Teng Li

Functionalist theories of territorial legitimacy have long been criticized for their inability to explain why states that perform morally imperative functions may still lack legitimacy in relation to unilaterally annexed territories. While currently popular solutions to this problem tend to rely on some notion of collective self-determination to explain the distinctive wrongness of unilateral annexations, this article argues that annexing states’ illegitimacy can alternatively be grounded in the principle of ex injuria jus non oritur, which identifies states’ unjust ascent to dominance as a distinct injustice. Thus understood, I suggest that the problematic feature of functionalism is best interpreted as a problem about rectifying historical injustices. I argue that adequate respect for the victimhood of those injured by historical injustices demands a rectificatory scheme that, under certain circumstances, permits individual holdouts against the majority’spreference for rectifying the injustices committed in the course of annexation.

In the literature, the Rule of Law (ROL) is mainly explained, and its value justified, by reference to its support for a liberal conception of human agency. As such, the connection between the ROL and legitimacy is normally considered contingent if the conception of the ROL is thin. It can be rendered necessary, it seems, only by a substantive conception that incorporates other political ideals, notably democracy. Without recourse to such a move, this article defends a necessary ROL-legitimacy connection by exploring the ROL’s contribution to the task of pacification, which, I argue, is inherent in the claim of legitimacy. My interpretation re-orients the ROL’s foundational value from the liberal conception of human agency to politically inspired fear and summa mala. The paradigmatic shift is in line with the realism approach to political theory which derives and explains moral claims in political theories from considerations of basic political necessity.