Is territorial possession a form of property?

by Chris Bertram on August 11, 2006

I was reading a paper by Samuel Freeman the other day and came across a passage that I found arresting. I found it arresting because it asserted propositions that looked false to me. But Freeman is a very smart guy (and a very distinguished Rawls scholar) and I rather suspect that the points he’s alluding to are symptomatic of some very deep differences in philosophical opinion. They’re also of interest because Freeman’s denial that a state’s control of its territory is akin to property ranges him against both those who are more egalitarian than he is (Pogge and Tan in the passage quoted, but also those like Philippe Van Parijs who claim the existence of borders is sufficient to establish that there is a global basic structure) and Lockean libertarians. I reproduce the passage below together with some (possibly inept) reactions from me.

bq. The one significant practice or norm Rawls’s critics allude to which might at first appearance be regarded as a basic global institution is peoples’ recognition that nations have “ownership” or control of the land and natural resources in the territories they occupy. Pogge, K. C. Tan, and others see this example as justifying a need for a global distribution principle to regulate this practice, and decide how global resources are to be distributed. But it is a mistake to regard this norm as a basic institution, on a par with the institution of property. For control and jurisdiction over a territory by a people is sui generis: it is the condition of the possibility of the existence of a people and their exercising political jurisdiction. As such it is not a kind of property; for among other reasons, it does not have the incidences of property: it is not legally specified and enforced, nor is it alienable or exchangeable, but is held in trust in perpetuity for the benefit of a people. But more importantly, rather than being a kind of property, a people’s control of territory provides the necessary framework for the legal institution of property and other basic social institutions. Finally, peoples can and have controlled territories without norms of cooperation or even recognition by other peoples at all. Indeed this has been true of many countries for most of history; they have existed in a Hobbesian state of war. The point is not that there is anything just about this situation – on the contrary, it has been sustained by aggression and injustice for most of history – but that, unlike property and other basic social institutions, a people’s control of a territory is not cooperative or in any way institutional. It is then misleading to call a people’s control of a territory and recognition of others’ boundaries “property,” a “basic institution,” or part of a “global basic structure,” simply in hopes of showing an inconsistency in Rawls and smuggling in a global principle of distributive justice. (Samuel Freeman, “Distributive Justice and _The Law of Peoples_”, in Rex Martin and David A. Reidy (eds) “Rawls’s Law of People’s: A Realistic Utopia”: (Oxford: Blackwell, 2006).)

The following points strike me as relevant:

1. Freeman claims that control and jurisdiction over a territory is unlike property because it lacks the incidents (why does Freeman say “incidences”?) of property. But that is far from obviously the case. It simply isn’t true, for example, that a people cannot and could not alienate or exchange part of their national territory. Historically, territory has been bought, sold, exchanged, leased etc.

2. Minor quibble: surely it just isn’t true, as a matter of historical fact, that control and jurisdiction over a territory is “the condition of the possibility of the existence of a people”? Try telling that to the Poles, or the Kurds.

3. Since Freeman helps himself to history, it might be worth pointing out that, historically, most of the territories of Europe were owned by the monarch and that individual property was a kind of sub-tenancy (as it were). Insofar as “peoples” are historically the heirs of monarchs, their territorial possession looks like a
form of property. Moreover there was surely an institutional component to the territorial holdings of monarchs in that institutions like the Papacy or the Holy Roman Empire might be called upon to regulate disputes. (Naturally, I’m bluffing on this one, since my knowledge of medieval and early modern history is almost entirely amateur and, anyway, the historical facts may be a side issue. But if any passing medievalist wants to comment ….)

4. I think that lurking behind this passage there may be a claim of Kantian provenance to the effect that the possibility of real property ownership depends conceptually on the establishment of civil society (this is Freeman’s “necessary framework” point). Now that claim seems to me to be problematic since there appears to me to be no
reason in principle why mutual recognition of some ownership claims that extend as far as what Kant calls “intelligible possession” is incompatible with anarchy. Moreover, what Kant and Kantians present as a conceptual claim looks to me like an empirical claim that could be refuted by the observation of an anarchic society where property rights were respected. Of course there are all kinds of inconveniences that attend anarchic property rights and which would give people good reasons for submitting themselves to some authoritative system of adjudication. If we allow the possibility of genuine property rights in a state of nature we get a basically Lockean story rather that a Kantian one and one where the a state’s possession of its territory does indeed flow from the private territorial acquisitions of the contractors rather than than being a condition of the very possibility of such acquisitions.

5. If the story _is_ a Kantian one then surely problems arise whenever the territory of one state abuts another state? Don’t states then have an obligation to submit themselves to an authoritative system of adjudication in order to resolve possible disputes and doesn’t this look exactly like the same process (on a different level) of to the one which impelled the original Kantian individual owners of merely provisional property to submit themselves to a system of adjudication? (Indeed Kant says something very like this in the _Metaphysical Elements of Justice_ (sec. 43/Ladd pp. 75-6/ 313 standard ref).) Surely this point strengthens the claim that territory is like property rather than weakens it? And surely the resolution of the competing claims of people’s to territory presupposes just criteria according to which those claims could be settled? And doesn’t the need for such criteria give people like Pogge and Tan just what they’re looking for?

6. Relatedly and importantly, Freeman’s stylized historical point about Hobbesian unregulated territorial possession has to be taken as meaning that it is somehow of the essence of such territorial possession that it is institutionally unregulated whereas it is of the essence of _property_ that it is so regulated. But this seems weak. After all, even if you think that property, properly speaking, has to be subject to institutional control it still has a counterpart (physical possession, “provisional” property) that is not. Why isn’t territorial possession like this: there’s the unregulated physical possession sort and the properly-regulated institutional sort and, where we can, we ought to see to it that we have the latter and not the former. And seeing to that requires us to establish just and public criteria.

7. There’s also something really puzzling in the claim that territorial possession isn’t a basic institution but a condition of the possibility of basic institutions. If it’s X is a condition of the possibility of Y then X looks to be more basic than Y: I guess Freeman’s emphasis must be on the institutional part rather than on the basic part.



Z 08.11.06 at 5:48 am

I was very puzzled by Freeman’s excerpt. In fact, any sentence starting from “For control and jurisdiction…” strikes me as empirically false. Not sure what to keep of it then. Maybe he meant to insert “ought to” before any following verb, but that doesn’t really make sense either.

On the historical front, territorial possession fluctuated a lot during medieval Europe, between feudal lords, churches and abbeys, monarchs… It is quite lately that absolute monarchs concentrated the whole of their kingdoms into their hands. It is always hard to speculate about what people thought, but surely abundant historical records show that around the turn of the second millenium, lords used and wrote of territorial possession just like any other possession.

That said, I thought that you did not believe in a moral right of territorial possession, Chris. I seem to remember that you believed states had no moral right to forbid entry to non-citizens. So if you also believe territorial possession is no different from ordinary possession, does that imply that you don’t believe in a moral right to ordinary possession as well?


Steve 08.11.06 at 6:11 am

Perhaps you could elaborate a bit on the definition of the word property, because as I understand it, this entire debate doesn’t make sense.

My assumption is that ‘property’ is a thing that is owned (for instance, ‘I own a piece of property,’ or ‘Get off my property!’ etc). Thus, the question: Is territorial possession a form of property? doesnt’ even make sense (ex. ‘Is possession of a chicken sandwich a form of property? Is possession of a chicken sandwich a chicken sandwich? Intuitively, no. Possession of a chicken sandwich is a form of a relationship TO that chicken sandwich-its not itself a chicken sandwich. And similarly with property-territorial possession describes a relationship between an individual and a piece of property-territorial possession is not itself ‘property’). (another example: ‘Is beardedness a beard?’ Is neither right nor wrong. Its a question that doesn’t make sense. The relationship of a person to a beard is itself not a beard.)

I’m not being flippant. It may be that ‘property’ has an additional (philosophical?) definition; its not just a noun (= a thing that is owned) . I’m assuming you quoted from a book or article by Freeman, and such a basic definitional issue would have been caught before publication-thus, it must be my mistake-not his.



Chris Bertram 08.11.06 at 6:18 am

Thanks Z. I’ve thought about those issues quite a bit since that discussion. But I’m not sure that I’m anywhere near the point where my views on one thing can reliably be expected to cohere with my views on another in this area though!

I don’t think, though, that you should take me as asserting that territorial possession is _no different_ from ordinary private property. It is a question, rather, of working out what the relationship between the two is. (More than one person can have an interest in the same physical property, after all, as with landlords and tenants.)

On the exclusion of non-citizens, I’m tempted to retreat from my earlier view in favour of the thought that states that want to exclude outsiders owe those outsiders compensation for loss of their right to access that territory.


Chris Bertram 08.11.06 at 6:33 am

the question: Is territorial possession a form of property? doesnt’ even make sense

Yes it does Steve. It simply asks whether the relationship in which a people stands to the territory that it has jurisdiction over is similar in some relevant respects to an individual’s rights over an object or piece of land which they have a property right in.

I take it that facts like the fact that the United States government has the right to decide to permit people to drill for oil in its national parks (if it does have such a right) is relevant here. It isn’t as if the government of _Egypt_ can give people such permission with respect to bits of American wilderness.


Rob 08.11.06 at 7:09 am

It looks to me like Freeman’s main argument runs something like this:

a) an authority enforcing binding regulation on those living under it is a precondition of there being a basic structure to the society of those living under that authority;

b) the division of the world into states involves the distribution of the authority to enforce binding regulation over various groups, specifically the inhabitants of the territory controlled by the state;

c) as a matter of fact, no authority enforces binding regulation dealing with the division of the world into states;

d) therefore, the division of the world into states cannot be the subject of a basic structure (a requires binding regulation for there to be a basic structure; b and c then appear to show that no such regulatory body exists; ergo, no basic structure).

Your 3 attacks c) – it’s an empirical question and I genuinely don’t know. 4 though, look like attacks on a), because they seem to claim that either an authority enforcing binding regulation isn’t necessary (the point about property rights under anarchy). 5 seems to be questioning the conceptual possibility of the truth of c) – I suppose the easiest way to settle that is to ask whether all ongoing interactions must lead to a basic structure. 6 looks like it questions the desirability of c) – but then that’s shifted the argument from whether there is a global basic structure, to whether there ought to be one (like the difference between living under anarchy or not, maybe).

7 addresses another claim of Freeman’s, that territorial control is necessary for the enforcement of binding regulation, which means that states are necessary for that and so also basic structures (with the rest of the argument presumably running that territorial control must be indivisible to be able to enforce binding regulation, and so not only is there no global basic structure, as established by the main argument, there can’t be without threatening state’s ability to produce their own). I don’t think 7 works though: it’s not that the division of the world into states isn’t basic, it’s that it’s not part of any structure, because it’s not regulated.


Steve 08.11.06 at 7:20 am

“Yes it does Steve. It simply asks whether the relationship in which a people stands to the territory that it has jurisdiction over is similar in some relevant respects to an individual’s rights over an object or piece of land which they have a property right in.”

I think you’ve changed it, though. I agree with the above ‘…whether the relationship in which a people states to the territory… is similar to an individual’s rights over an object..’

Your first post questioned “Is territorial possession a form of property?” has been changed to “Is territorial possession a form OF RIGHTS OVER property?”. The second is not the same question as the first.



Tom T. 08.11.06 at 7:43 am

Comment #5 looks right to me. Isn’t Freeman essentially saying that there can be no property without enforceable property law?


Matt 08.11.06 at 7:58 am

A few more or less random points: First, I’m pretty sure that Freeman is using “People” in the above section in its technical Rawlsian sense in which case a people isn’t the same as a “nation” or an ethinic group, (many commentor on Rawls’s Law of Peoples make a hash of things by not seeing this.) Given this, the Kurds or, sometimes, the Poles, are not Peoples in the Rawlsian sense since being a People is at least largely a political matter- it really has very little to do with the idea of nations in the nationalistic sense. (Rawls didn’t want to use ‘state’ since he wanted to avoid the idea that he supported traditional state sovereignty, but it is necessary for a collection of persons, if they are to be a People in the Rawlsian sense, that they have political control over a territory.) That’s not an argument, just an explination.

Seconly, I think this idea of property is found not only in Kant, but it fairly common. I seem to recall some philosopher from Geneva who thought something similar. To quote someone you’re fond of, “whereas for Locke, fully fledged rights of private property can come into being in the state of nature, for Rousseau this only happens with the establishment of a political community via the social pact.”

To Steve: you have the common naive view of property. I don’t mean that as an insult at all. The view of property that Freeman is presenting is the one found in the law, where property is something you have _in_ something- to have property is to have a set of rights over some item. This idea is old- it’s Locke’s idea, too, though many philosophers make a hash of Locke by not seeing this, especially in relation to the idea of having property in one’s self, which of course, in Locke, doesn’t mean “self owernship” in the Libertarian sense but having certain rights in relation to one’s self.

On your #7 above- sure, territorial possession is more basic in the sense that it’s a necessary condition for having a “basic structure”, but that doesn’t mean it’s part of the “basic structure”. “Basic” is just being used in two different ways here, in a straight-forward way.


euroscot 08.11.06 at 8:11 am

There seems to be no international rule of property ownership that is legally enforceable; there is no UN army, for example. But because national law is enforceable, everything within a nation effectively belongs to it – even foreign owned property, which can be nationalised. Argentina refused to repay billions of dollars worth of loans to international lenders, and Bolivia nationalised resource extraction companies.

Fighting a sovereign nation for ownership of its property is a key instrument of transferring ownership internationally. To prevent all-out war, the rules of ownership really need to be rethought.


Chris Bertram 08.11.06 at 8:29 am

Well Matt the Kantian view may be implicit in Rousseau, but as I tried to convey in that chapter, he’s actually rather ambiguously situated between Locke and Kant in the very short discussion he gives. But of course the real issue is not what historical figures thought, but what we ought to think. To repeat one of my points above, why shouldn’t we say that a more or less stable system of mutual recognition of rights over, say, land, amounts to property? Especially, if we have some system of dispute resolution and criteria to use? And where we lack authoritative instututions to resolve disputes, don’t the very considerations that Kant applies to individuals apply to peoples: isn’t there an imperative for peoples to get themselves out of the state of nature wrt one another?


Matt 08.11.06 at 8:43 am

Sure- we do have a duty to leave the state of nature with regard to the international community. Rawls and Kant (and Freeman, I suppose) accept this- what’s rejected by both Rawls and Kant is the idea that we should treat the international situation the same as the intra-national one. Since the situation we find outselves in is quite different, and the problems we face are different, we get different rules. That doesn’t say much about whether states (or Peoples) are properly thought to have property in their territories, but just that all sides to _this_ debate accept that we should move out of an international state of nature- the dispute is over what we ought to move to and why.


Chris Bertram 08.11.06 at 8:58 am

Just how different those situations are seems to me to be a large part of what’s at issue here. There are borders, people born on one side of borders rather than another face enormously different life prospects because of that fact, and states vary enormously as to the resources that they happen to find within their borders. Freeman wants to say that basic institutions within borders can be the subject of regulation with a view to securing broadly egalitarian outcomes, but that borders and other similar features of the global order are not properly subject to similar regulation for similar purposes just because they’re not — properly speaking — institutional.

I’m inclined to say that if something walks like a duck and quacks like a duck ….


Chris Bertram 08.11.06 at 9:05 am

Or to put it another way (and to reinforce the property point): domestically there’s a coercive structure composed largely of property rights that distributes entitlements, permissions, limits freedom with respect to certain objects. Globally, there’s a coercive structure composed partly of national borders that similarly distributes entitlements, permissions, limits freedoms with respect to certain objects.


Matt 08.11.06 at 9:14 am

Well, when you actually look at international law, it’s _quite_ different from national law, so I’m inclined to say that we are at most comparing ducks to swans, or more likely gulls here. And I don’t just mean international law as it actuall is (though philosophers writing on these issues would certainly do well to actually look at that sometimes) but rather what we think we need law for and whether we need it in the same way in the international relm as we do in the national realm. To my mind it’s clear that we don’t. Others can disagree, of course.


Mike Otsuka 08.11.06 at 9:18 am

doesn’t mean “self owernship” in the Libertarian sense but having certain rights in relation to one’s self

Matt — I didn’t think the libertarian sense was anything other than the affirmation of certain rights in relation to oneself — e.g., rights of control over one’s own body. What have you in mind that makes you think otherwise?


Matt 08.11.06 at 9:31 am

Mike- my understanding is that libertarians endorse what Gary Becker has called “full” property rights, at least in the self, and the idea that other property rights flow from this. Additionally, at least many libertarians take these full property rights to be in some way self-evident or natural in a strong sense. (I’m thining in particular of Nozick, but pretty much any randomly chosen libertarian on the internet will give you a more simple-minded version of this.) I find that view to be crazy, though I don’t have time time or space to argue that here (and don’t want to derail Chris’s interesting post too much!) But, my point was only that that’s manifestly _not_ Locke’s view, since on his account this all comes from the “fundamental right of nature” (as I’m sure you know) and _that_ in turn clearly depends on his theological views. If you strip those away you might be left with something like a Libertarian view, but then it will be awfully mysterious what’s doing the work. And, of course, Locke clearly didn’t think we have full property rights, in Becker’s sense of the term, the term I think most libertarians assume to be the core meaning of property, in our person. I don’t mean to saddle you with this view, but I think that it’s a common one among libertarians. I should admit, though, that since I think libertarianism is crazy I don’t bother spending many hours trying to figure out the details of all the possible views. (To my mind Freeman does a good job of showing how libertarian ideas of property differ from liberal ideas in his “Illiberal Libertarians” paper, Philosophy & Public Affairs, Vol. 30 n. 2. Locke is neither libertarian nor liberal on property on this account, and I think that’s the right interpritation.)


Chris Bertram 08.11.06 at 9:38 am

what we think we need law for

Surely the official Kantian ™ answer has to be that we need law because freedom requires coercion so that the freedom of one is rendered compatible with the freedom of another. Rawlsians like Freeman would claim that a just domestic basic structure provides a best approximation to this by securing equal basic rights plus maximin. But they’re prepared to tolerate a global coercive structure that doesn’t realize the equal freedom of all but rather entrenches the freedom of some and and thereby restricts the freedom of others. (Shades of the fraudulent social contract from the 2nd Discourse?)


Rob 08.11.06 at 10:05 am

Insofar as we’re talking about Rawls here, this might depend rather a lot on what you think it is about the basic structure that mandates his theory of justice. It doesn’t look like it’s just the fact of coercive (quasi-)institutions, but the fact of social co-operation under those institutions, or else all the stuff about the social role of justice seems a little beside the point. Since the claim that there’s generally the same kind of social co-operation between members of two different states as between members of the same state is almost certainly false, even if we agree that there are coercive international (quasi-)institutions, that wouldn’t on Rawlsian grounds mandate the application of (the same) theory of justice to those institutions.

Also, there’s the question of the relevance of ideal theory here: are we really sure that in a world of Rawlsian just states, coercive international (quasi-)institutions would be troubling, particularly if we take into account the fact that international institutions clearly impact on the ability of states to become Rawlsian just states?


Chris Bertram 08.11.06 at 10:33 am

Insofar as we’re talking about Rawls here

I take it we’re not just engaged in Rawls interpretation in the way we might be engaged in Plotinus-interpretation, but that we’re interested in Rawls because we’re in what justice actually demands and we think that Rawls gets a lot of things right. On the points at issue then: if it is a Rawlsian claim that there isn’t a global coercive structure or that it isn’t properly institutional or that there’s an important and relevant difference in kind between global and domestic institutions, then I take it that we’re interested in (a) whether those claims are true or not and (b) whether they can be held consistently with other claims that Rawls or some Rawlsians make.

the claim that there’s generally the same kind of social co-operation between members of two different states as between members of the same state is almost certainly false,

Well it is true that co-operation between co-citizens may involve, say, deliberating and voting and things like that. Non-citizens are often taxpayers of course. A large part of my co-operative activity (and yours, I suspect) is economic, though. And that kind takes place both among citizens and between citizens and non-citizens. The laws of my country may make it hard for me to achieve my ends by hiring non-citizens to work for me. That kind of limitation on my freedom seems to me to be something that a theory of justice ought to say something about. The “official Rawlsian” line here seems to be that such a restriction on me would be justified if it were to the greatest benefit of the least advantaged co-citizen of mine, irrespective of its effects on my well-being or of the non-citizen whom I would otherwise hire.


Z 08.11.06 at 11:18 am

But more importantly, rather than being a kind of property, a people’s control of territory provides the necessary framework for the legal institution of property and other basic social institutions.

I think this sentence is particularly faulty. Control of territory might be required from the establishment of social institutions of nation states, but other social arrangements are easily conceivable and indeed historical examples abund. In fact, even restricting ourselves to current practices, many situation do not fit well in Freeman’s assertion. The EU comes to mind (consider that Greenland is part of Denmark but not of the EU and you already get a picture much more complex that anything Freeman allows).

Seems to me that (just) social institutions only require a commonly agreed method to take decisions. Sovereignty, I think, is a contingent choice whose ubiquity comes from factors that have nothing to do with justice and philosophy.


Rob 08.11.06 at 11:21 am

” A large part of my co-operative activity (and yours, I suspect) is economic, though. And that kind takes place both among citizens and between citizens and non-citizens. The laws of my country may make it hard for me to achieve my ends by hiring non-citizens to work for me.”

Not as much as I’d like, actually… But more substantively, whilst restrictions on hiring are undoubtedly a restriction on freedom, it might be stretching it to say that, by itself, the fact that you’re prevented from doing something with someone – hiring them, in this case – shows that you’re engaged in some kind of co-operative enterprise with them, or more strongly, that you’re engaged in relevantly the same kind of co-operative enterprise as your fellow citizens. It might well be the case that Rawls is wrong about either the requirement for co-operation, or the extent of the requirement.


anon 08.11.06 at 11:31 am

In re 12: The problem with what the “if it walks like a duck and quacks like a duck…” argument is that we are not asking “is territorial control/jurisdiction like property” in a linguistic sense; I would agree that, in casual conversation, jurisdiction is similar enough to property that we could reasonably use the word “property” to refer to it.

But we aren’t interested in casual conversation, we are interested in the normative results presented by Rawls. Those normative results come from a relatively complex argument, and “if it quacks like a duck” cannot establish that territorial jurisdiction is like property in a sufficiently strict sense to bring about the relevant conclusion, that the difference principle should regulate relations between peoples.


Matt Kuzma 08.11.06 at 12:30 pm

While the bulk of this discussion strikes me as entirely academic (I believe, as Mao did, that political power flows from the barrel of a gun – there is no such thing as justice, there’s only what the people with power decree) I also recognize that I’m considerably out of my depth, having no familiarity with any of the material which serves as the basis for the discussion. So I’ll reserve any thoughts I might have on the content of your argument on the basis of near-total ignorance.

But I do have two comments on the aspects of this discussion that I do understand.

why does Freeman say “incidences”?

Because Freeman, judging from the brief exerpt you displayed here, is one of the many very talented thinkers of this world who never really learned to write. This disease is more common in more technical fields, to the point that many scientific books are completely unreadable by anyone but the author’s cohort. The ability to convey your thoughts to a general audience is quite independent from any other kind of skill and is often underdeveloped in the most brilliant thinkers, the very ones we’d most eagerly like to learn from.

If it’s X is a condition of the possibility of Y then X looks to be more basic than Y: I guess Freeman’s emphasis must be on the institutional part rather than on the basic part.

He’s saying that X is necessary, but not sufficient for Y. You can have X without Y and X alone cannot justify “a need for a global distribution principle”


Adam Kotsko 08.11.06 at 12:45 pm

Try telling that to the Poles, or the Kurds.

Or even more notably, to the Jews. There are some Jewish thinkers (such as Daniel Boyarin) who would even go far as to say that it is essential for the Jewish people not to control territory, in order to retain their distinctive character as a people. Historically, it even appears that many factors that we now closely associate with Jewish identity did not reach a very solid form until after the Jewish elites were exiled to Babylon — compilation of the Torah, beginnings of rabbinic commentary, etc.

This phenomenon is not limited to the Jewish experience, but the Jewish experience does seem to provide a paradigm in some ways — for instance, many African-Americans have explicitly embraced Old Testament narratives as being descriptive of their continuing identity as a people, despite not having a territory to call their own (other than de facto territories produced by white flight).


abb1 08.11.06 at 12:57 pm

On the first read Mr. Freeman’s quote sounds like pretty much complete nonsense.

However, perhaps what he meant to say there is that the concept of ‘global justice’ simply doesn’t make much sense because different communities (nations) have different ideas of what ‘justice’ is.

See, they have their territories. Within these territories they build their frameworks of social institutions. Within each framework the word ‘justice’ has a meaning and so ‘distributive justice’ makes sense. But across the frameworks the word ‘justice’ has NO meaning and thus no ‘distributive justice’ is possible. Something like that, perhaps.


abb1 08.11.06 at 2:07 pm

The EU is a good example. In the 1970s ‘distributive justice’ between Spain and Poland, for example, would make no sense whatsoever – for obvious reasons. But today there is an entity with its framework of social institutions above these nations, which makes it possible. Including relatively liberal approach to migration of non-citizens.


Alan Peakall 08.11.06 at 4:30 pm

I think that abb1’s citation of the EU points to the significance of there being a sufficient sense of commonality that citizens of distinct states can assert the formula “we the people…” binding their distinct governments to a collective interest. In the case of the USA the founding states ceded their territorial claims to federal government so that unorganised territories were opened to the people of the United States regardless of their state citizenship. Although the treaties that today cover outer space and Antarctica appear to follow the same model, it seems implausible that they could be sustained with the United Nations Organisation as trustee if their objects were more readily exploitable.


Sam Clark 08.12.06 at 6:12 am

If I’ve got Freeman straight here, he’s being a good Rawlsian anti-monist: different domains require different normative principles, and the domestic and international domains are importantly different, because only the first permits institutionalised property. So, the Pogge/Beitz argument that Rawls’s distinction between domestic and international domains is incoherent fails. I don’t buy this (I don’t see why institutional property is the difference that makes a difference, and I’m suspicious of anti-monism in general). But more importantly: if institutional property is a necessary condition of having a basic structure, why is the basic structure, so understood, of any great significance for justice? The motive for taking the basic structure as the primary subject of justice was that its effects are profound and present from the start. Differences in life chances between members of different peoples are profound and present from the start. So, there’s an issue of justice here regardless of whether peoples own their territories in the specified institutional sense of ‘property’.


Rob 08.12.06 at 12:12 pm

Differences in life chances between people living now and people living in the past are also profound and present from the start. So, is there an issue of justice there regardless?


paul 08.13.06 at 12:51 pm

Doesn’t this argument run parallel to the US DoJ arguments in the Guantanamo cases, namely that because the US does not own the territory in question (but only leases it), the normal legal consequents of a government “owning” a place did not come into play?

It seems to me that both the methods and the consequences for transfer of this particular kind of “property”, which result in an effective impossibility of any market for it, make treating it like a duck, even theoretically, pretty much a matter of garden paths.


Sam Clark 08.14.06 at 5:57 am

Rob wrote (no.29):

“Differences in life chances between people living now and people living in the past are also profound and present from the start. So, is there an issue of justice there regardless?”

I’m not clear whether you’re joking or not, but taking you seriously as attempting a reductio, for the moment: not unless you have some way of acting to change those differences. I didn’t claim that every case where there are profound and present-from-the-start differences raises issues of justice. I argued that if there are such differences, it’s hard to see why claiming that they’re ‘not part of the basic structure’ has any relevance for the question of whether they raise issues of justice. That doesn’t mean that nothing has any relevance for that question, and ‘there’s no way to do anything about it’ would be a pretty good candidate for relevance.

In summary: your attempted reductio misses the point.


Craig Ewert 08.14.06 at 4:15 pm

in #4, chris wrote:

It isn’t as if the government of Egypt can give people such permission with respect to bits of American wilderness.

I don’t see why not, philosophically. That’s what the nations/monarchs of Europe did w.r.t. the Americas. The only thing standing in in Egypt’s way would be the raw physical might of the current holders of property in the Americas.

Are raw physical might and current possesion valid underpinnings for a philosophy of property, do you think?


Craig Ewert 08.14.06 at 4:17 pm

Chris said:

On the exclusion of non-citizens, I’m tempted to retreat from my earlier view in favour of the thought that states that want to exclude outsiders owe those outsiders compensation for loss of their right to access that territory.

I’m intrigued by this far-out position. Can you point me to where you have elaborated it? I must have missed it the first time around.


Chris Bertram 08.14.06 at 4:39 pm

Are raw physical might and current possesion valid underpinnings for a philosophy of property, do you think?

er no…. but since I’m objecting to the fact of unjustified coercion perpertrated by holders of territory against outsiders, I wouldn’t would I?

I’m intrigued by this far-out position.

Which far-out position? The thought that states that exclude outsiders might compensate them for their loss of access? I’ve elaborated that nowhere, and don’t know whether that would be my considered view anyway, but Hillel Steiner argues for such a position in his

“Hard borders, compensation and classical liberalism”, in Boundaries and Justice: Diverse Ethical Perspectives, (eds.) D. Miller & S. Hashmi, (Princeton: Princeton University Press, 2001).


Rob 08.14.06 at 5:58 pm


I’m not sure it does, actually. You invoked an effects criterion

“The motive for taking the basic structure as the primary subject of justice was that its effects are profound and present from the start.”

Time clearly has profound effects from the start (hahaha). I’m not sure whether time travel is possible, but if it were, it might be the case that being committed to the effects criterion in the kind of way you elaborate it would mean also being committed to the view that as a matter of justice we ought to investigate it. On the other hand, maybe I’m being stupid.


Sam Clark 08.16.06 at 5:04 am

Rob – not stupid at all, no, and I perhaps didn’t completely get your point (I wrote no.31 in a tearing hurry before going to catch a train).

There’s a novel by Orson Scott Card, Pastwatch, in which a far-future time-travelling society decides, for reasons of justice, to change things so that the whole disastrous history of American colonisation, slavery, etc. never happened, knowing that this will mean that they themselves never existed (will never exist?). Perhaps you’re right that, if there’s some chance that we could do something about past injustice, we should try. At least, I don’t know if I’d reject that out of hand.

But really, all I was suggesting in relation to Freeman was G.A. Cohen’s point that ‘the basic structure’ is an arbitrarily limited primary subject of justice. So, it doesn’t really matter whether territorial possession is a form of property – what matters is that which territory you happen to be in possession of is morally arbitrary, and gives rise to major differences in life-chances. Dunno if that answers your worry…

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