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

Kjartan Koch Mikalsen

doi:10.1111/raju.12294

Abstract

AbstractThis 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 functionalist 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.

Highlights

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 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 subjects
I have argued that a pure functionalist theory of political legitimacy is capable of adequately accounting for particularity and the wrong of annexation

Summary

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. Because of their emphasis on present performance of general moral functions, functionalist theories presumably lack conceptual resources to account satisfactorily for the wrongdoing involved in military conquest 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. According to the pure functionalist theory, a state’s rightful powers extend to everything required by the performance of its moral function, but no state can justifiably pursue purposes incoherent with, or unnecessary for, its performance as a freedom-enabling institutional framework This restraint rules out annexation, because annexation of territory is both extraneous to and in conflict with the moral purpose of legitimate states.

The Antifunctionalist Critique

The Pure Functionalist Case against Annexation

Concluding Remarks