Summary
This article critiques the concept legitimacy, particularly as it is employed in territorial claims. Examining the entangled history of rights, private property, and territorial sovereignty, I attempt to dismantle the validity of legitimacy’s logic. Most immediately, this examination of territorial claims speaks to the ongoing crisis in Palestine but has vivid parallels in indigenous discourse as well. Arguments over legitimacy only foment endlessly arbitrary contestations over primacy, which reify Eurocolonial notions of territorial possession. The argument presented within is that decolonization is not a matter of extending sovereignty to subjugated and marginalized populations. Rather, decolonization demands the elimination of sovereignty altogether, particularly the exclusive rights of exploitation that are granted autonomous sovereigns.
While discussing the peopling of the Americas that occurred about 20,000 years ago with an introductory anthropology class, a student wondered aloud whether they should continue taking pride in their native heritage. Realizing that all Homo sapiens migrated to the Americas, the student questioned what right they had to claim “Native American” status. I assured the student that among the humans that have occupied the Americas those that arrived when Alaska was still connected to Siberia (during the last ice age) had legitimate claims to the land. I suggested the student’s definition of “native” was perhaps too demanding. All humans outside Africa would be considered non-native by this definition. But the student didn’t seem totally satisfied. Nor was I. I had fallen back on “we were here first” logic, an immature claim to legitimacy that normalizes modern notions of ownership, rights, property, and territory. “We were here first” logic isn’t good enough. It enables endlessly arbitrary efforts to define primacy—should all life-forms born outside the ocean be considered non-native? Invasive species? This futile exercise produces exclusionary boundaries between those with legitimacy and those without.
The crux of the following was composed on my walk home from class that day while mulling over the concept legitimacy. It was November 10, 2023, a month into Israel’s bombardment of Gaza following Hamas’ attacks in Israel. Given the immediacy of this anguish, I couldn’t avoid thinking about claims to territorial legitimacy through the lens of Palestinian occupation. Thus, perhaps it is worth considering the intractable violence of territorial disputes by challenging the legitimacy of legitimacy. Wherever there is a border which claims to demarcate exclusive rights to a piece of land, the concept legitimacy demands scrutiny.
That violence is used to legitimize violence illustrates the weakness of legitimacy as a concept. That is, if I can say violence against me legitimizes my violence toward others (a common refrain in many simmering global tensions), then legitimacy is an arbitrary means of authorizing sheer compulsion and desire. Desire for retribution is understandable. I may want to hit back if I am struck. I may impulsively hit back if I am struck. But the legitimacy of return strikes, in the prevailing geopolitical logic of the day, is highly variable depending on how normalized a people’s exploitation and abuse has become. For all the gravity of the tragedies surrounding the formation of the Israeli state (including the Holocaust), the rhetoric from pundits and politicians is grotesquely juvenile, usually amounting to variations on “he hit me first!” Sadly, this logical immaturity is to be expected from the reductionist notion of territoriality that has come to dominate the globe through colonialization.
Reviewing Western ideas of rights, property, and territory as developed during the Enclosures and contrasting these with non-Western perceptions of territorial occupation illustrates the entanglement of legitimacy and exclusion. Referencing the title of this article (drawn from MC Hammer’s 1991 smash hit “2 Legit 2 Quit”), the language of legitimacy ensures unending dispute and antagonism. That is, one party is, following Hammer, always too legitimate to concede, thus providing the fuel for inexhaustible violence.
Rights & Wrongs
The language of legitimacy is inseparable from that of rights. Among others, Hannah Arendt has questioned the unimpeachable sanctity of rights. Sure, we all love rights. Give me all the rights please. But codifying aspects of socialization that the Declaration of Independence describes as self-evident, unalienable, and natural, submits “rights” (e.g., free speech) to politico-juridical arbitration. Why legalize something unalienable, natural, self-evident? When we make protection from “cruel and unusual punishment” a right (The Eighth Right in the U.S.’s Bill of Rights) it means it can be granted or bestowed upon some and denied others. Something that should be unalienable becomes alienable when codified as a legal status. Few would argue that the U.S. has dished out much cruel and unusual punishment to people not protected by its Bill of Rights.
Far from a tool for securing ethical treatment, rights more immediately serve to enclose the world within the economic-legal reality of Eurocolonialism. Indeed, Arendt suggested that human rights were invoked precisely to protect the arbitrariness of state power. Discussing the political status of aboriginal Australians, indigenous scholar Aieleen Moreton-Robinson argues that, “Rights of citizenship were deployed as weapons…Rights should not be understood as the establishment of legitimacy but rather the methods by which subjugation is carried out.” The granting of indigenous Australians rights of citizenship means their sovereignty cannot exceed the state’s.
There is no way to grant meaningful sovereignty to communities that hold starkly different conceptions of territoriality than the dominant European vision. As archaeologist Lindsay Montgomery points out, the Comanche employ “an expanded understanding of territorial control, which does not require permanent settlement or private property” and take “a more fluid approach to territorial occupation and possession…Territorial control is based on continuous use rather than through the creation of private property.” Land is visited, not occupied. Anthropologists suggest this non-Western attitude might best be summed up as, “We do not own the land; the land owns us.”
Looking back at Palestine, Arendt (who escaped Nazi internment in 1941) made this prescient observation about the Israeli state in 1951:
After the war it turned out that the Jewish question, which was considered the only insoluble one, was indeed solved— namely by means of a colonized and then conquered territory—but this solved neither the problem of the minorities nor the stateless. On the contrary, like virtually all other events of our century, the solution of the Jewish question merely produced a new category of refugees, the Arabs, thereby increasing the number of the stateless and rightless by another 700,00 to 800,000 people.
The insolubility here suggests the logic is broken. Problems aren’t solved by redistributing territorial legitimacy and authority. Territorial sovereignty isn’t a puzzle where you just need to move the right pieces into place so that everyone gets along. The oppression of one group in a land isn’t solved by giving them authority over a different territory. The problem here is the authority, not the people or their moving. Granting exclusive sovereign rights to land is the problem. This practice inevitably creates mutual exclusivities and foments competing interests. The globe has been parsed into auto-antagonizing units.
A self-satisfied tale is often told about how the umbrella of rights has increasingly expanded to include more and more groups, to the point that we now have universal human rights (of course who gets to be considered human has not always been “self-evident”). First, rights were granted to rich, landholding European men. Then rights were granted to less affluent European men and eventually to non-Europeans and women. This shouldn’t be portrayed as some great march toward justice. After much violent exploitation, eventually marginalized groups are allowed to join the club of rights-bearing people. This isn’t emancipation. It is annexation. The spread of white male landholder rights is the spread of legitimate exploitation (of people and environments). Universal human rights universalize exploitative social relationships.
Uncommon & Enclosed
The deployment of rights by European landholders was driven by the desire to establish exclusive access to land and its resources, to codify the exclusivity of their ability to profit from (i.e., exploit) land. Land formerly held in common was enclosed (privatized). The genesis of rights and private property are one in the same. The history of rights is explicitly the history of exclusion. Indeed, it has been argued that property rights are really the only kind of rights. Further, property rights are inseparable from policing. Whether runaway slaves in the U.S. or private forests in England, policing emerged from the spread of private property. Legal exclusivity is socially corrosive (no one wants it, it upsets people) so it must be violently enforced.
Private property was unfamiliar in the medieval period. Political scientist David McNally comments that “Historians have been unable to find a clear definition of ‘property’ in English legal writings prior to the eighteenth century.” The Church was in charge of a lot of land and the nobles were in charge of a lot of land, but being “in charge of” did not grant exclusive rights to usage, as ownership does today. This being “in charge of” could more closely be equated with “responsibility for” rather than “ownership.” Historian George Comninel affirms that the peasantry controlled “almost twice the amount of land as the nobility in the ancient regime.”
After several centuries of steadfast resistance from peasant classes, today private property is valorized as indispensable to society. For Adam Smith, private property is the hallmark of civilization. For most people, however, in most places at most times, the exact opposite has been true—private property has entailed stripping agency, limiting choices, and concentrated hierarchical control. It is confounding that today many consider private property the key to autonomy and personal freedom. The implementation of private property took away the capacity for self-sufficiency from the vast majority of the world. In reviewing the deterioration of social conditions across ancient societies, economist Michael Hudson finds “The common denominator from Babylonia to Byzantium was the transfer of subsistence land to large property owners.” The privatization of land made self-subsistence illegal, took away the ability to legally feed yourself—“a concerted and generalized assault against self-provisioning,” according to sociologist Jesse Goldstein.
The Enclosure movement is responsible for ushering in the normalization of private property. Geographer Briony McDonagh attests that the Enclosures “involved extinguishing common rights and unifying multiple claims to land and its resources under a single landowner who then had the right to exclude…other users.” Utopianist Thomas Moore argued that enclosure caused economic inequality, crime, and social dislocation. Prior to Enclosure, legal custom was not based on rights.
The economy that dominated Europe between 500 and 1500 CE, the commons system, lacked the exclusive property rights that come with ownership. Garrett Hardin’s “tragedy of the commons” more accurately describes how groups behave under privatized, free-market, for-profit regimes than the commons he meant to critique. What Hardin describes—that groups will over exploit resources to which they have free access—could more accurately be framed as the “tragedy of commodities.” The scenario Hardin describes is precisely what would happen if you plopped down a capitalized population in a commons economy. But those who lived within commons systems were precisely not capitalized. Hardin, like many writers of the past two centuries, naturalizes selfish, competitive greed. Selfishness and greed were not invented by capitalism, but capitalism is the practice of making these aberrant behaviors seem natural and inevitable, the “naturalization of exploitation,” as Sylvia Federici puts it.
Hammer Time
Capitalism demands ownership (exclusive rights), which forecloses the possibility of shared-use, thus creating a society “based on suspicion rather than cooperation,” according to anthropologists Oscar Salemink & Thomas Eriksen. The idea that all the world’s people have rights, suggests all the world’s people can legitimately practice exclusion. Alexander Weheliye illustrates that “rights laid the groundwork for the U.S. government’s genocidal policies against Native Americans.”
The more one considers what makes a claim legitimate, the more the concept unravels. While the term’s etymology derives from “legality,” legitimacy’s usage in English arose as a description of offspring—identifying illegitimate children, those excluded from the rights (private property) of the father. The practical work legitimacy does, then, is to foment entitlement (as in an heir to an inheritance). An abundance of entitlement causes social discord, and we live in an entitled era.
Legitimacy is sometimes used synonymously with fairness or justice, but it’s hard to imagine any cogent world where the murders of Hamas or the Israeli state would be considered fair or just. Yet somehow their combined atrocities legitimize each other (at least internally), revealing legitimacy to be nothing but a tool for authorizing force. As is clear in the case of Israel-Palestine, as long as both parties claim legitimacy, the fighting never ends. Adjudicating who is more legitimate in the struggle doesn’t resolve the issue, nor does cutting the land into pieces (see King Solomon).
Rather, the abolition of rights, abolition of entitlement, and abolition of legitimacy seems a more amenable resolution. The idea that any polity has the “right” to exploit its land exclusively is a Eurocolonial construction of territory. True decolonization is not simply offering sovereignty over a plot of land to indigenous inhabitants. To truly decolonize is to abolish exclusionary sovereignty. Paul Preciado writes that, “The failure of the Left lies in its inability to redefine sovereignty in terms other than in relation to the Western, white, biomale, patriarchal body.”
Perhaps in the end, my student was right. No one is native. That is, if native (i.e., being born somewhere, natal) is used to legitimize exclusive access to land, perhaps the concept is unnecessary. We live in a colonized and colonizing world. Eradicating colonization is not a matter of granting sovereignty to native populations, it is a matter of eradicating the right to exclude that comes with European sovereignty, getting rid of legitimate territorial claims altogether. As MC Hammer spells out perfectly well, legitimacy (as territorial arbiter) leads to never-ending escalation of animosity and pursuit of ever more territorial vengeance:
…I gotta get mine and nobody’s takin it away
(No!) cause Hammer don’t play that you try to get mineBoy you better step back freeze cause
You don’t want none I hustle for my muscle and you look
Weak son (real weak) yea!…I’m goin for all that I can get
Kickin at the top cause I’m too legit to quit
The grievances suffered by Palestinians makes their territorial claims legitimate. The grievances suffered by Jews makes their territorial fears legitimate. If two mutually exclusive propositions can be legitimate, maybe legitimacy is useless.
