Week 2: Territorial Rights, Settler Contracts, Terra Nullius, & Wilderness

Two Justifications of Colonists' Territorial Rights

A Third Justification: The Idea of Terra Nullius

The settler contract and the doctrine of terra nullius together answer two questions. First, why does this settler people have a right to rule over its members on this particular land that it occupies? Second, why does this settler people have a right against all other peoples to claim this land as its own territory?

According to Carole Pateman, the settler contract is a type of social contract in which settlers agree among themselves to build a political society that will claim the new land and marginalize the indigenous population: Click here for materials on the idea of the social contract in general. This raises the problem of how to justify their claim to the land against competing claims by other peoples. According to Pateman, the Anglophone settler colonists in general eventually opted for a terra nullius justification: they claimed an exclusive right to the land because, they claimed, it was empty, or at least not productively cultivated, when they arrived. So Anglophone settler contracts were eventually underwritten by terra nullius. (Other European settlers--in Ibero-America, South Asia, Southeast Asia, and Africa--instead opted for peaceful-agreements-with-the-natives-based claims to the land, or conquest-based claims, or civilizing-mission claims.)

Some Things That In Fact Were in North America in the Century of Contact, 1450-1550

Cahokia, near present-day St. Louis, Missouri

(Click to enlarge; Credit: University of Houston)

Tenochtitlan, capital of the Aztec Empire, site of present-day Mexico City

(Mural by Diego Rivera, National Palace of Mexico; Click to enlarge; Wikimedia Commons)

Terra Nullius and Environmentalism: Terra nullius has interesting consequences for environmentalism. When environmental concern became a burning issue in the 1970s and 1980s, terra-nullius-based states like Australia began setting aside wilderness as National Parks. However, much of this set-aside land had until then been the grounds of aborigines--one of the few places they were still allowed to practice their own ways, unmolested. But once turned into National Parks, the aborigines' rights to use these lands were severely curtailed. So between the environmental set-asides and the Australian High Court's final overturning of terra nullius in 1992, the aborigines' position with respect to land-use was even worse than before 1970. An article laying out these mechanisms is Fabienne Bayet, "Overturning the Doctrine: Indigenous People and Wilderness--Being Aboriginal in the Environmental Movement," Social Alternatives 13 (1994): 27-32.

So you'd like to know more...

Andrew Fitzmaurice, "Discovery, Conquest, and Occupation of Territory," The Oxford Handbook of the History of International Law, ed. B. Fassbender and A. Peters (Oxford UP, 2012): 840-861

Robert Williams, The American Indian in Western Legal Thought: Discourses of Conquest (Oxford UP, 1990)

Charles C. Mann, 1493: Uncovering the New World Columbus Created (Vintage, 2011)

Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain, and France, c. 1500-1800 (Yale UP, 1995)

Aime Cesaire, Discourse on Colonialism, trans. Joan Pinkham (Monthly Review Press, 2000): 31-46

Catherine Lu, "Colonialism as Structural Injustice: Historical Responsibility and Contemporary Redress," Journal of Political Philosophy 19 (2011): 261-281

Lea Ypi, "What's Wrong with Colonialism," Philosophy & Public Affairs (2013)

Christopher W. Morris, "What's Wrong with Imperialism?" Social Philosophy & Policy 23 (2006): 153-166