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OWNING LAND VERSUS GOVERNING A LAND: PROPERTY, SOVEREIGNTY, AND NATIONALISM

Published online by Cambridge University Press:  12 February 2014

Sam Fleischacker
Sam Fleischacker*
Affiliation:
Philosophy, University of Illinois, Chicago
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Abstract

This essay attempts to clarify the distinction between property and sovereignty, and to bring out the importance of that distinction to a liberal nationalism. Beginning with common intuitions about what distinguishes our rights to our possessions from the state's rightful governance over us, it proceeds to explore some historical sources of these intuitions, and the importance of a sharp distinction between ownership and governance to the rise of liberalism. From here, the essay moves into an exploration of group ownership, and the ways in which group ownership can in practice turn into an illiberal kind of sovereignty The point is to shed new light on problems that nationalist states — states purporting to represent or foster a particular group identity — characteristically face. Examples of these problems, from the Israel/Palestine conflict, are put forth in the conclusion.

Type
Research Article
Information
Social Philosophy and Policy , Volume 30 , Issue 1-2 , January 2013 , pp. 373 - 403
Copyright
Copyright © Social Philosophy and Policy Foundation 2013 

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References

1 Bronner, Ethan, “Where Politics are Complex, Simple Joys at the Beach,” New York Times, 07/26/2011; http://www.zimbio.com/The+Palestinian+Times/articles/796/No+Compromise+it+s+OUR+land [accessed on 02/06/2013]Google Scholar.

2 http://israelmatzav.blogspot.com/2011/09/rivlin-opens-school-year-5772-in-itamar.html; and http://www.israelnationalnews.com/News/Flash.aspx/78829#.URKQpoVXyUc (both accessed on 02/06/2013).

3 More precisely, it said “Palestine is our land and the Jews are our dogs.” (Morris, Benny, Righteous Victims [New York: Vintage, 2001], 94Google Scholar.) But the slur is irrelevant to the point that concerns me here.

4 Buchanan, Allenputs it this way inJustice, Legitimacy, and Self-Determination (Oxford: Oxford University Press, 2004), 388Google Scholar. Buchanan is himself not fond of this idea.

5 I shall use the words “governance,” “jurisdiction” and “sovereignty” more or less interchangeably here. All are based in law or principle rather than arbitrary will, which is what really matters for my purposes. And although I could speak of “governance” and “jurisdiction” alone, a point to which I particularly want to draw attention is the fact that systems of governance or jurisdiction are supposed to settle conflicts among property-owners, and that idea has traditionally gone along with a conception of governing systems as unified in such a way that they can settle conflicts definitively: which is precisely what is meant by “sovereignty.” So I will stick with “sovereignty” as a general term for the sorts of unified governance that states are supposed to represent. For doubts about the usefulness of the notion of sovereignty, in application to modern democracies, see Morris, Christopher, “The Very Idea of Popular Sovereignty: ‘We the People’ Reconsidered,” Social Philosophy and Policy 17, no. 1 (2000)CrossRefGoogle Scholar.

6 Simmons, , Political Philosophy (New York: Oxford University Press, 2008), 137Google Scholar; Buchanan, , “The Making and Un-Making of Boundaries: What Liberalism Has to Say,” in Buchanan, A. and Moore, M., eds., States, Nations, and Borders (Cambridge: Cambridge University Press, 2003), 232CrossRefGoogle Scholar. See also Miller, David, “Territorial Rights: Concept and Justification,” Political Studies 60 (2012): 266n. 3CrossRefGoogle Scholar, and “Property and Territory: Locke, Kant, and Steiner,” The Journal of Political Philosophy 19, no.1 (2011): 92–93Google Scholar. Miller elaborates the distinction to a certain extent in the latter essay, but his discussion is brief, and does not bring out the sharp contrast between ownership and governance. The deepest and most extensive account of the difference that I have found—but along rather different lines from my own—is to be found in Hendrix, Burke, Ownership, Authority, and Self-Determination, (University Park, Pennsylvania: Penn State University Press, 2008), chaps. 4–6Google Scholar.

The Miller essays are part of a large recent literature on territorial rights. My concerns here have an obvious bearing on the ones taken up in that literature, but I think I am dealing with an issue that is really prior to its primary concern. I also think that it generally takes for granted a conflation, or at least a far too close analogy, between property and sovereignty. This comes out in the very terminology of “territorial rights.” That phrase brings them too close to property rights. See further discussion below, note 28.

7 See especially Kymlicka, Will, Liberalism, Community and Culture (Oxford: Clarendon Press, 1989)Google Scholar, Tamir, Yael, Liberal Nationalism (Princeton: Princeton University Press, 1993)Google Scholar, Miller, David, On Nationality (Oxford: Oxford University Press, 1997)CrossRefGoogle Scholar, and Gans, Chaim, The Limits of Nationalism (Cambridge: Cambridge University Press, 2003)CrossRefGoogle Scholar.

8 Aristotle, Politics 1263a17–19, in Barnes, Jonathan, ed., The Complete Works of Aristotle, vol. 2 (Princeton: Princeton University Press, 1994)Google Scholar.

9 “[W]e find in Locke a variety of styles of argument for moral conclusions, sitting side by side and without any explanation of their differences.” Simmons, A. John, Lockean Theory of Rights (Princeton: Princeton University Press, 1992), 45Google Scholar. See also his account of Locke on property in chap. 5, and Peter Laslett's comments on sections 28 and 35: Locke, , Two Treatises of Government, ed. Laslett, Peter (1689; Cambridge: Cambridge University Press, 1988), 288–89, 292CrossRefGoogle Scholar. All other references to Locke's Treatises will be to this edition.

10 Locke had a multifold debt to Aristotle, in part through Aquinas and probably Suarez: see Tully, James, A Discourse on Property (Cambridge: Cambridge University Press, 1980), 65–66CrossRefGoogle Scholar.

11 See Ashcraft, Richard, Revolutionary Politics and Locke's Two Treatises of Government (Princeton: Princeton University Press, 1986), especially chap. 6Google Scholar.

12 Second Treatise of Government, in Laslett, op. cit. Unless noted otherwise, all of the other parenthetical references in the text are to section numbers in Locke's Second Treatise.

13 “For it is contrary to [God's] great wisdom to work with no fixed aim; nor indeed can man believe, since he perceives that he has an agile, capable mind, versatile and ready for anything, furnished with reason and knowledge, and a body besides which is quick and easy to be moved hither and thither by virtue of the soul's authority, that all this equipment for action is bestowed on him by a most wise creator in order that he may do nothing, and that he is fitted out with all these faculties in order that he may thereby be more splendidly idle and sluggish. Hence it is quite evident that God intends man to do something.” Locke, John, Essays on the Law of Nature, ed. von Leyden, W., (1664; Oxford: Clarendon Press, 1988), essay IV, p. 157Google Scholar. Context makes clear that “doing something,” here, is simply carrying out action, not “laboring” in the sense that might bring about a usable or saleable product. Of course, for Locke action should accomplish useful ends; the difference between “action” and “labor” may therefore not be great. But that just gives us more reason to recall this great paean to the value of action whenever Locke praises labor.

14 Simmons, Lockean Theory of Rights, 274. I do not want to rest much on the “labor-mixing” aspect of Locke's account, however; it is not necessary to the points I want to take away from Locke, and it has been widely derided. For a sharp modern critique, see Waldron, Jeremy, The Right to Private Property (Oxford: Oxford University Press, 1988), 184–207Google Scholar.

15 Smith, Adam, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. Campbell, R. H., Skinner, A. S., Todd, W. B. (Oxford: Oxford University Press, 1976), bk. 1, chap. 10, part 100, art. 12, p. 138Google Scholar.

16 Kant, Metaphsik der Sitten, ed. Paul Natorp, (Berlin: Preußischen Akademie der Wissenschaften, 1902), 6: 260–70.

17 Fichte, Johann Gottlieb, Foundations of Natural Right, ed. Neuhouser, F., trans. Baur, Michael (1797; Cambridge: Cambridge University Press, 2000), 185Google Scholar.

18 These include many who see themselves as Lockeans, such as Simmons, Waldron, Hillel Steiner and Gopal Sreenivasan.

19 Waldron, Jeremy, “Enough and as Good Left for Others,” Philosophical Quarterly 29 (1979)CrossRefGoogle Scholar, and Right to Private Property, 209–18.

20 Sreenivasan, Gopal, The Limits of Lockean Rights in Property (New York: Oxford University Press, 1995), 54–58Google Scholar.

21 It should perhaps be stressed that the idea that poor people in advanced economies have access to “enough and as good” materials as everyone else does not in fact seem true, whatever Locke may have supposed. (Nor does Sreenivasan, or any other contemporary Lockean, consider it to be true: they take it, rather, as something to work toward.)

22 See Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 178–82Google Scholar.

23 See Grotius, , Law of War and Peace, ed. Tuck, Richard, (Indianapolis: Liberty Fund, 2005), II.III.IVGoogle Scholar Can you provide additional details of publication for Grotius?, and Cumberland, Richard, A Treatise of the Laws of Nature, trans. Maxwell, John, (1672; Indianapolis: Liberty Fund, 2005), chap. 7, sec. 2Google Scholar. Oliver O'Donovan argues that a confusion between property and jurisdiction entered Christian political thinking around 1300 but the two had been sharply distinguished earlier: O'Donovan, , “Christianity and Territorial Right,” in States, Nations, and Borders, ed. Buchanan, Allen and Moore, Margaret (Cambridge: Cambridge University Press, 2003), 136–37Google Scholar.

24 Richard Ashcraft, Revolutionary Politics, 252, quoting Western, J. R., Monarchy and Revolution: The English State in the 1680s (London: Blandford Press, 1972), 31CrossRefGoogle Scholar and Bydall, John, Jura Coronae: His Majesty's Rights and Prerogatives Asserted (1680), 92Google Scholar.

25 Quoted by Locke in his First Treatise, sec. 8.

26 Meisels, Tamarsuggests a similar modification: Meisels, Territorial Rights, 2d ed. (New York: Springer, 2009), 101–5CrossRefGoogle Scholar.

27 Perhaps the most straightforward way of characterizing this difference is Hegel's: the property-owner acts on Willkür (arbitary choice) while the sovereign must act on Wille (rational will). But the full significance of this distinction is clear only if one lays out Hegel's philosophy in great detail, which I do not have room for.

28 This is a good place to say something about how the distinction I am drawing bears on the recent literature concerning territorial rights (see for instance Simmons, A. John, “On the Territorial Rights of states,” Philosophical Issues 11 [2001]CrossRefGoogle Scholar, Nine, Cara, “A Lockean Theory of Territory,” Political Studies [2008]Google Scholar, Stilz, Anna, “Nations, States, and Territories,” Ethics 121 [2011]CrossRefGoogle Scholar, Miller, David, “Territorial Rights: Concept and Justification,” Political Studies 60 [2012]CrossRefGoogle Scholar or the writings by Gans and Meisels cited below). In short, I see that literature as primarily concerned with issues that run along a tangent to the ones that concern me here: it is concerned, above all, with relations between states, while my concern is centrally with the relation of a state to its own citizens. How we think of the state-citizen relationship will surely have considerable bearing on how we approach interstate relationships, but the former is importantly different from the latter, and is not well handled by using the same sorts of terms. In particular, I think it is a great mistake to construe the relationship of a state to its citizens in terms of “rights”—that already makes the state look too much like a property-owner (the right to property is after all, for Locke and for most liberals, a paradigm for all rights). A. John Simmons—who initiated the literature on territorial rights with his above mentioned 2001 article—acknowledges the difference between property and sovereignty or jurisdiction but he seems to see only a difference in degree, not in kind, between the two. “When persons subject themselves and their land to the state,” he says, they come to have “a less full property in their land”; he adds that he cannot see why we should not account for “state rights over territory … ‘by subtraction’ from individual natural rights over land and over their persons.” (“On the Territorial Rights,” 318, my emphasis). The idea that property and jurisdiction are different kinds of things, grounded in principles that complement rather than resemble each other, is entirely missing on this account. (For all Simmons' outstanding merits as a Locke scholar, I also think the contrast between the two is more deeply rooted in Locke than his attempt to bring them together: see Section III above.)

A fortiori, there is no hint of the idea that there might be a problem in conceiving of states as having rights against their citizens. And this idea is virtually ubiquitous in the literature that follows Simmons. Cara Nine begins her Lockean theory of territory, for instance, by contrasting property rights with territorial rights: a right to property “give[s] the right holder control over other people's access to the use and benefits from a thing,” she says, while a right to territory “give[s] the right holder the power to establish justice within a particular region.” (“Lockean Theory,” 149) But why should the power to establish justice be construed as a right that the state holds? Should we not say instead that states rightfully “establish justice within a particular region”? The establishment of justice is a duty not a right, and there is no reason to suppose that any institution that happens to carry out that duty has a right to do so. If one group of people tries to establish justice in a particular area but some other group does so first, are any rights of the former violated? It is hard to see why—unless we already have in hand a nationalist story about the sort of groups entitled to rule in an area (something Nine, as it happens, rejects). In any case, surely the group that failed in this task—and indeed the group that succeeded—would not hold a “right to establish justice” against the citizens among whom justice is established. On the contrary: the establishment of justice consists in protecting the rights of those citizens and that cannot be done unless the entity doing it stands, precisely, beyond rights-claims: unless it establishes their rights, rather than having rights of its own that they need to establish. So the idea that the citizens have property rights while the state has territorial rights misconstrues the relationship between the state and its citizens. In the domestic context we do not want to juxtapose rights for the state, as an independent locus of agency, with its citizens' rights; we want rather to contrast the state's duties of jurisdiction with the rights that it thereby protects.

Of course, in international contexts we do talk of states as having rights: against other states, against individuals or groups in other states, and against the international order as a whole. I suggested above that this talk is problematic too, at best a useful shorthand for the rights that the citizens of each state may hold against international institutions, and the citizens of other states. But even if I am wrong about that, or if the shorthand is so useful that we cannot do without it, surely liberals should construe the rights of a state in international contexts on the basis of what states rightfully do domestically. I am inclined to say that only rightful states can possibly have rights, or at least that the rights of a state will be diminished to the degree that it does not act rightfully. But in a rightful state, the sovereign needs to be understood as beyond the realm of rights-claiming that it adjudicates and structures. So the point at which we attribute rights to states should enter our theory only after we have first considered states as entities that, on principle, do not have rights. Many philosophers treat justice in the international arena as different in kind from justice within a state; that certainly seems the proper way to proceed if one is not going to advocate full-bore cosmopolitanism. But if it is the proper way to proceed, then we can understand states as having no rights in one of these contexts, while still assigning them rights in the other. We should not in any case assume that a vocabulary that makes sense in the interstate context works equally well in the domestic one. The territorial rights literature, it seems to me, blurs the two contexts.

29 I am grateful to Colin Bird for pointing out to me the need to clarify what error this sort of conflation might entail.

30 So I may be allowed to use a thing on my own, even to satisfy an arbitrary whim I happen to have, but only if the community allows me to do that. In the early days of kibbutzim, one needed permission from the whole community for any purchase beyond the everyday household items in the kibbutz store.

31 I argue that a substantial basket of welfare goods are a precondition for individual freedom in my Third Concept of Liberty (Princeton, NJ: Princeton University Press, 1999), especially chap. 10Google Scholar. See also Wellman, Carl, Welfare Rights (Totowa, NJ: Rowman & Littlefield, 1982)Google Scholar, and Jacobs, Lesley, Rights and Deprivations (Oxford: Clarendon Press, 1993), chap. 7Google Scholar.

32 In discussion, Loren Lomasky suggested that the Lockean liberalism on which I rely to delineate the state's main features is incompatible with the social-democratic projects I allow for here. These projects, he argued, inevitably become opportunities for one rent-seeking group or another to try to claim the state for its own purposes—to transform the state from a fair provider of conditions of freedom for all into a caretaker of that group's private property. The challenge is a good one—it puts in a nutshell the classic objection of libertarians to welfare-state liberalism—and would require another paper for a full response. But I would stress that welfare-state liberals conceive of the state's public works as in principle following from, rather than contradicting, the “fair umpire” conception of sovereignty I have been laying out; such liberals view public works as intended to enhance the freedom of all (sometimes by solving coordination problems; sometimes by increasing opportunities for citizens whose freedom is limited in the private realm) rather than to promote one group's projects at the expense of everyone else. It is just that welfare-state liberals do not read the facts in the same way that Lomasky does: they do not see public works as inevitably serving the interests of rent-seeking groups, or at least as primarily doing that. I do think that a liberal who agrees with Lomasky about the facts should not support social-democratic projects. No state lives up perfectly to any principle, and it may well be that programs intended to enhance the opportunities of the weak often also become means for one not-at-all weak group to enrich itself at the expense of others. But if that is the primary function of these programs, they are on my account illegitimate.

33 See Julian Franklin's introduction to his edition of Bodin, Jean, On Sovereignty (Cambridge: Cambridge University Press, 1992), especially pp. xiv–xviGoogle Scholar. I follow Franklin in much of this paragraph. A brief, clear summary of the context in which the notion of sovereignty arose can also be found in Morris, “The Very Idea of Popular Sovereignty,” 1–6.

34 See Bodin, op. cit., 103–4.

35 See note 24 above, and text thereto.

36 Outram, Dorinda, The Enlightenment (Cambridge: Cambridge University Press, 2005), 43, 45–46Google Scholar: “If kingship was becoming secularised [during the Enlightenment], it was also losing its ‘proprietary’ character. Few believed, as had Louis XIV, that their territories were theirs in the same way that ordinary men possessed personal property.”

37 Feudal law was a new institution in first-millennium Europe, and we should not presume that all pre-modern legal regimes resembled it. Nevertheless there have been parallels to it in many places and times. The Ottoman Empire, for instance, similarly construed all ownership as located in the first instance in the Sultan and claimed only in reflected and limited form by people lower down in the social hierarchy: “[T]he Ottoman conqueror … considered himself the owner, by conquest, of all the lands he occupied…. The theoretical basis of [Ottoman] land law [thus] conforms to the theoretical basis of other systems of land law, such as … English land law.” (Shehadeh, Raja, Occupier's Law: Israel and the West Bank [Washington, DC: Institute for Palestine Studies, 1985] 23Google Scholar).

38 Muller, Jerry, The Mind and the Market (New York: Anchor Books, 2002), 147Google Scholar.

39 Ibid, 148.

40 Smith, Wealth of Nations, V.i.ix; Kant's presentation of churches as a threat to freedom can be found in many of his writings, but see especially “What is Enlightenment?” (many editions) and The Conflict of the Faculties, trans. Gregor, Mary (Lincoln: University of Nebraska Press, 1979), 47–51 (Ak 29–31)Google Scholar.

41 Smith, Wealth of Nations, book 1, chap. 8, art. 13, p. 84; see also bk. 1, chap. 10 part 100, art. 27–30, p. 145 and book 1, chap. 10, part 100, art. 61, pp. 157–58.

42 See further discussion in my On Adam Smith's Wealth of Nations (Princeton: Princeton University Press, 2004), sec. 57Google Scholar and in Muthu, Sankar, “Adam Smith's Critique of International Trading Companies,” Political Theory 36 (2008)CrossRefGoogle Scholar.

43 Norway, Sweden, Denmark, Greece and Switzerland are but a few of the many countries that blazen a cross on their flag; Great Britain has two crosses on its. Several of these countries also have official churches; virtually all countries, including the nominally secular Turkey, have an official holiday calendar in which the festivals of just one religion appear—even when, as in Malaysia, Egypt, Thailand, or Cambodia, there is a large minority adhering to a different religion. Almost all countries favor the history and literature of a particular ethno-cultural group in their school curricula and their public museums, monuments, festivals, and memorials—again, even where there are large minorities belonging to different ethnic groups (Spanish children do not learn Basque culture; Turkish children do not learn Kurdish culture). Many countries (e.g., Germany, Bulgaria, China) favor a particular ethnic group in immigration, and/or see themselves as the rightful home of members of that group, even if their families have lived elsewhere for centuries. For a good survey of some of these phenomena, see Yakobson, Alexander, “Jewish Peoplehood and the Jewish State, How Unique?” Israel Studies 13, no. 2 (2008)CrossRefGoogle Scholar.

44 On the rights of disadvantaged groups to support for their culture, see Kymlicka, Will, Multicultural Citizenship: A Theory of Minority Rights (Oxford: Oxford University Press, 1995)Google Scholar. On the importance of historical ties to a land, see Gans, Chaim, A Just Zionism (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar and Meisels, Territorial Rights.

45 See Gans, A Just Zionism, 21–22 and Muller, Jerry, “Us and Them: The Enduring Power of Ethnic Nationalism,” Foreign Affairs (2008)Google Scholar.

46 For an early emphasis on this point, in the Israeli-Palestinian context, see Leibowitz, Yeshayahu, “Right, Law and Reality” in Leibowitz, , Judaism, Human Values, and the Jewish State, ed. Goldman, E. (Cambridge: Harvard University Press, 1992)Google Scholar.

47 Mawat land, for instance—defined by Ottoman law as further from any village “than the human voice can be heard” (Shehadeh, 24)—which was not held by title deed and which comprised fifty to sixty percent of Palestine as late as 1921. See Stein, Ken, The Land Question in Palestine, 1917–1939 (Chapel Hill: University of North Carolina Press, 1987), 12–13Google Scholar.

48 I have in mind above all the notorious Absentees Property Law of 1950. See discussion in Raja Shehadeh, Occupier's Law, 34–5, and Gorenberg, Gershom, The Unmaking of Israel (New York: HarperCollins, 2011), 52–53, 204–5Google Scholar.

49 Consider, for instance, Herbert Samuel's concern to protect the moral rights of Arabs to lands they inhabited even when they did not hold legal rights to it: Tyler, Warwick, State Lands and Rural Development in Mandatory Palestine, 1920–1948 (Brighton: Sussex Academic Press, 2001), 21–22Google Scholar.

50 Gorenberg, Unmaking of Israel, 204.

51 Giving priority to persecuted Jews, at least. Even Shlomo Sand thinks that a law granting persecuted Jews a right of immigration to Israel “would not conflict with the basic principles [of] … liberal democracy,” given the fact that so many Israeli citizens “feel kinship and a common historical destiny” with fellow Jews who suffer discrimination. (Sand, , The Invention of the Jewish People, trans. Lotan, Y. (London: Verso, 2009), 287; see also 312Google Scholar.

52 Compare Cohen-Almagor, Raphael, “Zionism—A Just Revolution,” Ethical Perspectives, (2011): 652Google Scholar: “Arabic is one of the two official languages of the State of Israel. Therefore it should enjoy a dominant status and have the importance it deserves. Gans argues that the right to self-determination does not require that the language of those enjoying linguistic pre-dominance in some geographical areas necessarily be the main language of the entire state ([A Just Zionism,] 143); nor should it be the only language. I have argued that Hebrew and Arabic should be taught at every primary and high school in addition to English.”