Territory and Justice: a research network

October 14, 2009

Territory and jurisdiction, a puzzling argument

Filed under: Uncategorized — Chris Bertram @ 4:48 pm

Just to get us started, I thought I’d share my puzzlement at an argument about territory and jurisdiction that is often trotted out as if it were a knock-down move establishing that territory is a different kind of thing from property, but looks inconclusive to me. The argument is due to Lea Brilmayer in her “Consent, Contract, and Territory”, Minnesota Law Review 74:1 (October 1989), pp. 1-35, but lots of people use it. Here’s the version from Christopher W. Morris, An Essay on the Modern State, just because I have Morris’s book on my desk and not Brilmayer’s paper:

It is the state’s authority that is territorial, and it is not possible to understand this in terms of property rights. The problem …. is that the state’s authority is not an ownership relation; it is jurisdictional.  When Connecticut acquires property in land is Massachusetts, it does not enlarge its territory or diminish that of its neighbour. The land remains under the jurisdiction of Massachusetts, subject to its laws. Similarly, if Canada acquired a large piece of land in Florida (or a wealthy Canadian willed his Florida estate to the Canadian state), it would not thereby come to be part of Canada. Property rights, as legal systems currently understand them, do not include full jurisdictional powers. That is, in acquiring property in land, one is not ordinarily understood to acquire the sorts of powers over it that states claim over their territory. (262-3)

Now it may be that a lot here hangs on phrases like “as legal systems currently understand them”, but the supporting example, at least seems unpersuasive. There’s nothing unusual about unpicking the various incidents that property is made up of, having partial ownership rights in land or property, etc. If Mr A owns the freehold on a building, and sells a 99 year lease on a part of it to Mr B, whilst requiring B to pay various service charges and ground rents, get permission for structural alterations etc, it is true that A and B both have property rights in (part of) the building. True, the rights they have differ, but no-one would deny that the right that each has is a form of property.  Of course this analogy doesn’t establish that territory is a form of property, but it does, I think, show that the example of states buying land within one another’s territory is not sufficient to establish that it is not.



  1. I’m not at all sure I get how your remark here address the issue. What I see Morris doing is just noting that even if a state bought land in another state that wouldn’t establish that the second state has territorial control over the land it’s bought, at least by itself. (It might, in some instances, as when the US bought Alaska from Russia, but that was via a treaty to transfer sovereign control, not a normal sale of land.) I don’t think he’s meaning to make a very deep point here, but just the straight-forward one that ownership of land by itself doesn’t imply sovereign jurisdictional control, and wouldn’t even if the land were bought by another state. (Or, that since ownership in the normal sense doesn’t imply sovereign jurisdictional control, as we can see from our normal practices, sovereign jurisdictional control must be something different than ownership in the normal sense.) But how is the fact that ownership interests can be divided among different people affect that? Is your argument that we should think of the state as owning the land it controls and then just transferring some of the property interests to the nominal owners of the land? I guess we could say that, but then we’re now talking about a new sense of ownership, I think, one that’s pretty different from our normal sense, and if we then draw conclusions about this special, new sense of ownership based on what we think about our normal sense of ownership, we’ll be committing a fallacy. If that’s not what you’re doing, I must admit that I don’t get it.
    (As for me, I think the proper way to think of a state’s relationship to its territory is that it holds it in a sort of fiduciary trust for current and future citizens. Not exactly like that, of course, but something along those lines. But a trustee doesn’t have an ownership interest in the item held in trust, so states don’t own their territory.)

    Comment by Matt — October 14, 2009 @ 5:49 pm | Reply

  2. Thanks for visiting Matt.

    Morris’s remarks are directed against individualist Lockean accounts of territory, and the buying and selling example is supposed to convince us that those accounts are just obviously wrong. Well they may be, but I can’t see that the example should convince us of that.

    I’m a bit puzzled by your reference to trusts though. You know more legal theory than I do, but I’d have thought that if a state’s relationship to its territory was like the one trustees have to a piece of property they are managing for the benefit of others, that would tend to establish rather than refute that territory is a form of property. But maybe I’m taking your analogy too far.

    Comment by Chris Bertram — October 14, 2009 @ 6:31 pm | Reply

  3. Just to be clear on your claim, Chris, are you arguing that the authority of the state with jurisdiction (Florida or Massachusetts in Morris’s examples) is not different in kind from the authority of a landowner (Mr. A in your example)? The state has the same general sorts of authorities and rights as a landowner– exclusion, control of use, etc.–but perhaps a slightly different array and different means of enforcing them?

    Comment by TheBrucolac — October 15, 2009 @ 2:05 am | Reply

  4. There’s a sense of “property right” — the “private property” sense — which, I take it, Locke is trying to explain and Mr A in your example has with respect to the building. Mr B clearly does not gain private property in the building through the lease: he doesn’t become its owner, and the lease does not diminish Mr A’s private property in the building.

    On the other hand, there’s a legal sense of “property right” — the “property interest” sense — something like a right to recover or an actionable claim in court, which Mr B does have in your example. But this is a very broad notion. Simply concluding an agreement generates a property interest in whatever the agreement entitles you to — even if, for instance, it were a treaty that entitled you to the sacrifice of another party’s nuclear weapons. Obviously this is not the object of private property.

    I think that it would be unexceptionable to treat a recognized territorial right such as Canada’s claim to Ottawa as an instance of a property interest. But this is just to say that Canada has an actionable claim of some sort if anyone does anything to Ottawa without the Canadian state’s permission. But this is not the private property sense of property right that I take it Lockeans mean when they offer arguments of the familiar form. That intuitive sense of property right is narrower and stronger.

    Comment by Avery Kolers — October 15, 2009 @ 3:28 am | Reply

  5. You’re right, I think, to suspect that a lot hangs on “how legal systems currently understand them.” At least in medieval (and into early modern) times, the difference between ownership and jurisdiction was often very blurry. The term ‘dominion’ could (and often did) cover both, and one frequently finds the idea that the state has a kind of overarching property in its territory in which individual owners only have partial rights (this was sometimes referred to as ‘dominium eminens’, and the idea of ‘dominium eminens’ was invoked to justify the state’s power of taxation or expropriation). To think of the situation in that way makes a lot of sense, naturally, in a feudal context, where rights over land that for us would belong to the bundle of property are inextricably linked with jurisdictional rights, where rights of both kinds (property and jurisdiction) are divided between several layers of hierarchy, and where society’s productive power is perceived as being agricultural.

    Of course, one might argue that the political systems that were based on such ideas weren’t really states (or ‘modern’ states). But in general, these facts seem to support the view that it is not an essential fact about statehood that a state’s claim to jurisdiction is as sharply distinct from rights of property as Morris (whom I haven’t myself read) suggests.

    Comment by lars — October 15, 2009 @ 4:53 am | Reply

  6. On another note, is it a frequent practice in the real world for states (acting directly in that capacity and not through corporations they own, etc.) to acquire property in land in other states? The most prominent example would appear to be the property in the grounds of embassies and suchlike (however, those are small parcels of land and they are, in any case, subject to a very peculiar legal regime that seems to involve the view that the foreign state is not a property owner like any other). But I doubt that, for instance, the Czech Republic or Poland would look favourably on the state of Germany buying large tracts of land in their territory for purposes unrelated to the necessities of diplomatic representation.

    Comment by lars — October 15, 2009 @ 5:18 am | Reply

  7. #3 No, I’m simply saying that the fact that different levels of having a right in the same object can all be termed property casts doubt on the persuasiveness of the Morris/Brilmayer et al example. I take it that the point of the example is to suggest that a category mistake has been committed, but it isn’t clear that it establishes that. To be fair, (#5) Morris does mention, a little earlier, the concept of dominion, but suggests that the modern understanding is quite different. (And #6 he discusses embassies as a possible counterexample, but rejects it as sui generis.)

    Comment by Chris Bertram — October 15, 2009 @ 7:58 am | Reply

  8. Lars: I don’t know about states in the international-law sense, but within the US, it is quite common for one government to own land within the territory of another. For example, the City of San Francisco owns San Francisco International Airport (and the land under it), which lies entirely in San Mateo County, outside the City limits. And the City of Los Angeles (through its Department of Water and Power) owns hundreds of thousands of acres in Mono and Inyo Counties, on the eastern side of the Sierra Nevada. There are disputes about the extent to which these lands are subject to the land-use regulations of the “host” government, but it is never suggested that the behavior of people on the lands is subject to the ordinances of the owning government.

    Chris: So for you, it could still be established that the “jurisdictional” level of authority _is_ of a different category than a property right? I ask because I intuit that is so, but cannot figure out why.

    Comment by TheBrucolac — October 15, 2009 @ 9:08 am | Reply

    • I suppose the obvious reply to this would be to say that state governments aren’t sovereign, which means that they aren’t really relevant to the issue at hand.

      I’m not an international lawyer either. But from what little I know, I remember that international law is (or at least used to be) committed to the maxim ‘par in parem non habet iurisdictionem’. The sovereign equality of (real) states entails that one state does not have compulsory jurisdiction over another.

      On a literal reading, this principle seems to imply that if state A acquired property in land in state B, state B would no longer be able to exercise full jurisdiction over the land acquired by A, at least not without A’s prior consent, since to do so would be for B to claim compulsory jurisdiction over A. Of course, since B has a pressing interest in preventing its jurisdiction to be hollowed out in this way, it would normally have a reason to block A from acquiring property in its territory.

      The special status of embassies might be a reaction to that quandary. The receiving state has to accept a limited infringement on its jurisdiction, to honour ‘par in parem’, if diplomacy is to be possible at all. But the acquisition of property on the part of A in the territory of B should be limited to this special purpose. If this is the thinking originally behind the special status of embassies (I’m just speculating here), it would be wrong to treat the case of embassies as a marginal and irrelevant exception.

      Of course, states presumably have the power to waive their rights under ‘par in parem’. Two sovereign states might contract with each other, to the effect that one will be allowed to acquire property in the other’s territory, with the jurisdiction remaining in the hands of the state whose territory the property is in. If real world examples of state ownership of land in other states fall under such treaty-based regimes, they might not show what Morris thinks they show.

      Comment by lars — October 15, 2009 @ 2:53 pm | Reply

  9. So, why might one think territory *was* a kind of property? Grant that the Morris example shows no more than that it’s not the same thing as a freehold estate. But more generally, unlike property, territory conveys no right to the use or fruits of the land, only a power to restrict what’s done on it. Sure, some property-owners, such as lessors, have no right to use the land themselves, but lessors are entitled to rent, which is a kind of fruit. Granted also that control is something property-owners do have, and that the bundle of property rights can be shared out in various ways. But the state’s control is broader than property-owners’: it covers anything people do on the land, not just with it or to it, and the sanctions include fines and jail for disobedience per se, rather than being limited to expulsion and compensation for damage.

    So I’m a bit puzzled as to why one would want to assimilate the state’s power of control of its territory to property, rather than treating it as a separate kind of thing. I guess that’s off-topic for this post, but I’m curious.

    Comment by Adrian — October 15, 2009 @ 10:39 am | Reply

  10. #9 “unlike property, territory conveys no right to the use or fruits of the land”

    Well I’m not sure that’s obviously true, since I think I’m right in saying that various UN conventions etc declare that the natural resources on a territory (such as oil) belong, collectively, to the people of that territory.

    As to your question … well I guess there might be at least two reasons why someone might think that:

    1. The Lockean idea that a state’s jurisdiction over its territory derives from rights ceded to it by individual property-holders.

    2. The idea, common in popular discourse about, say, immigration, that a state’s territory belongs to its people and that, hence, they have the right to keep non-member out if they choose.

    Neither 1 nor 2 is well-founded, in my view, but that wasn’t your question.

    Comment by Chris Bertram — October 15, 2009 @ 1:44 pm | Reply

  11. #10 “…I think I’m right in saying that various UN conventions etc declare that the natural resources on a territory (such as oil) belong, collectively, to the people of that territory.”

    You are right, I believe, but those are treaties–reciprocal agreements–rather than incidents of territory as such, no? Certainly states *can* have property rights in their territory, alongside their sovereign control. Someone above mentioned the feudal system (still technically preserved in English law) whereby the state is the ultimate owner of land and other owners have subsidiary estates. And they can always just buy land. But I took the question to be about territory per se.

    Re 1. and 2.: I was hoping for good reasons. 😉 Both views, it seems to me, face the difficulty that sovereign control conveys quite a different set of rights and powers from ownership, even if they overlap somewhat. Obviously the Lockeans have things to say about that but number 2 looks hopeless.

    Re your comment on #8, it’s worth noting that the legal doctrine of sovereign immunity, which implements the principle of comity/equality you refer to, generally does not apply to commercial operations of foreign states (“jure gestionis”, as opposed to “jure imperii” which are exempt from jurisdiction). Not all countries take this approach, but it seems fair to say it’s the dominant position. See generally Brownlie, Principles of Public International Law (6th ed. 2003), 323ff.

    Comment by Adrian — October 15, 2009 @ 3:59 pm | Reply

  12. Okay, I see a bit more now what Morris is up to. I guess I don’t find that bit of the Lockean story very plausible so just don’t worry about it that much.

    On trusts, I should say that, while I know a bit about property law in general, I’m no expert in the field, and what I know about the actual law of trusts in particular comes from taking a bar exam review course on the subject, something that taught me just enough to know that if I had a legal question in the area I’d want to consult someone who was an expert. And, I don’t want to make the analogy too literally. But there does some to be some sort of analogy- I’m fairly attracted to the idea that we might think of the state (as an entity) having a fiduciary relationship towards its territory, where it has the duty to preserve and protect it for, 1) the use and benefit of current and future citizens, 2) its legitimate share of global duties of justice, whatever they turn out to be on the right theory of global/international justice. My understanding is that in a normal trust, beneficiaries of the trust have a property interest in the item preserved, but of a limited sort, but the trustee doesn’t have a property interest in the item preserved. But, the property interest is limited by the terms of the trust. If we don’t take this too literally I don’t have a problem using this sort of idea to understand the relationship between some territory, a state, and the current and future citizens. If we want to say there’s a property interest here, it would be held by the current and future citizens, though, and not the state. But since it seems to me that calling the relationship between citizens and the territory of a state one of having a property interest is as likely to mislead as to clarify, I’d like to leave it out, though I do think the analogy with a trust is useful.

    Comment by Matt — October 15, 2009 @ 4:20 pm | Reply

  13. When a person buys, sells or owns land in a state, they are governed in this by the laws of the state in which the land is. Surely this means that any land that was sold to a company or even state party overseas would still be sold and held under the regulations of the state under whose jurisdiction the piece of land was to begin with (and therefore, under which it remains). This means that there must always be two layers of jurisdiction – that of the owner, and then that of the state that explains what it is to be the owner. If land is won or lost in war or held for diplomatic reasons, this is not owning in the same way, as it does not have these two levels. I guess this means that the state cannot be the sort of thing that buys or sells land (as this would join the two levels) which, given the above examples, is not strictly true. Therefore, I suggest that the state, in so far as it makes regulations about owning, buying, and selling, and many other things, is only the institutions of state. Then, the state insofar as it holds ownership over areas of land, is merely a proxi for the people of the state. Does this make sense? I am not a lawyer and these are just tentative thoughts provoked by the foregoing discussion.

    Comment by Tendayi — October 15, 2009 @ 4:21 pm | Reply

  14. #12 Trusts are neither hound nor hare. The trustee owns the trust property in law, but in equity can take no benefit from it. That distinction, and the trustee’s ownership, was a little more meaningful when the two systems were enforced by separate courts, but since the 1870’s (in England) the same courts have administered both law and equity and the trustee’s ownership interest is pretty much fictional. It is technically preserved, though, and it can be useful, e.g. to allow anonymous ownership through a nominee.

    I suppose whether that helps or hurts your analogy depends on whether you think the trustee “really” has an ownership interest.

    Comment by Adrian — October 15, 2009 @ 4:36 pm | Reply

  15. Adrian, thanks for the reference!

    I wonder if there aren’t two different ways to approach the problem of the distinction between property and jurisdiction. The Morris-strategy seems to be to argue that property in land does not confer jurisdiction over land, hence the two must be distinct, such that jurisdiction has nothing to do with property. This line of argument, this was our host’s original point, if I understand correctly, is vulnerable to the charge that rights of jurisdiction may (and typically will) include rights to appropriate at least a part of the ‘fruits of the land’, which makes them look like (fragments of) property rights.

    But there’s another strategy for arguing that there’s a difference between jurisdiction and property that doesn’t seem affected by that charge. Property rights are traditionally associated with the idea that the owner can ‘use and abuse’ his property as he sees fit (as long as he does not cause damage to others). Rights of jurisdiction, on the other hand, do not give those who exercise them on behalf of the state a discretionary power to act as they see fit. Rather, they are powers to be used with a view to the common good.

    So the state exercising jurisdiction is unlike Mr. A in Chris’s example in important respects. Mr. A could sell his property in the house to Mr. C, for instance, if he prefers the money offered by Mr. C to being owner of the house. But we would presumably resist the idea that the state has the power to alienate its jurisdictional rights (including the right to appropriate a part of the ‘fruits of the land’) at its discretion. Jurisdictional rights are normally thought of as inalienable and attempts to sell them (on the part of those who represent the state) would normally be considered as corrupt confusions of public and private right. Interestingly, an absolute prohibition of the alienation of rights of jurisdiction is one of the few explicit limits that even Hobbes puts on the otherwise absolute powers of the sovereign. Using this second strategy might suffice to show that property and jurisdiction are distinct even if the Morris-strategy turns out to be vulnerable.

    Comment by lars — October 15, 2009 @ 6:40 pm | Reply

  16. On Chris’ original post: Even if the example of states buying land within another’s territory is not sufficient to establish that territory is not a form of property, there are at least two questions:

    1) Brilmayer et al’s point might not be to deny that territory is a “form” of property, if property is understood in a sufficiently broad way, as your seem to do in your example with Mr. A and B. You seem to think that as long as one has substantial interests in a thing or an area grounding claims on others, then one has a form of, or an aspect of a, property right to that thing or area. But this seems too vague, since the point of the property/jursidiction distinction precisely is to distinguish among different interests, including whether the interest in question is taken to ground a liberty to use and abouse the thing or area in question and a claim rights on others to let one do so, or whether it also, or rather, grounds a power to determine who has such liberties and claims (as well as, perhaps, an immunity agaist having these liberties, claims and powers changed by others). So your tentative counter example may not address the supposed distinction in the right way.

    2) Even if the example did address the property/territory distinction in the right way, isn’t the right example to consider another one, namely one wherein one state gets full property rights over the entire area constituting the territory of another state. (One might think of a case where the wealthy Canadian is _extremely_ wealthy and buys _all_ of the US and then begets it all to the government of Canada – or a kind of “hostile take-over” of the Saudis of all American real estate.) However legal systems currently understand property and jurisdictional rights (and this is ambigous in an important way, since two different legal systems are involved in this example – which might prove the point made by the distinction indirectly), the question is whether we think that the Canadian state would in this example get full jurisdictional rights over the entire US? Insofar as we think it wouldn’t, there has to be a difference between property and territory.

    Comment by laegaard — October 15, 2009 @ 8:58 pm | Reply

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