Locke on Territorial Rights
| Published date | 01 August 2015 |
| Date | 01 August 2015 |
| DOI | 10.1111/1467-9248.12106 |
| Author | Bas Van der Vossen |
| Subject Matter | Article |
Locke on Territorial Rights
Bas Van der Vossen
University of North Carolina Greensboro
Most treatments of territorial rights include a discussion (and rejection) of Locke. There is a remarkable consensus
about what Locke’s views were. For him, states obtain territorial rights as the result of partial transfers of people’s
property rights. In this article, I reject this reading. I argue that (a) for Locke, transfers of property rights were neither
necessary nor sufficient for territorial rights and that (b) Locke in fact held a two-part theory of territorial rights. I
support this reading by appealing to textual and contextual evidence. I conclude by drawing a lesson from Locke’s
views for current debates on territorial rights.
Keywords: Locke; territory; jurisdiction; authority; property
States exercise political power over the areas they claim as their territories. When they do
so legitimately, states possess territorial rights. At its core, a state’s territorial right is its right
to have jurisdiction over a certain geographical area. If a state has territorial rights, then
people can become subject to its legitimate authority by being present in the geographical
area over which it governs.
Most treatments of territorial rights include a discussion of John Locke. Locke stands out
as one of the earliest political thinkers devoting attention, however briefly, to this topic.
There is remarkable agreement on what his views were. For Locke, it is said, states obtain
territorial rights by means of individual acts of property submission by their subjects. As
part of their political consent people transfer to the state a small part of their property right.
This gives the state the right to demand allegiance of anyone who might subsequently enter
the property. Entering submitted property is, to use Locke’s phrase, to consent tacitly to the
state’s authority.
This view is idiosyncratic. Many now argue that there is a categorical distinction
between the rights of states to jurisdiction and the rights of individuals to property.1And
Locke’s theory of territory is often mentioned only to be summarily rejected, so as to
indicate the need for an alternative approach. I believe that this interpretation of Locke is
mistaken. As I will argue, Locke did not see territorial rights as based in property. Instead,
his approach is considerably more complex, and more modern, than is now realized.
Moreover, Locke’s views contain an important lesson about what is at stake in discussions
of territorial rights. Thus, while the focus of this article is primarily historical, my findings
are relevant to contemporary debates as well.
On the reading of Locke I propose, there are two elements to how territorial rights are
obtained. Internally, a state gains the right to rule over the people in its territory by being
the first to exercise justified political power within an area. When people remain in this
area they give the state their tacit consent. Thus, for Locke, tacit consent can justify not
only the authority of a state that already has territorial rights, but it can also justify those
territorial rights themselves. Externally, a state gains the exclusive right to exercise such
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doi: 10.1111/1467-9248.12106
POLITICAL STUDIES: 2015 VOL 63, 713–728
© 2014 The Author. Political Studies © 2014 Political Studies Association
political power within its territory by securing the agreement of other states not to engage
in competitive exercises of political power. This is achieved through international treaties.
Before defending this reading, a word about territorial rights is required. There is some
dispute about how to understand these rights. Some adopt extensive definitions. A. John
Simmons, the most prominent defender of the reading of Locke that I will challenge,
defines territorial rights as a complex bundle of claims, including:
(1) rights to exercise jurisdiction (either full or partial) over those within the territory, and so
to control and coerce in substantial ways even non-citizens within it; (2) rights to reasonably
full control over land and resources within the territory that are not privately owned; (3) rights
to tax and regulate uses of that which is privately owned within the state’s claimed territory;
(4) rights to control or prohibit movement across the borders of the territory; and (5) rights
to limit or prohibit ‘dismemberment’ of the state’s territories (Simmons, 2001, p. 306;
compare Stilz, 2009, p. 186).
Others, like David Miller (2011, pp. 92–3), adopt a more parsimonious (although still
extensive) view. According to Miller territorial rights include rights to (1) jurisdiction,
(2) resources found on the territory and (3) control immigration.
For present purposes I will adopt only a very simple understanding of territorial rights
and focus on element (1) alone. That is, I will understand a state’s territorial right as its
exclusive right to rule within a certain geographical area. More precisely, a state has a
territorial right over area A if it has the exclusive moral right to issue and enforce law
(exercise political power) over people’s actions and possessions in A because they are in A.2
This more modest focus is advisable for a number of reasons. One is that it will help to
keep our discussion manageable. Another is that this is the only issue to which Locke
directly spoke. In any case, element (1) will likely be a centrally important component of
territorial rights. The present modest account thus avoids begging any further questions.
The Standard Reading
The question we are asking is under what conditions, for Locke, can a state have rightful
jurisdiction over land? When has a state legitimate authority over people and their
possessions because they are present in a particular area (the territory)?
According to the standard interpretation of Locke, a state obtains territorial rights
because the original founders of political society submitted, as part of their consent, not
only their persons to its authority but their property as well. In short, at its founding,
individuals transferred to the state some of the incidents of their natural property rights.
The state thus obtained the right to set conditions to the subsequent use or ownership of
the land. Among these conditions is that people accept its authority.
A state’s territorial right is thus quite literally patched together from the partially transferred
property rights of its subjects. Its right to rule becomes attached to the land in the same way
easements can. For Locke, Simmons writes (2001, p. 317), ‘the state’s right to territory
constitute[s] a weak form of property’. This reading is said to find support in a number of
passages from Locke’s Second Treatise, and especially section 120. There Locke writes:
By the same Act therefore, whereby any one unites his Person, which was before free, to any
Commonwealth; by the same he unites his Possessions, which were before free, to it also; and
714 BAS VAN DER VOSSEN
© 2014 The Author. Political Studies © 2014 Political Studies Association
POLITICAL STUDIES: 2015, 63(3)
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