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Justice et injustices spatiales

Bernard Bret
Philippe Gervais-Lambony
Claire Hancock
et al.

Approches théoriques


Avery Kolers

Texte intégral

1NO PURPORTED SOLUTION to the Israeli-Palestinian conflict or any other territorial conflict will be worth the name unless it recognizes each group’s link to that place, and honors this link either by granting them territorial rights there, or failing that, by recognizing that the loss is a significant concession that must be dearly compensated. In contrast, the Irish have no claim to Palestine.

2What do these obvious facts tell us about territorial rights? I suggest that they reveal a basic demand that is fairly placed on theories of territorial justice in particular and of international justice in general. Such theories owe an account of attachment to territory—of what binds particular peoples to particular lands. What could explain, or justify, such a link? Or is it an error to suppose such attachments exist?

  • 1 I group theories here by author rather than by argument, but this may be slightly misleading; a nu (...)
  • 2 See Waldron, Jeremy. “Superseding Historic Injustice”. Ethics 103, 1992, p. 4-28; Meisels, Tamar. (...)

3By and large, the few political theorists who have addressed this problem of attachment have fallen into two opposed groups1. The first group, composed of cosmopolitans of various stripes, treat territory as a mere bundle of market goods subject to the “calculus of social interests” (Rawls 1999: 4). On this view, the feeling of attachment to territory is, at most, a problem to be managed, not an authentic element of social life worthy of attention in its own right. Territory enters the theory of justice proper only in terms of the market value of land or its instrumental role in conventional political functions such as public-goods provision; if territory itself has group-specific value, that aspect of it is to be regulated by justice, not vice versa. It is therefore hidden from view by the veil of ignorance in a global Original Position. From this perspective the history of colonialism, conquest, and war is of extremely limited relevance, because practically every territory has been stolen or conquered numerous times, and the best we can do may be to start from now and move forward2.

  • 3 See Roger, Maaka, and Augie, Fleras. “Engaging with Indigeneity: Tino Rangatiratanga in Aotearoa”. (...)

4The second group, consisting of nationalists, anti-colonialists, and others, have embraced a certain particularism, effectively denying that any group’s claims may be rigorously examined from the outside3. Such accounts—especially those based on indigeneity or prior settlement— deny that a theory of attachment to territory could be anything but the imposition of an ethnocentric conception onto all peoples. In the face of national, anti-colonial, and indigenous claims, this approach simply accedes: if some place is sacred to some group, who are we to say other-wise? All we can do is hope that no two groups turn out to be indigenous to the same place.

5Neither of these orientations is acceptable. Where the first pretends the past did not happen, the second is prisoner to the past. The way forward, I shall argue, is carefully to explicate the values at stake in claims of territorial attachment, as well as the interactions among competing claims from distinct groups, and to defend an attachment criterion that can accommodate these factors.

  • 4 The arguments here are more fully developed in Kolers, 2009.

6I defend an account of attachment based on plenitude, or fullness. Such an account is prima facie implausible because it seems to be maximal—it demands more than mere presence or use—and because it has a long and largely unsavory history, insofar as plenitude was often invoked in arguments for European dispossession of Indigenous peoples. The account developed here is sensitive to both cultural and environmental considerations that plenitude has historically undermined. Correctly understood, plenitude provides an attachment criterion for a diverse world in an environmental emergency4.

Attachment Criteria

7Consider the following taxonomy of accounts of attachment (see table 1). An account of attachment is backward-looking if only the past matters, forward-looking, if the present and future matter, or diachronic, if past, present, and future all matter. And such an account may be particular, if it links people to places on the basis of some relation between that people and that place, independent of any other claim; universal, if putative links between people and places are in the first instance irrelevant to the choice of settlement location; or rooted, if both particular and universal features matter.

Table 1: Accounts of Attachment

  • 5 There may, of course, need to be restitutions if the settlers took the best land and are now econo (...)

8Principles in the top-left box—backward-looking, particular principles—fail because they cannot link groups uniquely to territories. Precisely because of the history of dispossessions and migrations, places are linked to multiple peoples, and peoples to multiple places. We would need further principles to choose among competing claims. On the other hand, though forward-looking, the principle in the top-right box—current settlement—faces a similar problem. We cannot assume that everyone who is in a place right now is the rightful holder of that place; a current-settlement view, however, does just that. In the process it generates serious moral hazard. Admittedly, there is a certain attraction to saying that one round of ethnic cleansing should not be “remedied” by another—that illegal settlement quickly becomes a fait accompli (Meisels 2005: 93). But even if this attraction were decisive, it has no implications for the territorial right of the expelled people: illegal settlers could be allowed to remain as a peaceful minority group within the state of the returning exiles5.

9Both backward—and forward—looking principles, then, are unattractive. For these reasons a diachronic principle seems best. Diachronic principles share with backward-looking ones a respect for longer-term relationships and a refusal to reward recent expulsions. One diachronic principle is Longstanding Settlement. This criterion appeals to the fact that the settlers have shaped the land over time and that the current generation is not itself responsible for the expulsion of the prior inhabitants (Miller 2000: 116; Moore 2001: 191). Longstanding settlement avoids the moral hazard associated with current settlement, while eliminating the multiplicity that undermines prior settlement.

10But longstanding settlement also fails—not because of the temporal consideration, but because it is particularistic. Particularistic criteria cannot evaluate, or even distinguish among, different kinds or degrees of use, and hence cannot hold claimants to any standards whatever regarding what they intend to do with the land they claim. This may seem like a virtue: insisting on any specific use would impose an unshared conception of the good (McDonald 1976; Moore 2001). But we are facing a climate emergency, featuring a global economy with a voracious appetite for resources. Under these conditions we dare not ignore the fact that our use of territory affects outsiders in morally significant ways.

11The place to look for a plausible attachment criterion is therefore in the middle box: criteria that are rooted and diachronic. But how do we make such ecumenical principles work? Tamar Meisels offers a conception of use that serves as a valuable exemplar. Meisels grants that each nation may have its own conception of the good, but insists that a thin theory of the good, encompassing use of land for “goods such as food, water, natural resources, shelter, and various other means of subsistence” (Meisels 2005: 67) is indeed common to all people(s), and that this minimal criterion of use can deliver a universal element by which to assess territorial claims. If land is not in use, then this fact “might bring entitlement into question” (Meisels 2005: 69). She thus imposes a universal minimum on particular relationships, respecting that land is both a universal and a particular good. Her use criterion is thus rooted. It is also diachronic, because it appeals to use as a test of ongoing relationships.

  • 6 See (accessed 10/20/08).

12Meisels’ criterion is, however, rooted in the wrong way. Her strategy of finding a universal minimum of what counts as use provides a list of uses that is both too broad and too narrow. The list is too broad because it is justified by the role that the goods it includes play in subsistence, but these goods also play a role in things other than subsistence. In particular, wealthy states use their food, natural resources, and shelter not just to subsist but rather to “ingross as much as [they] will” (Locke 1988: II.31). A better criterion would, then, be narrower inasmuch as it would require sustainable use. But Meisels’ list is also too narrow, since there may be many uses for land other than the economic and anthropocentric. For instance, despite their many environmental crimes, the US and Canada also maintain wilderness areas and wildlife corridors such as the Yellowstone to Yukon Ecoregion, which stretches from Wyoming through the Yukon Territory to the Alaskan border6. To charge that such lands are not in use in the ways Meisels requires—though true—misses the point.

13Meisels recognizes this problem. As she sees it, the difficulty lies in overcoming the cultural bias that befuddles universalists.

It is admittedly extremely difficult to construct a non-culturally biased account of what constitutes “nonuse”… I have in mind a situation in which a portion of land is, while not totally unpopulated, nonetheless neglected (Meisels 2005: 70).

14Meisels’ strategy to avoid imposition of a criterion of use is to lower the bar almost to the floor, in hopes of ensuring that even Indigenous peoples can jump over it. But this then counts as use many forms of neglect or dereliction that flow from “Western” uses: “white elephants,” “brownfields,” ghost towns, abandoned mines, and the like. The attempt to universalize “use” by lowering the bar ignores the fact that conceptions of neglect are also culturally particular.

15From a Euro-American perspective, Indigenous uses may indeed be neglectful, and vice-versa. The solution is not to find a lowest common denominator between culturally particular conceptions of use, but to learn what counts as use and what counts as neglect from each perspective. Here, then, is the right way for an attachment criterion to be rooted: to derive its conception of attachment from those whose attachment is in question. We do not need a universal criterion of use; we need a universally fair way to test particular criteria of use. For instance, if Euro-American cultures venerate markets in land, then the test of use for Euro-Americans must be (in part) whether they maintain such markets. In contrast, if the Woodlands Anishinabe venerate sustainable forestry (Callicott 1997: 126-30), then the test of use for them must be whether they practice sustainable forestry. The bar is not lowered or raised, but moved to a different place, and set at a height appropriate for that place.

16This refocused cultural sensitivity does not help us solve the problem of sustainability. This is no surprise, for use is essentially a minimum— non-neglect—while sustainability imposes a maximum. I therefore depart from use altogether, instead defending a criterion I call plenitude. Plenitude is the only criterion that is both diachronic and rooted in the right way. In its rootedness it follows the strategy I have just outlined for cultural sensitivity, while building in a sustainability aspect.


17Plenitude has a long history. But if it is nothing new, it may also seem to be an idea well-lost. European expansionists justified settlement in the Americas and elsewhere by arguing that the land was empty (Locke 1988: II.v; Tully 1994: chap. 5; Arneil 1997). This became a self-fulfilling prophecy (Jennings 1976; Crosby 1993). Of course, the appeal to plenitude was dubious at best. But what is crucial is not just that the empirical claim was false, but that even from the perspective of the dispossessed, empirical falsehood was, and is, taken to be the core problem. Defenders of Indigenous rights do not deny the normative premise

For any land L, a newcomer’s unilateral claim to L is valid only if L is antecedently empty.

18Rather, they deny the empirical premise

The Americas were empty.

  • 7 Jennings, Francis. The Invasion of America. New York: Norton, 1976; Alfred, Taiaiake. Peace, Power (...)

19The same goes for defenders of Palestinian rights and of the rights of other dispossessed peoples7.

20By the same token, plenitude has featured in arguments for popular agrarian reform advanced by groups such as the Landless People’s Movement in Brazil (Wright and Wolford 2003: 24). Thus, while plenitude has a spotty history, the normative premise on which it is based is not the problem. The problem is that the normative premise has traditionally been interpreted in culturally exclusive ways and coupled with false empirical claims.

21What is plenitude? One source of insight into this question comes from considering its opposite, emptiness. When places are empty they are not (necessarily) “mere space”. Rather, they may be vacant, desolate, burnt-out or abandoned. White elephants, brownfields and ghost towns are all empty, despite the fact that they are built-up areas and there may be a small number of people living or working there. Similarly, consider a town that has suffered severe bombing in wartime. The site might be filled with rubble and wreckage. All the same physical stuff (and more) goes into the rubble and wreckage as went into the town or city. But there are no more buildings, gardens, or shops; there is only rubble.

22If emptiness does not require an absence of physical objects, then mere presence also does not ensure plenitude. The essential further element is a relation between claimant and place. When I travel through Henry County, Kentucky, I see fields and hills occasionally interrupted by cows or horses and barns which, for all I know, may be unused or even fake. Most of the expanses are yellow or green, but I cannot identify the crops under cultivation. Except for the county markers, I cannot tell where one place ends and another begins. In contrast, consider Wendell Berry’s response to his “native hill”—Henry County, Kentucky—upon returning there from New York:

It is, I saw, inexhaustible in its history, in the details of its life, in its possibilities. I walked over it, looking, listening, smelling, touching, alive to it as never before. I listened to the talk of my kinsmen and neighbors as I never had done, alert to their knowledge of the place, and to the qualities and energies of their speech. I began more seriously than ever to learn the names of things – the wild plants and animals, the natural processes, the local places – and to articulate my observations and memories. My language increased and strengthened, and sent my mind into the place like a live root system… I came to see myself as growing out of the earth like the other native animals and plants. I saw my body and my daily motions as brief coherences and articulations of the energy of the place, which would fall back into it like leaves in the autumn (Berry 2002: 7).

23Berry’s description suggests that a full account of plenitude must have at least three key aspects. First is diversity: a place is full not when we fill it with things, but when it is internally diverse—the features of the place are distinct one from the other—and the place itself is distinct from other places. Second, the diversity and distinctiveness are observer-relative: I see emptiness where Berry sees a complex social and ecological system. And where Berry can see the limit of his native hill, I cannot. Third, both diversity and distinctiveness are susceptible of enhancement (or dereliction) when one embarks on a project of knowing the place in its diversity.

24Similarly, what makes a rubble-filled war zone empty is not a lack of medium-sized physical objects, since that is precisely what is there: pieces of rubble and the wreckage of human lives. What makes it empty is the lack of internal diversity. To describe it as “rubble” is to call attention to precisely this feature—the dearth of distinguishable things.

25Thus plenitude is both an empirical property of places and a project upon which one or more persons may embark. In the former sense, plenitude is a fact of the matter about a place, its objective fullness from a perspective. In the latter sense it is a stance that one adopts with respect to a place, a decision to enhance its fullness. Empirical plenitude is the extent to which a place is internally diverse and distinct from other places. And intentional plenitude is the extent to which a person’s or group’s projects involve knowing the place and enhancing its plenitude. To enhance plenitude there is no need to increase the number of different things or kinds of things in a place, but only to set out to know the kinds of things that are there, and to help ensure that they are able to stay and flourish there. These projects may involve increasing the number of (kinds of) things in the place, but they may also involve reducing it: getting rid of the kudzu to protect the biodiversity of a forest.

26Empirical plenitude is the extent to which a place is diverse and distinct. This property is both objective and relative. In order to see a place as diverse and distinct one must presuppose a conception of land that recognizes a multiplicity of kinds of things there, and that recognizes some difference between the things there and the things in a contiguous territory. The more distinctive and the more diverse a place is, the fuller it is. To emphasize: plenitude is a function of distinctness and internal diversity, but it is possible for different people to see boundaries and internal diversity with varying degrees of clarity. So plenitude is relative.

27This element of relativism is crucial to achieving cultural sensitivity without simply lowering the bar—to being rooted in the right way. But the relativism here may sit well with the objectivity I have insisted on. Empirical plenitude is supposed to be a fact about a place, and will have to be universally testable in order to meet the standard for attachment criteria that we set earlier.

  • 8 By analogy, for theists who believe that God is all-knowing, all-powerful, and all-good, the probl (...)

28Relativity is not subjectivity. To the contrary: to say that it is true, relative to E, that p, is to say that in the ontology of E, p is objectively true. It is not to say that the truth of p is up to those who use E, or that sincerity is the criterion of truth. That would be subjectivism8. Empirical plenitude is culturally relative, but this is precisely why we can demand of a society that its members show that their land is objectively full by their own lights. And if they cannot, then their claim to the land is suspect. Relativism presupposes that there are objective facts of the matter, standards of evidence, etc.; it just denies that those facts are independent of a particular culture’s conception of land.

29When claiming a territory, the claimant group must affirm that the place is full, but corroborate the ascription of plenitude with some explanation of what plenitude means according to their conception of land. This explanation would then entail some empirically verifiable phenomena that can be assessed objectively. An agrarian conception would require that land sustain multiple productive uses, such as produce, pasturage, forests, and recreation. These are universally testable features of places. But these features would be irrelevant to the plenitude of, say, urban industrial sites, and so different tests would be needed there.

30To assert the plenitude of a place is in part also to announce a project of some sort. Intentional plenitude exists when the claimant is engaged in a project of enhancing and/or maintaining the empirical plenitude of the place. To remain full the place need not be left untouched; to the contrary, since all places are subject to spatial flows both internally and across their boundaries, maintaining a place as full is rather a matter of equilibrium. A community or state adopts a project of enhancing plenitude by, say, remaining committed to enhancing sustainability and preventing dereliction, disuse and vacancy. Also characteristic of such an attitude is developing a deeper understanding of and appreciation for the diversity of the place—for instance, investigating the animal and plant species of the rain forest, maintaining the predation patterns of top carnivores. To be full is not necessarily to be full of people. Indeed even an argument for preventing human settlement may appeal to plenitude as an implicit or explicit premise.

31Berry’s “native hill” is full for him and those among whom he lives. Its empirical plenitude consists in its internal diversity and external distinctiveness; its intentional plenitude consists in people’s making a project of enhancing their understanding and appreciation of the empirical plenitude. The relativist aspect entails only that the same place with the same properties may be empty or full to different people, depending on their capacity to see it as diverse and distinct. Intentional plenitude is also empirically testable in the sense that Berry and his neighbors could demonstrate their ongoing commitment to the plenitude of the place. Plenitude, then, has both empirical and intentional elements, each of which is empirically testable and each of which is normally necessary for a successful territorial claim.


32To conclude, let’s apply plenitude to three distinct types of claims. Conservative claims are lodged by groups that already inhabit and control the claimed place. Radical claims occur when a group that neither inhabits nor controls asserts a claim to do both. And revisionist claims are those that would alter who inhabits (or how) or who controls, but not both.

33Radical claims must demonstrate current empirical emptiness and intentional plenitude: “the place is empty, but we have a plan for it.” Conservative claims must demonstrate both empirical and intentional plenitude.

34Revisionist claims come in four forms: (i) those where controllers want to settle, (ii) those where residents want control, (iii) those where controllers want to disengage, and (iv) those where residents want to abandon. Type-i claims are like radical claims; they must demonstrate empirical emptiness and intentional plenitude. But with a catch: the controllers must not themselves be responsible, retrospectively, for the empirical emptiness that features in their claim. Type-ii claims are like conservative claims; they must demonstrate empirical and intentional plenitude. But if the claimants fail to demonstrate empirical plenitude through no fault of their own (e.g. they suffered ethnic cleansing), the group must demonstrate only intentional plenitude. Claims of types iii and iv must ensure that the departure would not lead to a wholesale emptying-out, e.g. through genocide.

35It may yet be objected that plenitude is just a more-confusing version of settlement. Meisels understands settlement as involving not just “human residence in a territory,” but “a fruitful relationship with the land, which consists primarily of building on it and shaping its landscape… not only the presence of individuals on a piece of land but also… a permanent physical infrastructure” (Meisels 2005): 79. But it is worth emphasizing that plenitude may not take this form; indeed, it may take the form of reducing human encroachment in order to keep an ecosystem intact.

36Further, it is possible to settle a place in a way that “fills” a different place. Arguably part of the preservation of Palestinian claims has to do with the organization of life in refugee camps around a village-map geography (Peteet, 2005). Meisels’ account comprehends settlers who seek to build a new life in a new place. But settlers who geographically recreate their lost home and thereby concretize their alienation from it have the opposite valence: they materially assert a claim to another place, settled by others the legitimacy of whose claim is challenged by the existence of an inverted mirror some miles away. In this case, settlement simply cannot capture what is asserted by the settlers-in-exile.

37We are all committed to some attachment criterion or other. The difficulty is to explicate a plausible criterion and discover grounds on which it can be defended. The spotty history of plenitude is due to self-serving and imperialist misapplication, rather than to the plausible underlying moral claim. What is required is a sense of what plenitude really means, how it might be identified in practice, and why it is attractive. I hope to have gone some way toward meeting this requirement.


1 I group theories here by author rather than by argument, but this may be slightly misleading; a number of authors have proposed multiple accounts of attachment falling into both groups. I take this as a sign of the lack of systematicity in theories of territorial rights in general, and attachment to territory in particular.

2 See Waldron, Jeremy. “Superseding Historic Injustice”. Ethics 103, 1992, p. 4-28; Meisels, Tamar. Territorial Rights. Dordrecht: Springer Law and Philosophy Library, 2005 (use or efficiency); Beitz, Charles. Political Theory and International Relations. Princeton: Princeton University Press, 1999, revised ed. (global difference principle); Pogge, Thomas W. World Poverty and Human Rights. Cambridge, UK, and Malden, Mass: Polity Press, 2002 (global resource dividend); Walzer, Michael. Spheres of Justice. New York: Basic Books, 1983 (need); Kymlicka, Will. Liberalism, Community, and Culture. Oxford: Clarendon Press, 1993; Steiner, Hillel. “Just Taxation and International Redistribution”. Shapiro and Brilmayer (eds.) Nomos, XLI, Global Justice, 1999, p. 171-91; MOORE, Margaret. The Ethics of Nationalism. Oxford: Oxford University Press, 2001 (equality); D. Kofman, “Territorial States: What are they Good For? Who Needs Them?”. Calder, Gideon, Edward, Garrett, and Jess, Shannon (eds.). Liberalism and Social Justice. Aldershot, UK: Ashgate, 2000, p. 209-230; Kymlicka, Will. “Territorial Boundaries: A Liberal Egalitarian Perspective”. Miller & Hashmi (eds.). Boundaries and justice: diverse ethical perspectives, 2001, p. 249-75 (public goods provision).

3 See Roger, Maaka, and Augie, Fleras. “Engaging with Indigeneity: Tino Rangatiratanga in Aotearoa”. Ivison, Patton, and Sanders (eds.). Political theory and the rights of indigenous peoples, 2000, p. 89-109 (indigeneity); Walzer, Michael. Spheres of Justice. New York: Basic Books, 1983; Gans, Chaim. The Limits of Nationalism. New York: Cambridge University Press, 2003 (ethnogenesis); Miller, David. Citizenship and National Identity. Malden, Mass: Polity Press, 2000; M. Moore, The Ethics of Nationalism. Oxford: Oxford University Press, 2001; Meisels, Tamar. Territorial Rights. Dordrecht: Springer, “Law and Philosophy Library”, 2005 (longstanding settlement). Such views are particularist about territorial attachment as such; they need not be particularist about morality in general. Their issue-specific particularism is based on the fact that they do not treat territorial attachment claims as susceptible of outside assessment.

4 The arguments here are more fully developed in Kolers, 2009.

5 There may, of course, need to be restitutions if the settlers took the best land and are now economically better off than their returning victims. But this is compatible with letting them stay.

6 See (accessed 10/20/08).

7 Jennings, Francis. The Invasion of America. New York: Norton, 1976; Alfred, Taiaiake. Peace, Power, Righteousness: An Indigenous Manifesto. Toronto: Oxford University Press, 1999. Nearly every historically minded articulation or defense of Palestinian claims emphasizes the population size, demographic breakdown, and land ownership distribution prior to the UN Partition of 1947. See Beinin, Joel, and Lisa, Hajjar. “Palestine, Israel and the Arab-Israeli Conflict: A Primer”. Middle East Research & Information Project (MERIP), 2000,–primer.html; see also Drysdale, Alasdair, and Gerald H., Blake. The Middle East and North Africa: A Political Geography. Oxford: Oxford University Press, 1985, p. 270-76.

8 By analogy, for theists who believe that God is all-knowing, all-powerful, and all-good, the problem of evil objectively poses a serious challenge. But the challenge is, as we may say, “religion-relative”:if one denied one of the-three-central premises about God, there would be no problem. The challenge does not go away simply because theists do not want to face it, or can sincerely claim to believe in God without having confronted the problem; it demands an answer.

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Légende Table 1: Accounts of Attachment
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