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

Kjartan Koch Mikalsen has published an article in Ratio Juris, defending a pure functionalist theory of territorial jurisdiction. 

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Abstract

This 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.

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

Ratio Juris, vol. 33(03), 2020, pp. 291-306
DOI: 10.1111/raju.12294

Published Oct. 19, 2020 11:45 AM - Last modified Oct. 19, 2020 11:45 AM