Debate: Political Authority, Functionalism, and the Problem of Annexation

Abstract

Deciding whether a state has political authority is arguably the most fundamental judgment we can make about its moral standing. When a state possesses legitimate authority, it has the exclusive right to govern the occupants of its territory. Even when its decisions are inefficient, irrational, or morally mistaken, its subjects are expected to comply with the legal order it establishes, and outsiders are expected to refrain from attempting to interfere with its internal affairs. A state that lacks authority, on the other hand, enjoys no such protection: provided there is an adequate justification for doing so, its subjects are permitted to actively resist attempts to enforce the law, and outsiders are permitted to intervene in order to reform or replace state institutions.1 Given these practical stakes, it's crucial to settle on a plausible account of the requirements for legitimate political authority that can guide our assessments of both nascent and established states. Recently, Alexander Motchoulski has developed a novel “hybrid” account of political authority2 that he claims is up to this task. This hybrid view, which combines elements from existing functionalist and fair-play accounts3, establishes the authority of particular states in two stages.4 In the first stage, we determine whether the state satisfies various functionalist criteria such as the consistent protection of basic rights, the maintenance of democratic institutions, and the reliable provision of essential public goods. If the state passes this test, we then examine whether the principle of fair play gives the territorially demarcated populations the state claims jurisdiction over reason to comply with its laws and support its institutions. This involves evaluating the goods provided by the state to see if they are either acceptable upon reflection or morally required. A good is acceptable if, given their interests, the recipients have reason to prefer acquiring the good plus a corresponding duty to reciprocate over not receiving this good at all. On the other hand, a good is morally required just in case the recipients have a moral duty to contribute to its provision regardless of whether the good is acceptable to them.5 If the aforementioned political goods meet either of these conditions, individuals benefiting from them have a duty to reciprocate the political cooperation of their co-citizens by obeying the laws of the state and doing their fair share to maintain its cooperative structure over time. It is this duty, owed by the citizens of a state to one another, that generates particularized relationships of authority between states and populations.6 According to Motchoulski, the primary attraction of his view is that, unlike orthodox functionalism, it is able to account for our beliefs that: (i) states generally lack authority over populations they incorporate through acts of non-consensual annexation or colonization, and (ii) historical injustices committed by the state will sometimes have an impact on its authority, but this impact can diminish or “fade” over time. Thus, by endorsing his view, functionalists can retain their basic normative commitments without running afoul of our intuitions about the boundaries of political authority.7 However, I argue that Motchoulski's view fails to deliver on this promise. Even if we accept his two-stage framework for assessing the authority of states, we cannot rule out the possibility that states can acquire legitimate authority over populations they unilaterally annex, nor can we reach reasonable judgments about when and how historical injustices undermine the authority of states. Having established this, I suggest that instead of looking for other ways to rehabilitate functionalism, we should accommodate our intuitions about these issues by endorsing a theory of political authority that recognizes the moral importance of collective self-determination. Cases where one state unilaterally annexes another pose a problem for orthodox functionalism because of the view's singular focus on whether candidates for political authority are performing various morally important tasks. Since functionalists contend that the adequate provision of basic political goods is sufficient to ground a claim to legitimate political authority, endorsing their view means accepting that, so long as they govern in a reasonably just manner, the annexing power has a right to govern its newly acquired territory. Yet, this strikes most of us as wrong. Intuitively, states cannot legitimately extend the boundaries of their authority this way, even if the annexation is bloodless and the annexing power does not violate anyone's individual rights.8 One of Motchoulski's central claims is that, by taking considerations of fair play into account when evaluating states, his version of functionalism is able to avoid this counterintuitive result. To develop this claim, he begins by demonstrating that the presence of pre-existing reciprocal duties among co-citizens is sufficient to make unilateral annexation wrong. As he contends, certain kinds of positive first-order duties, including duties of reciprocity, give rise to negative, second-order duties of non-interference. For example, if I have a reciprocity-based obligation to help my friend move between cities, my roommate has a corresponding obligation not to force me to stay in town by hiding my car keys because they believe my time would be better spent volunteering with them. By the same token, because co-citizens of a legitimate state owe reciprocal duties of political cooperation and compliance to each other, and unilateral annexation ostensibly interferes with the fulfillment of these duties, acts of annexation wrong the annexed individuals by violating a second-order duty that is owed to them. Having established this, Motchoulski then argues that when alternatives are available, benefits conferred through acts of wrongdoing clearly do not count as acceptable or morally required. And if the benefits of political cooperation are neither acceptable nor morally required from the newly annexed population's point of view, the annexing state cannot demand compliance or support from this population by appealing to the principle of fair play.9 Although Motchoulski's version of functionalism represents a major improvement over traditional accounts, I believe his response to the annexation objection ultimately fails. To see why, it's helpful to divide acts of unilateral annexation into two categories: total annexations and partial annexations. Total annexation occurs when State A forcibly claims authority over all of State B's territory and subsequently replaces all of B's political institutions with their own, effectively dismantling B as a political entity. By contrast, in cases of partial annexation State A forcibly claims authority over some of State B's territory and the corresponding residents, but leaves B intact as an independent state. In the remainder of this section, I will show that the hybrid functionalist/fair play account cannot reliably rule out the possibility of states obtaining political authority over their newly incorporated populations in either kind of case because both total and partial annexations can occur without interfering with existing duties of reciprocity. Starting with cases of total annexation, suppose that the United States successfully carries out a bloodless annexation of all of Canada and subsequently declares that all former Canadian citizens are now citizens of the United States with all the attendant rights and obligations. Instead of being covered by the Charter of Rights and Freedoms, their rights are now protected by the Constitution. Instead of electing members of Parliament in Ottawa, they vote to send representatives to Congress in Washington DC, and so on. Could Canadians complain that this change interferes with their ability to discharge their ongoing reciprocal duties to each other? I think the answer is clearly "no". This change would, of course, alter the bundle of political and civil rights held by Canadians: the precise scope of their right to freedom of expression would change somewhat, as would the extent and content of their right to political participation, and so forth. However, for functionalists like Motchoulski, the political goods that citizens have a reciprocal obligation to provide—e.g. institutions that grant all individuals a degree of political power and legal protections that safeguard individuals against arbitrary interference in their private lives10—are not precisely specified rights or entitlements. Rather, they are generic goods that can be secured through a variety of distinct schemes of rights.11 So, as long as the scheme maintained by the United States does an adequate job of securing the relevant generic goods, following annexation individual Canadians would still be able to reciprocate the benefits provided to them by their co-citizens through obedience to the law and contributions to the institutions that provide them with essential services. The only difference is that this would now involve complying with US laws and supporting the US institutions they are collectively subject to. Here, Motchoulski might object that my argument misinterprets the content of the Canadians’ reciprocal political obligations. There are two versions of this objection worth considering, so I will address each in turn. The first version says that since individual Canadians had been benefiting from the protection of particular Canadian laws and the goods provided by particular Canadian institutions, the principle of fair play obligates them to comply with the same set of laws and support the same institutions going forward. Therefore, the kind of total annexation we are examining does in fact wrong the annexed population by interfering with their ability to discharge their duties of reciprocity. The problem with this version of the objection is that it seems implausibly restrictive to understand reciprocal political obligations in this way. Motchoulski's observation that the reciprocal benefit one returns must be “fitting and proportionate”12 only dictates the goods that one has a duty to contribute to and the level of contribution required; it does not directly determine the exact channels through which one must make this contribution. If I have a duty of reciprocity to contribute to the provision of good G for the benefit of population P, and I can make an equal and satisfactory contribution by donating to either organization X or organization Y, the people to whom I owe the duty have no grounds for complaint if I donate to X instead of Y, or vice versa; what matters is that a fair contribution to G is made. Likewise, the fact that my fellow citizens and I have reciprocity-based obligations to protect each other's rights and contribute to public goods does not entail that we must comply in perpetuity with the particular set of laws and institutions that previously structured our cooperation, provided that there are alternative arrangements that would serve this purpose just as well. If it did, any change to the legal and political institutions we are subject to would be considered pro tanto wrong on Motchoulski's view, even benign changes enacted through internal, democratic mechanisms with the full support of the community. This takes us to the second version of the objection. In response to the issue just raised, Motchoulski might point out that the goods commonly associated with political cooperation require stable, long-term coordination to achieve. Maintaining justice, for example, is only possible if my co-citizens and I reliably understand, and conform to, the legal norms and rules that govern our mutual interactions. If we frequently opt to ignore the law in favour of our own moral judgments, or if we are often unsure about what is legally permissible in our dealings with each other, it is practically inevitable that widespread rights violations will often occur. For this reason, although the principle of fair play does not obligate members of a political community to comply with the exact same set of laws and institutions over time, it does require them to settle on public rules for determining which laws and institutions they are collectively subject to and only cooperate through the laws and institutions selected via these rules. Otherwise, stable political coordination will be impossible to achieve, and the state will be unable to provide the goods that justify its rule in the first place. And if this is true, it seems to follow that the unilateral annexation of Canada by the United States does interfere with the ability of Canadians to fulfill their reciprocal political obligations insofar as it replaces the legal system chosen by them in accordance with their internal rules with a new, unfamiliar system that they had no role in choosing and may find more difficult to coordinate through. I find the main premise of this objection compelling. Political goods are clearly secured through stable coordination over time, and this fact no doubt plays some role in determining whether a particular set of institutions will facilitate the reciprocal provision of these goods. But it doesn't follow that a population can only fulfill their reciprocal political obligations through institutions selected via internal rules that they have agreed upon. Though admittedly the imposition of a new legal system from the outside can destabilize practices of political coordination by increasing the rate of intentional non-compliance with the law, or by triggering widespread uncertainly regarding what the law requires, there seem to be feasible measures that an annexing power could take to mitigate these risks. Concerns about large numbers of Canadians refusing to comply with US law could, for instance, be addressed by introducing additional incentives for compliance, while concerns regarding public knowledge of the law may be avoided by implementing a phased transition of the legal code and providing public announcements detailing the most important changes. Assuming they successfully implemented such measures, US institutions could in principle be just as effective at facilitating political cooperation as the Canadians’ former institutions were, and therefore the annexation of Canada by the United States would not necessarily interfere with the ability of Canadians to discharge their reciprocal political obligations. So, because the total annexation of a country can occur without violating the unique, second-order duty of non-interference that duties of reciprocity give rise to, Motchoulski's theory fails to explain why the goods provided by the annexing power are not a morally acceptable basis for duties of fair play in such cases. What about cases of partial annexation? At first glance, it might seem obvious that in these cases there is always interference with the annexed population's existing duties of reciprocity. For example, if the United States annexed the province of Alberta but left the rest of Canada intact, it is hard to see how Albertans could continue to provide their fellow (non-Albertan) Canadians with reciprocal benefits by maintaining a shared system of legal rights and contributing to public goods, since Albertans would no longer be subject to the same set of federal political institutions as the rest of Canada. However, given the distinctive structure of political reciprocity, I do not think that these changes necessarily interfere with individuals’ duties of fair play either. Most reciprocal exchanges have an asynchronous structure: A gives some good to B at T1, so B owes her an appropriate return that she provides later on at T2, then B provides A with some additional benefit at T3 that A reciprocates sometime later at T4, and so on for the duration of their relationship. But the kind of political reciprocity we are concerned with has a unique, synchronous structure. As Motchoulski himself acknowledges,13 in a well-ordered society a state of equilibrium is reached where every citizen's continual compliance with the law simultaneously fulfills the duties they owe to their co-citizens and generates reciprocal duties to obey the law, which their co-citizens then discharge more or less automatically in an ongoing cycle. This difference is morally relevant because it affects the ways in which outsiders to these relationships can violate their second-order duties of non-interference. When two or more people are engaging in an asynchronous form of reciprocity, separating them so that they can no longer interact will often leave at least one individual without a fair return for the benefits they provided others, and correspondingly, prevent at least one other participant from fulfilling their outstanding reciprocal obligations. This does not seem to be the case when it comes to relationships involving synchronous political reciprocity, however. Sticking with our previous example, in the period immediately before annexation occurs, it's of course true that Albertans have an obligation to their fellow Canadians to comply with Canadian federal law because they are benefitting from the legal compliance of their co-citizens, and their fellow Canadians in turn have an obligation to them to do the same. But at the moment that the annexation of Alberta is complete and Albertans are no longer subject to Canadian institutions, these bi-directional duties of reciprocity are simply dissolved. Albertans do not have any leftover duties of reciprocity to non-Albertan Canadians since, by assumption, they continuously returned an equitable benefit to their fellow Canadians by complying with Canadian law for as long as they were benefiting from the protection of their shared institutions. For the same reason, non-Albertan Canadians do not have any leftover obligations to Albertans either.14 The upshot of this is that while partial annexations do terminate previous relationships of reciprocity, they do not necessarily interfere with anyone's ability to fulfill their presently existing political obligations. Motchoulski's argument thus fails to establish that partial annexations are inherently wrong and, by extension, that annexing powers generally lack political authority over their newly acquired territories and populations. Before moving forward, however, it is worth flagging that Motchoulski could respond to this conclusion by pointing out that, even if his particular account of the wrong of unilateral annexation is not viable, his hybrid functionalist theory will still cohere with our intuition that states lack political authority over territory acquired through unilateral annexation as long as we can provide some account of why such annexations wrong individuals.15 However, I am skeptical of this move, since I believe that the most natural explanation of the wrong of unilateral annexation appeals to the value of collective self-determination, and once we acknowledge this, we have reason to treat respect for self-determination as an independent requirement for legitimate political authority. I will return to this point in Section III. Having addressed Motchoulski's treatment of the problem of unilateral annexation, I now wish to argue that, contrary to what he claims, his hybrid functionalist/fair-play view also fails to provide a plausible solution to the issue of historical injustice that has long plagued functionalist theories of political authority. Historical injustices pose a problem for functionalist theories because, due to their exclusive focus on whether the state is currently doing an adequate job of protecting its subjects’ basic rights, these theories cannot account for the intuition that a history of unjust treatment—especially involving wrongful assimilation into the state—can void a state's claim to authority over the victims of these injustices as well as their descendants, yet the state may eventually gain authority over these groups as the relevance of these injustices “fades” over time.16 Motchoulski attempts to reconcile his version of functionalism with this two-part intuition by again appealing to the idea that individuals only have a duty of reciprocity to comply with the state's directives if the benefits conferred by the state are acceptable to them. On his view, to the extent that the descendants of groups such as indigenous peoples and national minorities that were previously incorporated into the state through annexation or colonization maintain “residual” cooperative practices that generate duties of reciprocity that compete with the demands of the state, these descendants are not required to accept the benefits conferred by the state. And, as previously established, if the political goods provided by the state are not acceptable or morally required from the point of view of a particular group, the state will lack authority over this group. Motchoulski contends that this line of reasoning reliably tracks our judgments about when past injustices cease to impinge on the state's political authority: since the victims’ descendants only retain a claim to independence for as long as they continue to participate in competing structures of cooperation, it is not surprising that we believe that groups who were the victims of injustice hundreds of years ago, but have long since been fully integrated into mainstream society and enjoy the benefits provided to them by their co-citizens, are now legitimately subject to the state's authority.17 Unfortunately, while this argument from competing duties may align with our intuitions about historical injustice in some cases, it seems to yield very implausible results in others. Consider a version of Motchoulski's Conquestia and Annexia case where, following annexation, the Conquestian state goes to great lengths to constrain the Annexian's residual practices of political cooperation precisely so that they do not conflict with the demands of the Conquestian legal order. Initially this is done through force, but over time the state succeeds in fracturing the Annexian resistance movement enough that they can employ increasingly subtle, legal mechanisms in order to shape the relationship between the state and the Annexian minority. This eventually culminates in a situation where, though the Annexians continue to exercise some limited self-government in areas approved by Conquestia, they have effectively lost touch with their more comprehensive practices of political cooperation that would compete with the legal obligations that Conquestia imposes on them. However, despite Conquestia now treating them as full citizens with equal civil rights, the younger generation of Annexians feel extremely alienated from the Conquestian state and share the long-term goal of regaining their political independence. I take it that, in this case, the Annexians do not have robust, reciprocity-based political obligations to Conquestia. On the contrary, it seems clear to me that they are entitled to reject the ongoing imposition of Conquestia's legal order and re-engage with their previously abandoned structures of political cooperation. Note, however, that Motchoulski's theory cannot affirm this judgment. On his view, since the Annexians did at some point stop engaging with the political practices that competed with the authority of the state, their descendants cannot reasonably reject the benefits of political cooperation they receive through Conquestian institutions, and hence they are bound by the principle of fair play to comply with Conquestian law.18 I think this is a decisive strike against the hybrid functionalist position. Although I agree that there must be some conditions under which historical injustices no longer threaten the legitimacy of particular states, it seems morally absurd to claim that a state can have authority over the descendants of a people whose territory it forcibly annexed merely because the state was so effective at supressing this group's traditional political practices that, for the time being, their descendants have little choice but to assimilate into their oppressors’ political community. Let's review the discussion so far. The aim of Motchoulski's hybrid theory is to provide an account of political authority that can adequately address the boundary problem and the problem of historical injustice while “maintaining basic functionalist commitments”.19 In the preceding sections, I have argued that his view falls short in relation to both of these goals. Incorporating the principle of fair play into the functionalist framework does allow us to explain why individuals have obligations to particular states. However, it does not enable functionalism to avoid the annexation objection, nor does it provide us with a reasonable account of when past injustices are no longer relevant to questions of state authority. At this point, we could look for other ways to rescue functionalism from these problems. But I think it is more useful to first identify the moral considerations that motivate our intuitive reactions to cases involving unilateral annexation and historical injustice, and then examine how these considerations should be integrated into a theory of political authority. Like Margaret Moore and Anna Stilz, I believe our intuitions about these issues reflect an appreciation of the moral significance of shared political identities and the associated interest in collective self-determination.20 Contrary to what functionalist theories seem to suggest, the citizens and long-term residents of a state typically do not conceive of themselves as atomistic, self-interested actors for whom politics is merely a means of securing individual rights and avoiding interpersonal domination. Instead, they often identify with and value their status as members of a specific community defined by a distinct history of cooperation on their territory and maintained through processes of mutual recognition. In short, they see themselves as being part of a unique political "people".21 Generally speaking, individuals have a substantial interest in achieving a fit between this kind of shared political identity and the political institutions they are subject to. As members of a people, we lead more autonomous and fulfilling lives when we are able to endorse the laws that govern us because these laws have been shaped by us in accordance with our shared commitments and beliefs.22 But this interest in collective self-determination is inevitably frustrated when one country non-consensually annexes another. Since this act necessarily involves the imposition of a new political order by outsiders who do not share their history of political cooperation, following annexation the newly incorporated population will no longer be able to readily affirm their participation in the political institutions that structure much of their lives. Hence, there is a way in which unilateral annexation wrongs the subjected population even in cases where it has no impact on their individual rights or duties of reciprocity. Does the presence of this wrong suffice to justify our intuition that states lack political authority over populations they annex? I think it does. Barring some kind of moral emergency, there is simply no reason why a population that has previously enjoyed a significant political good like self-determination should be expected to suddenly settle for less by recognizing the authority of new institutions that deny them this good. The moral logic at play here seems equally applicable when we turn our attention to the relationship between historical injustice and political authority. If the descendants of an annexed population maintain their identity as a distinct political group and continue to perceive a mismatch between this identity and the annexing state's institutions, they are no less entitled than their forbears to complain that their current political status undermines their interest in collective self-rule. Yet, it is clearly possible for this mismatch to be resolved over time. In some cases, this will be due to these descendants coming to identify with the annexing nation as successive generations are brought up and form attachments within this new social context. In others, the descendants will retain their original group identity and the annexing state will ultimately make institutional concessions—typically by implementing a form of federalism—that enable them to have a degree of political autonomy they find acceptable. Either way, the upshot is that individuals no longer suffer the distinctive harm that makes political rule following unilateral annexation objectionable, and thus past acts of annexation no longer bear on the state's current political authority.23 This account of when and how historical injustices fade from relevancy easily explains the intuitive distinction Motchoulski draws between cases involving the descendants of a people whose territory was seized many centuries ago (for example, the Mercians), and cases involving the descendants of a people who were subject to more recent historical injustices (for example, Indigenous populations). In the former set of cases, we usually conclude that past injustices do not undermine the authority of the state because the descendants of those affected usually no longer identify as a distinct people. By contrast, in the latter set of cases it is often apparent that the descendants have maintained their status as a distinct political people and oppose their current political situation, and so we often believe that the state's claim to authority over them is illegitimate. Moreover, unlike Motchoulski's view, it also yields the intuitively correct verdict in cases like the modified version of Annexia and Conquestia discussed in Section II. This is because, while residual practices of cooperation that compete with the state can be evidence of a desire for greater self-determination, their presence is not necessary to ground a complaint against the state's authority on this account. All that is necessary is that the descendants do in fact suffer from a lack of fit between their group identity and their political institutions, which by assumption the Annexians do. Given the central role that the value of collective self-determination plays in our moral judgments about these issues, there is a strong case for adopting an account of political authority that treats respect for self-determination as an independent requirement for state legitimacy that exists alongside various other requirements.24 After all, if the denial of self-determination is a significant enough wrong that, in cases of annexation, the state responsible lacks political authority over the annexed population and potentially their descendants, it stands to reason that if a state consistently frustrates this interest in other ways its claim to authority should be rejected as well. Perhaps, however, Motchoulski could propose that we instead incorporate the value of self-determination into his hybrid fair-play/functionalist framework by stipulating that political goods are only acceptable in the duty-generating sense if they do not come at the cost of this value. He would then be able to account for our intuitions regarding unilateral annexation and historical injustice, and hence the critique developed in this article would no longer represent a fundamental challenge to his view. Ultimately though, I think this concession would leave Motchoulski with a pyrrhic victory. The appeal of functionalism is closely connected to the view's singular focus on the role that states ought to play in securing a narrow class of basic, uncontroversial political goods. By grounding claims to authority in this relatively modest goal, functionalist accounts provide an alternative for those who are skeptical of tying political legitimacy to the achievement of more demanding procedural or relational ideals, including the ideal of collective self-determination we have been discussing. Indeed, defenders of functionalism often make a point of highlighting potential issues with treating collective self-determination as a requirement for legitimacy. Thus, for example, Jonathan Quong voices the concern that treating the state as a vehicle for the self-determination of a nation or people is incompatible with a commitment to liberal neutrality,25 while Kjartan Koch Mikalsen contends that making political authority contingent on whether the state's jurisdictional boundaries respect the self-determination of groups would threaten the freedom of individuals by undermining the ability of many states to secure a “rightful condition”.26 While I believe these issues can be addressed, for those that do not it is naturally appealing to instead employ functionalist standards when making judgements about a state's legitimacy. But, for obvious reasons, this appeal is undercut if we reconfigure functionalism in a way that ends up forcing it to take the ideal of collective self-determination into account anyway. So, while the structure of Motchoulski's account does allow him to move in this direction, doing so would leave him with a view that is unsatisfying, if not unrecognizable, to its likely proponents. Having addressed this last potential response, I think it's safe to conclude that Motchoulski's fair-play/functionalist hybrid cannot deliver on its promises. Assuming, then, that we do not want to give up our intuitions about unilateral annexation and historical injustice, does this conclusion entail that we should abandon the functionalist framework altogether? Not exactly. One could argue that while we have reason to treat respect for self-determination as an independent condition for legitimate political authority, this requirement is only applicable in cases where the population does in fact identify as a political people with a desire to be self-governing. In other cases where the population within a territory is so fractured that even an inchoate people cannot be identified, it seems reasonable to instead adopt a functionalist point of view when assessing candidates for political authority, since our primary focus should be on ensuring that individual rights are protected.27 Still, it's important not to lose sight of the difference between adopting this kind of contextual view and endorsing functionalism as a stand-alone theory of political authority. Even in cases where it is initially appropriate to grant institutions authority on functionalist grounds, we should anticipate that, over time, the people subject to these institutions will come to think of themselves as a political group with their own perspective on who should govern them. And when this occurs, we should be prepared to revise our initial assessment and demand that, going forward, these institutions must reflect the shared political identity of their subjects in order to retain their right to rule. For helpful suggestions and feedback on earlier versions of this article, I would like to thank Owen Clifton, Jordan Desmond, Michael Luoma, Margaret Moore, and an anonymous referee. Work on this article was financially supported by a doctoral fellowship from the Social Sciences and Humanities Research Council of Canada. There are no potential conflicts of interest relevant to this article. The author declares human ethics approval was not needed for this study. All relevant data are included in the article.