The Irrelevance of History: In Defense of a Pure Functionalist Theory of Territorial Jurisdiction

• Date: 01 September 2020
• Published date: 01 September 2020
• Author: Kjartan Koch Mikalsen
• DOI: http://doi.org/10.1111/raju.12294

© 2020 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

Ratio Juris. Vol. 33 No. 3 September 2020 (291–306)

The Irrelevance of History:

In Defense of a Pure Functionalist

Theory of Territorial Jurisdiction

KJARTAN KOCH MIKALSEN*

Abstract. This article defends a pure functionalist theory of territorial jurisdiction according to

which a state’s moral right to rule over a territory rests on its present moral performance as a

freedom-enabling institutional structure. A common objection against functionalist theories is

that they cannot explain why it matters that one particular state has exclusive jurisdiction over

a certain territory. This deficiency is often associated with the annexation challenge, which is

supposed to show that functionalist theories cannot deal adequately with cases of annexation.

Against this line of criticism, I argue that the pure functionalist justification of the right to rule is

capable of tackling challenges related to particularity and annexation. First, the pure functional-

ist theory explains why it is important that one particular state rules over a given territory. It

also tells us what set of laws and what government we should comply with. Second, the pure

functionalist justification of the right to rule entails sufficient conceptual resources to account

for the wrongdoing involved in annexation. Although the theory deems past wrongs irrelevant

for the justification of the right to exercise jurisdiction on a territory, it is adequately sensitive

to historical injustice.

1. Introduction

Most of the earth’s surface is divided into territorially bounded states, each of which

claims an exclusive right to exercise jurisdiction on their own territories. The right to

exercise jurisdiction is the right to make, apply, and enforce laws. As such, the right

to territorial jurisdiction raises the question of political legitimacy, which concerns a

government’s moral right to rule or its moral right to impose legal norms on its sub-

jects. In line with a common view, I take the legitimacy of a government to correlate

* I would like to thank Kim Angell, Kristian Skagen Ekeli, Erik Oddvar Eriksen, Christopher

Lord, Øystein Lundestad, Alexa Zellentin, and an anonymous referee for valuable comments

and suggestions. Thanks also go to the participants in the political theory group at the 2017

conference of Norwegian political science, the workshop Conceptualizing Global Justice, and the

conference Philosophy of Borders: Nations, States, and Immigration, for stimulating responses and

discussions after presentations of draft versions of the article. The article was written at the

ARENA Centre for European Studies, University of Oslo, as part of the project GLOBUS:

Reconsidering European Contributions to Global Justice, which has received funding from the

European Union’s Horizon 2020 research and innovation program under Grant Agreement No.

693609. The article reflects the author’s view, and neither the Research Executive Agency nor the

European Commission is responsible for its content.

Kjartan Koch Mikalsen292

Ratio Juris, Vol. 33, No. 3© 2020 The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

with a duty to obey on the part of those who fall under its jurisdiction. Accordingly,

the question of political legitimacy is the question of how to justify a government’s

right to oblige others through the imposition of contingent and coercive norms. Why

does the government exercising jurisdiction over the geographical area on which we

reside and interact with others have a right to impose legal norms on us, and why

are we obliged to comply with the legal prescriptions and prohibitions determined

by this government?

In this article, I argue that it is possible to justify an exclusive right to rule over a

territory on a purely functionalist basis. Although there are different types of func-

tionalist theories of territorial jurisdiction, their common denominator is that they

ground a state’s right to rule over given territories in the present performance of es-

sential moral functions. They differ from past-oriented theories, such as voluntarist

or nationalist theories, for which legitimate rule over territory depends at least partly

on the historical connection between a state and its territory. According to voluntarist

theories, a state has the moral right to rule over a territory only if this territory con-

sists of land to which those who have consensually subjected themselves to it had

prior rights to ownership. According to nationalist theories, a state is the legitimate

ruler over a territory only if there is a morally significant historical attachment be-

tween this territory and the national group represented by the state. By contrast,

functionalist theories justify a state’s rule over territory as a necessary correlate to the

state’s present moral performance.1 What matters are the merits of a state’s accom-

plishments here and now. Inasmuch as a state performs satisfactorily, exclusive rights

over territory follow, because the essential moral functions of states must be carried

out territorially.

We might distinguish between functionalist theories that are broadly consequen-

tialist and functionalist theories that are broadly Kantian (cf. Simmons 2013, 2016).

For consequentialists, the essential function of states typically is to establish an insti-

tutional structure that promotes or maximizes some kind of moral good (e.g., welfare

or happiness). For Kantians, the essential function of states typically is to establish

an institutional structure that protects the fundamental rights of individuals and that

facilitates fair terms of interaction or a just distribution of basic goods. I will defend

a functionalist theory of the Kantian variety, and I call it a pure functionalist theory

because of its monistic structure. The basic idea of this theory is that states organiz-

ing public legal institutions are necessary in order to establish conditions that enable

persons to interact on terms of equal freedom. The theory proceeds from the single

normative idea—expressed in Kant’s principle of right—that all individuals have an

equal right to freedom, and the justification of an exclusive right to exercise territorial

jurisdiction brings in no normative ideas extraneous to this idea.

The aim of this article is to defend the pure functionalist theory against the com-

mon objection that functionalist theories cannot explain why states should have ex-

clusive rights to rule over particular geographical areas. At best, the critics argue,

theories of this kind can tell why we need states, but they do not tell why it matters

that one particular state has exclusive jurisdiction over a certain territory. In order to

demonstrate this alleged deficiency, critics often appeal to the annexation challenge,

1 For the tripartite division into voluntarist, nationalist, and functionalist theories, see, for in-

stance, Simmons 2016. For earlier uses of the term functionalist for the kind of theory that I de-

fend, see Moore 2015 and Stilz 2011.