The Mystery of Territory

FERNANDO R. TESÓN
SOCIAL PHILOSOPHY AND POLICY 32.1 (2015): 25-50

Abstract: This essay argues that the territorial rights of states derive from the property rights of the individuals that make up those states. The argument draws from the Lockean tradition of justification of political powers. Persons in the state of nature have natural rights. Those rights are first-order substantive rights (the right to property), and second-order executive rights (the right to enforce the right to property.) In the social contract, individuals transfer to the state their executive rights, not their substantive rights. The state can thus define the boundaries of property rights and adjudicate property disputes, but does not legitimately own land itself. The article discusses and rejects, for deontic and consequentialist reasons, positions that justify collective and state ownership of territory. Some important consequences follow from the argument: First, no actual state has territorial rights, since no actual state wields delegated powers in land. Second, notwithstanding the preceding conclusion, actual states have an obligation to exercise their (putative) territorial powers consistently with the respect for private property.

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