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Published online by Cambridge University Press: 01 January 2020
As an Israeli writing at the turn of the twenty-first Century, I have become accustomed to hearing the word ‘settlement’ used by liberals almost invariably as a derogatory term. The Jewish settlements to the west of the Jordan river, now populated by close to a quarter of a million Jews, are often said to be a central obstacle to peace in the Middle East, as well as being immoral in and of themselves. Consistent liberals realize that this attitude poses a problem for the endorsement of the Zionist effort altogether, since settlement has been a central tenet of this doctrine from the start and the main practical tool for achieving its goals within contested territories. It was also the primary apparatus for achieving Western control over North America, Australia, and New Zealand, wholly at the expense of the aboriginal inhabitants of those places. This, too, is the source of a great deal of contemporary liberal breast-beating.
1 For a discussion of various historical arguments, see Gans, Chaim ‘Historical Rights — The Evaluation of Nationalist Claims to Sovereignty’ Political Theory (2001) 29 58–79;CrossRefGoogle Scholar Gans, Chaim The Limits of Nationalism (Cambridge: Cambridge University Press 2003), ch. 4, 97–123;CrossRefGoogle Scholar Lyons, David ‘The New Indian Claims and Original Rights to Land’ Social Theory and Practice 4.3 (1977), 249;CrossRefGoogle Scholar Sher, George Approximate Justice — Studies in Non-Ideal Theory (Maryland: Rowman & Littlefield 1997), esp. chs. 1 & 3;Google Scholar Simmons, John A. ‘Historical Rights and Fair Shares,’ Law and Philosophy 14 (1995) 149-84;CrossRefGoogle Scholar Waldron, Jeremy ‘Superseding Historic Injustice,’ Ethics 103 (1992) 4–28.CrossRefGoogle Scholar On the issue of corrective justice, see also Meisels, Tamar ‘Can Corrective Justice Ground Claims to Territory?’ The Journal of Political Philosophy 11.1 (2003) 65–88.CrossRefGoogle Scholar For an egalitarian argument see Steiner, Hillel ‘Territorial Justice,’ in Lehning, P.B. ed., Theories of Secession (London and New York: Routledge 1989), 60–70Google Scholar
2 Some readers might question the move from Lockean arguments supplying grounds for private property rights to the justification of nations’ sovereignty over territory. While sovereignty and property are admittedly two distinct concepts, they are nevertheless sufficiently related and mutually relevant in order to enlist the one as constructive food for thought, as regards the justification of the other. The two issues are closely connected enough to suggest that arguments originally formulated to protect property rights, such as the Lockean arguments invoked here, can be drawn on in an attempt to shed some light on issues concerning territorial sovereignty. Both are forms, or different aspects, of ownership rights. Note also that a vital aspect of sovereignty rights is the Overall control of property within one's jurisdiction.
3 John Locke, The Second Treatise of Government, ch. 5, par. 25-7
4 For a detailed dismissal of nations’ ‘first occupancy’ arguments, see Gans, Chaim The Limits of Nationalism (Cambridge: Cambridge University Press 2003), 105-9;CrossRefGoogle Scholar see also Waldron, Jeremy ‘Superseding Historic Injustice,’ Ethics 103 (1992) 4–28,CrossRefGoogle Scholar at 28, where the author appears to dismiss ‘initial acquisition’ arguments voiced by aboriginal nations out of hand, reducing them to simplicities such as ‘first come, first served,’ and ‘we were here first.'
5 See Waldron, Jeremy The Right to Private Property (Oxford: Clarendon Press 1988) 184-91;Google Scholar ‘Two Worries About Mixing One's Labour,’ The Philosophical Quarterly 33 (1983) 37-44.
6 Waldron, The Right to Private Property, 191Google Scholar
7 Locke, par. 28, 37 42, 43
8 Ibid, par. 42; later, Locke introduces a similar comparison with regard to land, par. 23.
9 Locke, par. 32-45
10 Waldron, The Right to Private Property, 193Google Scholar
11 Locke, par. 40, 43
12 Waldron, The Right to Private Property, 193Google Scholar
13 Locke, par. 41, 43
14 Waldron, The Right to Private Property, 193;Google Scholar Waldron, ‘Two Worries About Mixing One's Labour,’ 37–38, 44.Google Scholar Discussing Locke's ‘Labour Theory of Value,’ Waldron points out that this theory ‘can be expressed independently of the “mixing one's labour” doctrine,’ and therefore ‘is not affected by the latter's incoherence, and can stand by itself.'
15 Nozick, Anarchy, State, and Utopia, 175Google Scholar
16 Waldron, The Right to Private Property, 192Google Scholar
17 Locke, par. 42. For a variety of critiques of Locke's cultural bias as regards the appropriate use of land, see Tully, James ‘Rediscovering America: The Two Treatises and Aboriginal Rights,’ in Tully, James An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press 1993), 137-76;CrossRefGoogle Scholar Bishop, John Douglas ‘Locke's Theory of Original Appropriation and the Right of Settlement in Iroquois Territory,’ Canadian Journal of Philosophy 27.3 (1997) 311-37;CrossRefGoogle Scholar Moore, Margaret ‘The Territorial Dimension of Self-Determination,’ in Moore, Margaret ed., National Self -Determination and Secession (Oxford: Oxford University Press 1988), 134-57,Google Scholar esp. 148-9; Margaret Moore, The Ethics of Nationalism, 181-4.
18 Locke, par. 27
19 Waldron, ‘Enough And As Good Left For Others'; Waldron, The Right to Private Property, 209-18
20 Locke, par. 37; Waldron, ‘Enough And As Good Left For Others,’ 323Google Scholar
21 In ‘Rediscovering America,’ Tully points out that, in reality, the English colonists of America, and presumably Locke himself, saw their settlement project as leaving ‘as much and as good’ for the natives of that continent. He quotes one of the prominent colonists as ‘enunciating a principle similar to Locke's proviso’ when he wrote that 'if we leave them [Native Americans] land sufficient for their use, we may lawfully take the rest, there being more than enough for them and us.’ Tully, ‘Rediscovering America,’ 151 (in reference to The Winthrop Papers)
22 Locke, par. 27
23 For a discussion of Locke's Efficiency based Claims, see Meiseis, Tamar ‘“A Land Without a People“: an Evaluations of Nations’ Efficiency based Territorial Claims,’ Political Studies 50.5 (2002) 959-73.CrossRefGoogle Scholar
24 Tully, ‘Rediscovering America,’ 140-1, 143-4, 147, 159; Bishop, ‘Locke's Theory of Original Appropriation,’ 311, 329
26 Tully, ibid., ‘Rediscovering America,’ mainly on 139-66. Note that, in this historical connection, the property arguments advanced by Locke attached themselves to collectives as well as to individuals, as Locke notoriously defended not only individual colonists’ property claims but also the alleged rights of the British crown over the colonies established by its nationals in North America (Tully, 165).
27 Tully, ibid., ‘Rediscovering America,’ throughout, esp. on 175-6; Bihop, ‘Locke's Theory of Original Appropriation,’ throughout, esp. on 312
28 See supra n. 1.
29 Miller, Citizenship and National Identity (Cambridge, MA: Polity Press 2000), 116-17.Google Scholar Emphases added.
30 I refer here to an entire family of theories grouped together under this collective name. Prominent examples thereof are MacCormick, Neil ‘Liberal Nationalism and Self-Determination’ in Clarke, Desmond M. and Jones, Charles eds., The Rights of Nations — Nations and Nationalism in a Changing World (Cork: Cork University Press 1999) 65–87;Google Scholar Tamir, Yael Liberal Nationalism (Princeton, NJ: Princeton University Press 1993);CrossRefGoogle Scholar Miller, David On Nationality (Oxford: Clarendon Press 1995);Google Scholar Moore, Margaret The Ethics of Nationalism (Oxford and NY: Oxford University Press 2001);CrossRefGoogle Scholar Gans, Chaim The Limits of Nationalism (Cambridge: Cambridge University Press 2003).CrossRefGoogle Scholar
31 For the most sophisticated account of historical interests in territory see Chaim Gans’ ‘right to formative territories’ argument, supra note 1.
32 Miller, Citizenship and National Identity, 196,Google Scholar Miller's n. 14, emphasis added. As I understand it, Miller presents occupation and transformation as cumulative requirements, both necessary conditions for control.
33 Both David Miller and Jeremy Waldron acknowledge and resign themselves to similarly morally hazardous conclusions on related issues. See Miller, Citizenship and National Identity, 196,Google Scholar ibid.; and (though to a lesser degree of acceptance) Waldron, Jeremy ‘Superseding Historical Injustice,’ Ethics 103 (1992), 4–28,CrossRefGoogle Scholar at 25.
