rule.

The Role of History

But if we accept Simmons’ weak thesis, are we thereby committed to his strong one? The strong thesis, again, has an unmistakably historical flavor: it holds that to be legitimate, boundaries must be traced to the original property acquisitions, and the actual historical consent, of state founders. On Simmons’ view, to be morally justified, the state’s territorial and membership boundaries must be constructed on the basis of the historical choices of individuals ‘to submit both themselves and the land on which they live and work to the state’s authority’ (Simmons, 2016: 117). Unlike Kantian, nationalist, and hybrid theorists, Simmons resists ‘supersession’ of rights in land. And since Lockean voluntarism holds that legitimate political authority depends on the actual consent of its subjects, trapped minorities cannot be subjected to political rule against their will (Simmons, 2016: 123). Simmons sees this emphasis on history as an advantage: he claims that compared with its rivals, his Lockean view can better account for our concerns about past injustices to unwilling minorities.

But is it really plausible that legitimate boundaries in the present should depend so heavily on facts about the past? I worry that Simmons’ account trivializes the intuitively compelling claims of, for example, contemporary indigenous peoples, by equating them with much more frivolous claims rooted in ‘ancient wrongs.’ Consider the kingdom of Mercia, conquered and settled by Vikings in the eighth century. I will assume (perhaps wrongly) that the Mercians were rightful original appropriators of their territory. On Simmons’ principles, therefore, the first generation of Mercian victims had a right against the first generation of Viking wrongdoers to restore their land and kingdom. Moreover, since the passage of time involves no supersession of rights, some vestige of this right must persist today. Of course, since descendants of Vikings and Mercians have long since intermarried, and now inhabit other parts of the world, it is very difficult to untangle these issues. But suppose an amateur genealogist proves that the blood running in his veins is largely of Mercian extraction. On Simmons’ principles, it seems he has a right to see his ancestral Mercian lands and kingdom restored. Of course, since population size in Central Britain has increased greatly since the eighth century, these rights will have to be downsized, and since others now have expectations of living there and being ruled by the modern British state, the right may be overridden by their interests. But it seems some moral residue of this historic right persists, requiring that he receive (at least a symbolic) share of former Mercian lands, or perhaps an apology.

Yet it strikes me that these Mercian descendants have no morally weighty interest in restoring their ancestral kingdom or in returning to live where it once existed. They are doing just fine where they now are, with lives that differ greatly from their Mercian ancestors. They have little reason to undo whatever wrongful historical processes set the stage for the lives they lead today. Yet if claims based on ancient wrongs have so little intuitive force, then why stake so much on history? Why think that present-day boundaries should be legitimated through an inquiry into the processes of the past?

Of course, there are some claims to rectification – like those of indigenous peoples – that have much greater intuitive force. But it’s not clear that these more compelling claims are best explained by a historic entitlement theory. Given the history of precontact warfare among indigenous peoples themselves, many of those displaced and relocated by colonization were not the original Lockean owners of their territories. Nor is it obvious that the claims of contemporary indigenous peoples are best responded to by reinstating, say, their pre-Columbian institutions. (One common complaint of indigenous peoples is that, in order to have their claims heard, they must present themselves as ‘frozen in time’). So why not instead explain indigenous peoples’ claims by referencing their continued structural and cultural oppression, their alienation from the colonial state, and the role that restitution of some of their lands might play in restoring their cultural integrity, and sense of identity and self-respect? Why bring in a theory of historic property entitlements at all?

Even if one agrees with Simmons that status quo territorial boundaries ought to be revised to accommodate some alienated minorities, then, it is not clear that one must recur to history in order to defend that stance. In thinking about groups who were wrongfully incorporated into the state, it seems to me that whether they have a current claim to autonomy mostly depends on their present relation to that state, not on facts about their ancestors. Are they largely willing participants in the state, affirming and endorsing their association with its institutions? Or are they instead alienated from it, seeing themselves as forced against their will to comply with institutions they reject? Sometimes descendants of wrongly incorporated groups do come to accept and endorse a conquering state’s political order and are reasonably justly governed by it. Arguably, descendants of former Mexican nationals in the US Southwest (annexed in 1848 following the Mexican–American war) meet this criterion. In a case like this, it is hard to see why we should restore the status quo ante. ²

Further, there are groups who may now be owed autonomy even though they lack any historical grievance, because they persistently find themselves in the minority when it comes to fundamental issues about how to organize political life. Arguably, Scotland – voluntarily unified with England as the result of an act passed by the Scottish Parliament in 1707 – has a claim of this sort, based on their status as a permanent minority within a Tory-leaning Britain.

I, therefore, doubt that a theory of boundary legitimacy which does justice to our intuitions about unwilling minorities, and which allows for some revision of status quo boundaries, must take a historical rather than a presentist form. A presentist theory can still emphasize the importance of subjects’ relation to their state, in addition to the justice of its basic structure. But the presentist view will stress the importance of this issue here and now – asking, for example, whether institutions are currently being forced onto unwilling, reluctant participants – rather than looking back at the manner in which political order was established in the distant past.

Simmons’ particular historical theory is Lockean in character and, therefore, places great weight on prepolitical property rights and individual consent to political authority. One controversial issue here is whether there can be natural rights to property of the Lockean kind. Simmons holds that individuals can acquire natural rights over previously unowned land by usefully employing it in their projects and purposive activities (Simmons, 2016: 163). He further argues that these rights are heritable and ‘descend down family lines’ (Simmons, 2016: 174). Finally, he suggests that the original owner’s (or his heirs’) right to an unjustly taken thing can ‘remain through any number of unjust transfers of the thing over any period of time’ (Simmons, 2016: 164), though these rights are sometimes overridden by competing considerations and can be affected by changing circumstances. Many contemporary theorists, however, deny the existence of natural property rights, holding instead that all property rights are conventional. While I am sympathetic with aspects of this critique of Lockean property, I will not pursue it here, since my co-symposiasts have already done so quite effectively. ³

Instead, I’d like to examine the role that individual consent to political authority plays in the Lockean view. Simmons argues that one virtue of consent theory is that it does better than rival views at accounting for our intuitions about colonized peoples and trapped minorities. But I doubt this. On Simmons’ view, since most of us are non-consenters, ‘most of us are illegitimately subjected to state coercion’ (Simmons, 2016: 53). He suggests, in other words, that individual anarchists – and indeed, most ordinary citizens – share the very same complaint as a colonized subject. Every non-consenting citizen is, morally speaking, illegitimately subjected to their state, much as a colonized Indian or Algerian was illegitimately subjected to imperial rule. Yet surely this is counterintuitive! Intuitively, those who lived under the British Raj or the French Empire had a different (and much more compelling) complaint about their political subjection than do non-consenting inhabitants of the US or Canada.

I think Simmons moves too quickly from the idea that we do not consent to the state to the idea that we must be unwilling participants in it. One can be a willing participant even in a nonconsensual relationship. We do not consent to our families, for example, but not having chosen one’s family does not mean that one’s family is an alien constraint on one’s life. In good families, children have a valuable relationship with their parents, which they care about and endorse. In this situation, though members did not consent to the family, it reflects their goals and purposes much as if they had. Many other social groups – like workplace and school associations – are only quasi voluntary, since our options to join and leave them are highly constrained. Still, these groups can (and often do) instantiate members’ shared aims. So a nonconsensual relationship can be willingly engaged in by its participants.

When I think about the real cases of colonial rule, I am not troubled by the fact that the individual members of a subject people did not consent to the state – something you and I have also not done. Rather, I am troubled by the fact that the unilateral imposition of colonial institutions paid no regard to their shared judgments about how, and by whom, they wished to be governed. Conversely, I think that rule by the US or Canada does reflect citizens’ shared judgments about how they wish to be governed. Most citizens of these states endorse their political institutions, constitutional values, and political procedures, and they see their state as legitimate. They obey the law and pay their taxes willingly, and they cooperate with their officials without having to be forced. Indeed, many citizens think they have a moral duty to do these things! On the other hand, Indians and Algerians, by and large, rejected their imperial institutions and did not see these institutions as legitimate. They wished to be ruled by very different people through very different political arrangements.

Of course, as Simmons points out, even in the US or Canada, some dissenters reject current institutions. Some of these dissenting minorities (perhaps indigenous peoples or the Quebecois) may have claims to political autonomy. Still, I think we have a strong justice-based rationale for coercing individual anarchists (or those with ‘ruggedly independent’ conceptions of the good; Simmons, 2016: 138) to acknowledge the authority of the court system or to refrain from vigilante enforcement. As a Kantian, I believe that we owe it to other people to submit ourselves to the authority of some (minimally just) state, since a territorial state is necessary to fairly specify, interpret, and enforce everyone’s rights. Those who live alongside the anarchist, therefore, have a claim against him to support an institution that can perform such morally mandatory tasks. I do not want to live next door to a rugged individualist who think he can get out his gun to use proportionate force on me every time that, by his lights, I violate his rights. If nothing else that would make my life extraordinarily insecure: I would live as a prisoner of the idiosyncrasies of this neighbor’s private sense of justice and his power to enforce it.

So if a disaffected individual refuses to participate in any feasible territorial state, then it seems to me that we have a good reason for subjecting him to coercion, despite his unwillingness. Our duties to establish justice have an importantly territorial dimension: We cannot establish a unitary interpretation of property and contractual rights, enforce those rights, and punish violators, unless people who live in proximity are subject to the same institution. If each person instead enforced his own private view of justice, or signed up for the jurisdictional organization of his choice, then interactions between people in a contiguous geographical space would continue to generate conflict and disputes. For this reason, everyone – including the rugged individualist – has an enforceable natural duty to coordinate with others under territorial authority.

Yet this justification for coercing the unwilling is a limited one. As Simmons notes, the ‘general obligation to submit ourselves to the administration of some state’ does not establish any right on the part of ‘existing states to use coercion to limit the ways in which we may discharge this obligation,’ for example, by ‘making impossible the creation of new states’ (Simmons, 2016: 72). Sometimes sufficiently territorially concentrated and politically organized minorities can form separate institutions to discharge their obligations of justice without violating anyone’s rights or drastically destabilizing political order. In these cases, I think states have a duty to grant such groups autonomy or independence. While it is permissible to coerce lone or dispersed dissenters where a stable, minimally just legal order cannot otherwise be established, this does not mean unwanted political coercion is always justified. In particular, where a group is willing and able to establish their own minimally just territorial arrangements, without any serious risk of inflicting injustice on others, then the state has no justification for coercively imposing an unwanted political order on them. If a state forces an unwilling group to submit in these circumstances, its rule over them is illegitimate.

A Kantian Account of Self-Determination

Ultimately, then, I find unconvincing Simmons’ claim that Lockean voluntarism does better than Kantianism at accounting for our intuitions about colonized minorities. Since the Kantian view can specify that it is permissible to impose political order on unwilling participants only in a narrow range of cases, it need not sanction colonialism or annexation.

Still, I believe it is very important that a Kantian take on board Simmons’ weak thesis, which holds that to be legitimate, a state’s political order must be imposed in a manner that manifests proper respect for its subjects as free, self-governing persons. Further, I think a Kantian view actually has the resources to account for this claim, and this needs to be stressed. The Kantian view is wrongly assimilated to functionalism: Instead, it should be understood as incorporating a (limited) claim to political self-determination.

To explain this claim to self-determination, we should draw in particular on Kant’s argument that the rules governing our collective political life ought not to be enforced unilaterally. Kant holds that it is normally wrong to unilaterally use force or coercion to impose one’s judgments on others, including one’s judgments about justice, even if one’s views are correct. Instead, he argues that legitimate enforcement requires a public authority whose use of coercion represents an omnilateral, not a unilateral, will. It is this dimension of Kant’s view, I believe, that best responds to Simmons’ concerns about imposing political order onto unwilling subjects.

What exactly is wrong with the unilateral enforcement of justice? I think there are two problems, one more fundamental than the other:

Inequality: Unilateral enforcement sets up a hierarchical relationship between the parties involved. There is the powerful enforcer, on the one hand, and then there are the others, who must obey the decisions that the powerful enforcer makes. These unequal power relations can undermine equality between the ruler and ruled. If equal social relations are of intrinsic value, then individuals have some pro tanto reason to refrain from enforcing their judgments of justice unilaterally (Kolodny, 2014; Viehoff, 2014).

Of these two worries about unilateral enforcement, I believe the autonomy worry is the more fundamental one. The principle of individual autonomy holds that, as rational agents, we ought to be able to direct our lives, to a significant degree, according to our own judgments. This idea grounds important basic liberties, like freedom of speech, conscience, association, privacy, and so on. The value of autonomy is less commonly thought to bear on the choice or enforcement of other regarding social rules. Yet I think the principle of autonomy does have implications for the making and enforcement of political decisions. It is important that political decisions be made and carried out in a certain way, via the willing intentional agency of those subject to them. If a set of rules is forced on a population over their explicit objections, and against their will, then the process of its imposition fails to adequately respect their autonomy. It will also likely produce further, derivative harms to them. Those who are subjected to unilateral coercion will find their political institutions alienating, as though a hostile force exercised near-complete control over their lives. They are also unlikely to experience their political world as one in which they have valuable relations with other participants or where they can feel at home.

Because it involves these important harms, I believe unilateral coercion is normally pro tanto wrong. There is an important class of exceptions: when someone refuses to acknowledge very basic elements of autonomy and independence – say, someone assaults me in an attempt to murder me – that failure of recognition releases me from any reciprocal requirement to respect his autonomy in return, by refraining from unilaterally coercing him. So the requirement to refrain from unilateral coercion holds only with respect to those who are willing to recognize others as bearers of a moral claim to autonomy and independence and to acknowledge the duties of political coordination that flow from this. I call these individuals cooperators. Claims to be free from unilateral coercion should, therefore, be understood as moralized claims: there is no wrong in coercing non-cooperators. Yet in my view, it is pro tanto wrong to coerce cooperators unilaterally. This is so even when their interpretation of the precise demands of mutual autonomy and independence is mistaken. Instead, one should interact with cooperators using persuasive means.

Even where unilateral coercion is wrong (that is, in the case of cooperators), I also think this wrong can sometimes be outweighed. If there is no other way to secure very important social values, such as the essentials of justice and public order, it may be permissible, all things considered, to subject some people to unilateral coercion in certain scenarios (for example, the scenario considered earlier, of the rugged individualist who refuses participation in any feasible state). So the requirement to refrain from unilateral coercion out of respect for autonomy is weighty but not absolute.

I think this autonomy worry about unilateral coercion is at the core of our complaints about colonialism and involuntary annexation. Of course, colonialism was wrong for many reasons, including human rights abuses, racism, and so on. But unilateral coercion was one of its key wrong-making features. A particularly destructive effect of ‘civilizing’ colonialism, for example, was the forcible imposition, onto a subject population, of a social order that bore no relation to their own views about how they should be governed. Those who lived through this experience tell of a sense of powerlessness and a loss of orientation and control. This produced lasting alienation among them, a problem that persists even today. So even in the best imaginable circumstance, where colonial institutions are substantively just, still they deny the autonomy of colonized subjects, disregarding their claim to shape their common life on the basis of their own judgments.

How might political order come to be imposed in a manner that sufficiently respects cooperators’ equal claims to autonomy? Here, Kant argues that a legitimate state must reflect the shared will of the cooperators subject to it. I believe that we should understand a shared will as involving an actual joint intention – held by cooperators – to support specific governing arrangements. To be legitimate, a state must not only offer minimally just governance, it must also reflect the shared intention of cooperators to establish justice through a particular institutional configuration. Where the state’s use of political power reflects cooperators’ shared intentions, they are enabled to relate in a distinctive way to their state and to the constraints it imposes on them. The state is not a hostile, dominating power, but rather an institution that enables those citizens to carry out practical commitments that they see as their own.

Now one might object here that in a diverse political world, it is impossible that political institutions could reflect their subjects’ shared commitments. For this to be feasible, subjects must share attitudes or values. But we know that groups almost never agree on anything in politics! To be sure, no individual’s personal judgments can be mirrored by each and every political decision. Still, I don’t believe this makes a shared will impossible. There is a second-order sense in which an individual’s priorities can be reflected in her governing arrangements, even when she disagrees with some of the government’s specific decisions. This will be the case when she shares a ‘higher order’ commitment to a cooperative political enterprise and to certain shared values and procedures by which she believes that enterprise should be structured, and decisions are made in a way that reflects these higher order commitments. Individuals’ commitments to participating in a common political enterprise, on this view, are very important in enabling the imposition of political order in a manner that respects their autonomy.

So participants can freely accept their political institutions, and the outcomes that result from them, even when they disagree with those outcomes, so long as they share a commitment to a collective political venture and to the values and procedures that structure it. The object of their shared commitments need not be first-order political decisions: it can be fairly abstract ideals and procedures, of the sort typically enshrined in a constitution. When individuals together share those collective commitments, I will say that they share a political will.

To see the importance of a shared will, consider an example. While I often disagree with my colleagues about whom to hire, I prefer that we make our own hiring decisions together – through our accepted consultation processes – even though that means recognizing some decisions with which I personally disagree. Indeed, I would consider myself disrespected if the dean overruled our collective decision, even if the result was to impose my preferred candidate. Although our hiring decisions do not always reflect my first-order preferences, there is still an important, second-order sense in which my priorities are reflected in these decisions. I share a commitment to a valued cooperative enterprise together with these colleagues and to certain shared policies by which I believe that enterprise should be governed.

Much more can (and should) be said about the idea of a shared political will, and I develop this idea further in other work. But for now, I wish to stress the important role that a group’s shared political will might play in allowing the Kantian to accommodate Simmons’ important insights concerning the manner in which coercive political order should be legitimately imposed. When each member participates in a group’s shared will, and the government enforces laws and policies that reflect that shared will, then the coercive imposition of these rules will not be hostile and dominating to the members. Although she does not personally endorse every political outcome, each member is governed in accordance with political values and institutional procedures that she does endorse. Coercion in accordance with a shared will differs from unilateral coercion, then, because it is based on a joint intention – in which each cooperator shares – to act together to establish justice through a particular institutional configuration. In that case, rule by the group’s institutions will be in the service of each cooperator’s interests in autonomous, self-governing agency.

If properly developed, then, I believe a Kantian view can – and should – take on board some of the powerful insights that underlie Simmons’ weak thesis, by stressing the role that citizens’ shared will must play in legitimating state coercion. Such a view will hold that our most basic natural duties require us not only to coordinate together in a legitimate territorial state but also to impose that state’s political order in a manner that is sufficiently respectful of others as autonomous agents. We can coordinate in that way only if we are willing to respect people’s shared commitments as to how they should be ruled.