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1790
THE SCIENCE OF RIGHT
by Immanual Kant
translated by W. Hastie
INTRODUCTION
INTRODUCTION TO THE SCIENCE OF RIGHT.
GENERAL DEFINITIONS, AND DIVISIONS.
A. What the Science of Right is.
The Science of Right has for its object the principles of all the
laws which it is possible to promulgate by external legislation. Where
there is such a legislation, it becomes, in actual application to
it, a system of positive right and law; and he who is versed in the
knowledge of this system is called a jurist or jurisconsult
(jurisconsultus). A practical jurisconsult (jurisperitus), or a
professional lawyer, is one who is skilled in the knowledge of
positive external laws, and who can apply them to cases that may occur
in experience. Such practical knowledge of positive right, and law,
may be regarded as belonging to jurisprudence (jurisprudentia) in
the original sense of the term. But the theoretical knowledge of right
and law in principle, as distinguished from positive laws and
empirical cases, belongs to the pure science of right (jurisscientia).
The science of right thus designates the philosophical and
systematic knowledge of the principles of natural right. And it is
from this science that the immutable principles of all positive
legislation must be derived by practical jurists and lawgivers.
B. What is Right?
This question may be said to be about as embarrassing to the
jurist as the well-known question, "What is truth?" is to the
logician. It is all the more so, if, on reflection, he strives to
avoid tautology in his reply and recognise the fact that a reference
to what holds true merely of the laws of some one country at a
particular time is not a solution of the general problem thus
proposed. It is quite easy to state what may be right in particular
cases (quid sit juris), as being what the laws of a certain place
and of a certain time say or may have said; but it is much more
difficult to determine whether what they have enacted is right in
itself, and to lay down a universal criterion by which right and wrong
in general, and what is just and unjust, may be recognised. All this
may remain entirely hidden even from the practical jurist until he
abandon his empirical principles for a time and search in the pure
reason for the sources of such judgements, in order to lay a real
foundation for actual positive legislation. In this search, his
empirical laws may, indeed, furnish him with excellent guidance; but a
merely empirical system that is void of rational principles is, like
the wooden head in the fable of Phaedrus, fine enough in appearance,
but unfortunately it wants brain.
1. The conception of right- as referring to a corresponding
obligation which is the moral aspect of it- in the first place, has
regard only to the external and practical relation of one person to
another, in so far as they can have influence upon each other,
immediately or mediately, by their actions as facts. 2. In the
second place, the conception of right does not indicate the relation
of the action of an individual to the wish or the mere desire of
another, as in acts of benevolence or of unkindness, but only the
relation of his free action to the freedom of action of the other.
3. And, in the third place, in this reciprocal relation of voluntary
actions, the conception of right does not take into consideration
the matter of the matter of the act of will in so far as the end which
any one may have in view in willing it is concerned. In other words,
it is not asked in a question of right whether any one on buying goods
for his own business realizes a profit by the transaction or not;
but only the form of the transaction is taken into account, in
considering the relation of the mutual acts of will. Acts of will or
voluntary choice are thus regarded only in so far as they are free,
and as to whether the action of one can harmonize with the freedom
of another, according to a universal law.
Right, therefore, comprehends the whole of the conditions under
which the voluntary actions of any one person can be harmonized in
reality with the voluntary actions of every other person, according to
a universal law of freedom.
C. Universal Principle of Right.
"Every action is right which in itself, or in the maxim on which
it proceeds, is such that it can coexist along with the freedom of the
will of each and all in action, according to a universal law."
If, then, my action or my condition generally can coexist with the
freedom of every other, according to a universal law, any one does
me a wrong who hinders me in the performance of this action, or in the
maintenance of this condition. For such a hindrance or obstruction
cannot coexist with freedom according to universal laws.
It follows also that it cannot be demanded as a matter of right,
that this universal principle of all maxims shall itself be adopted as
my maxim, that is, that I shall make it the maxim of my actions. For
any one may be free, although his freedom is entirely indifferent to
me, or even if I wished in my heart to infringe it, so long as I do
not actually violate that freedom by my external action. Ethics,
however, as distinguished from jurisprudence, imposes upon me the
obligation to make the fulfillment of right a maxim of my conduct.
The universal law of right may then be expressed thus: "Act
externally in such a manner that the free exercise of thy will may
be able to coexist with the freedom of all others, according to a
universal law." This is undoubtedly a law which imposes obligation
upon me; but it does not at all imply and still less command that I
ought, merely on account of this obligation, to limit my freedom to
these very conditions. Reason in this connection says only that it
is restricted thus far by its idea, and may be likewise thus limited
in fact by others; and it lays this down as a postulate which is not
capable of further proof. As the object in view is not to teach
virtue, but to explain what right is, thus far the law of right, as
thus laid down, may not and should not be represented as a
motive-principle of action.
D. Right is Conjoined with the Title or Authority to Compel.
The resistance which is opposed to any hindrance of an effect is
in reality a furtherance of this effect and is in accordance with
its accomplishment. Now, everything that is wrong is a hindrance of
freedom, according to universal laws; and compulsion or constraint
of any kind is a hindrance or resistance made to freedom.
Consequently, if a certain exercise of freedom is itself a hindrance
of the freedom that is according to universal laws, it is wrong; and
the compulsion of constraint which is opposed to it is right, as being
a hindering of a hindrance of freedom, and as being in accord with the
freedom which exists in accordance with universal laws. Hence,
according to the logical principle of contradiction, all right is
accompanied with an implied title or warrant to bring compulsion to
bear on any one who may violate it in fact.
E. Strict Right may be also Represented as the Possibility
of a Universal Reciprocal Compulsion in harmony with
the Freedom of All according to Universal Laws.
This proposition means the right is not to be regarded as composed
of two different elements- obligation according to a law, and a
title on the part of one who has bound another by his own free
choice to compel him to perform. But it imports that the conception of
right may be viewed as consisting immediately in the possibility of
a universal reciprocal compulsion, in harmony with the freedom of all.
As right in general has for its object only what is external in
actions, strict right, as that with which nothing ethical is
intermingled, requires no other motives of action than those that
are merely external; for it is then pure right and is unmixed with any
prescriptions of virtue. A strict right, then, in the exact sense of
the term, is that which alone can be called wholly external. Now
such right is founded, no doubt, upon the consciousness of the
obligation of every individual according to the law; but if it is to
be pure as such, it neither may nor should refer to this consciousness
as a motive by which to determine the free act of the will. For this
purpose, however, it founds upon the principle of the possibility of
an external compulsion, such as may coexist with the freedom of
every one according to universal laws. Accordingly, then, where it
is said that a creditor has a right to demand from a debtor the
payment of his debt, this does not mean merely that he can bring him
to feel in his mind that reason obliges him to do this; but it means
that he can apply an external compulsion to force any such one so to
pay, and that this compulsion is quite consistent with the freedom
of all, including the parties in question, according to a universal
law. Right and the title to compel, thus indicate the same thing.
The law of right, as thus enunciated, is represented as a reciprocal
compulsion necessarily in accordance with the freedom of every one,
under the principle of a universal freedom. It is thus, as it were,
a representative construction of the conception of right, by
exhibiting it in a pure intuitive perception a priori, after the
analogy of the possibility of the free motions of bodies under the
physical law of the equality of action and reaction. Now, as in pure
mathematics, we cannot deduce the properties of its objects
immediately from a mere abstract conception, but can only discover
them by figurative construction or representation of its
conceptions; so it is in like manner with the principle of right. It
is not so much the mere formal conception of right, but rather that of
a universal and equal reciprocal compulsion as harmonizing with it,
and reduced under general laws, that makes representation of that
conception possible. But just as those conceptions presented in
dynamics are founded upon a merely formal representation of pure
mathematics as presented in geometry, reason has taken care also to
provide the understanding as far as possible with intuitive
presentations a priori in behoof of a construction of the conception
of right. The right in geometrical lines (rectum) is opposed, as the
straight, to that which is curved and to that which is oblique. In the
first opposition, there is involved an inner quality of the lines of
such a nature that there is only one straight or right line possible
between two given points. In the second case, again, the positions
of two intersecting or meeting lines are of such a nature that there
can likewise be only one line called the perpendicular, which is not
more inclined to the one side than the other, and it divides space
on either side into two equal parts. After the manner of this analogy,
the science of right aims at determining what every one shall have
as his own with mathematical exactness; but this is not to be expected
in the ethical science of virtue, as it cannot but allow a certain
latitude for exceptions. But, without passing into the sphere of
ethics, there are two cases- known as the equivocal right of equity
and necessity- which claim a juridical decision, yet for which no
one can be found to give such a decision, and which, as regards
their relation to rights, belong, as it were, to the "Intermundia"
of Epicurus. These we must at the outset take apart from the special
exposition of the science of right, to which we are now about to
advance; and we may consider them now by way of supplement to these
introductory explanations, in order that their uncertain conditions
may not exert a disturbing influence on the fixed principles of the
proper doctrine of right.
F. Supplementary Remarks on Equivocal Right.
(Jus Aequivocum).
With every right, in the strict acceptation (jus strictum), there is
conjoined a right to compel. But it is possible to think of other
rights of a wider kind (jus latum) in which the title to compel cannot
be determined by any law. Now there are two real or supposed rights of
this kind- equity and the right of necessity. The first alleges a
right that is without compulsion; the second adopts a compulsion
that is without right. This equivocalness, however, can be easily
shown to rest on the peculiar fact that there are cases of doubtful
right, for the decision of which no judge can be appointed.
I. Equity.
Equity (aequitas), regarded objectively, does not properly
constitute a claim upon the moral duty of benevolence or beneficence
on the part of others; but whoever insists upon anything on the ground
of equity, founds upon his right to the same. In this case, however,
the conditions are awanting that are requisite for the function of a
judge in order that be might determine what or what kind of
satisfaction can be done to this claim. When one of the partners of
a mercantile company, formed under the condition of equal profits,
has, however, done more than the other members, and in consequence has
also lost more, it is in accordance with equity that he should
demand from the company more than merely an equal share of advantage
with the rest. But, in relation to strict right- if we think of a
judge considering his case- he can furnish no definite data to
establish how much more belongs to him by the contract; and in case of
an action at law, such a demand would be rejected. A domestic servant,
again, who might be paid his wages due to the end of his year of
service in a coinage that became depreciated within that period, so
that it would not be of the same value to him as it was when he
entered on his engagement, cannot claim by right to be kept from
loss on account of the unequal value of the money if he receives the
due amount of it. He can only make an appeal on the ground of equity,-
a dumb goddess who cannot claim a bearing of right,- because there was
nothing bearing on this point in the contract of service, and a
judge cannot give a decree on the basis of vague or indefinite
conditions.
Hence it follows, that a court of equity, for the decision of
disputed questions of right, would involve a contradiction. It is only
where his own proper rights are concerned, and in matters in which
he can decide, that a judge may or ought to give a hearing to
equity. Thus, if the Crown is supplicated to give an indemnity to
certain persons for loss or injury sustained in its service, it may
undertake the burden of doing so, although, according to strict right,
the claim might be rejected on the ground of the pretext that the
parties in question undertook the performance of the service
occasioning the loss, at their own risk.
The dictum of equity may be put thus: "The strictest right is the
greatest wrong" (summum jus summa injuria). But this evil cannot be
obviated by the forms of right, although it relates to a matter of
right; for the grievance that it gives rise to can only be put
before a "court of conscience" (forum poli), whereas every question of
right must be taken before a civil court (forum soli).
II. The Right of Necessity.
The so-called right of necessity (jus necessitatis) is the
supposed right or title, in case of the danger of losing my own
life, to take away the life of another who has, in fact, done me no
harm. It is evident that, viewed as a doctrine of right, this must
involve a contradiction, For this is not the case of a wrongful
aggressor making an unjust assault upon my life, and whom I anticipate
by depriving him of his own (jus inculpatae tutelae); nor consequently
is it a question merely of the recommendation of moderation which
belongs to ethics as the doctrine of virtue, and not to
jurisprudence as the doctrine of right. It is a question of the
allowableness of using violence against one who has used none
against me.
It is clear that the assertion of such a right is not to be
understood objectively as being in accordance with what a law would
prescribe, but merely subjectively, as proceeding on the assumption of
how a sentence would be pronounced by a court in the case. There
can, in fact, be no criminal law assigning the penalty of death to a
man who, when shipwrecked and struggling in extreme danger for his
life, and in order to save it, may thrust another from a plank on
which he had saved himself. For the punishment threatened by the law
could not possibly have greater power than the fear of the loss of
life in the case in question. Such a penal law would thus fail
altogether to exercise its intended effect; for the threat of an
evil which is still uncertain- such as death by a judicial sentence-
could not overcome the fear of an evil which is certain, as drowning
is in such circumstances. An act of violent self-preservation, then,
ought not to be considered as altogether beyond condemnation
(inculpabile); it is only to be adjudged as exempt from punishment
(impunibile). Yet this subjective condition of impunity, by a
strange confusion of ideas, has been regarded by jurists as equivalent
to objective lawfulness.
The dictum of the right of necessity is put in these terms:
"Necessity has no law" (Necessitas non habet legem). And yet there
cannot be a necessity that could make what is wrong lawful.
It is apparent, then, that in. judgements relating both to
"equity" and "the right of necessity," the equivocations involved
arise from an interchange of the objective and subjective grounds that
enter into the application of the principles of right, when viewed
respectively by reason or by a judicial tribunal. What one may have
good grounds for recognising as right, in itself, may not find
confirmation in a court of justice; and what he must consider to be
wrong, in itself, may obtain recognition in such a court. And the
reason of this is that the conception of right is not taken in the two
cases in one and the same sense.
DIVISION
DIVISION OF THE SCIENCE OF RIGHT.
A. General Division of the Duties of Right.
(Juridical Duties).
In this division we may very conveniently follow Ulpian, if his
three formulae are taken in a general sense, which may not have been
quite clearly in his mind, but which they are capable of being
developed into or of receiving. They are the following:
1. Honeste vive. "Live rightly." juridical rectitude, or honour
(honestas juridica), consists in maintaining one's own worth as a
man in relation to others. This duty may be rendered by the
proposition: "Do not make thyself a mere means for the use of
others, but be to them likewise an end." This duty will be explained
in the next formula as an obligation arising out of the right of
humanity in our own person (lex justi).
2. Neminem laede. "Do wrong to no one." This formula may be rendered
so as to mean: "Do no wrong to any one, even if thou shouldst be under
the necessity, in observing this duty, to cease from all connection
with others and to avoid all society" (lex juridica).
3. Suum cuique tribue. "Assign to every one what is his own." This
may be rendered, "Enter, if wrong cannot be avoided, into a society
with others in which every one may have secured to him what is his
own." If this formula were to be simply translated, "Give every one
his own," it would express an absurdity, for we cannot give any one
what he already has. If it is to have a definite meaning, it must
therefore run thus: "Enter into a state in which every one can have
what is his own secured against the action of every other" (lex
justitiae).
These three classical formulae, at the same time, represent
principles which suggest a division of the system of juridical
duties into internal duties, external duties, and those connecting
duties which contain the latter as deduced from the principle of the
former by subsumption.
B. Universal Division of Rights.
I. Natural Right and Positive Right. The system of rights, viewed as
a scientific system of doctrines, is divided into natural right and
positive right. Natural right rests upon pure rational principles a
priori; positive or statutory right is what proceeds from the will
of a legislator.
II. Innate Right and Acquired Right. The system of rights may
again be regarded in reference to the implied powers of dealing
morally with others as bound by obligations, that is, as furnishing
a legal title of action in relation to them. Thus viewed, the system
is divided into innate right and acquired right. Innate right is
that right which belongs to every one by nature, independent of all
juridical acts of experience. Acquired right is that right which is
founded upon such juridical acts.
Innate right may also be called the "internal mine and thine"
(meum vel tuum internum) for external right must always be acquired.
There is only one Innate Right, the Birthright of Freedom.
Freedom is independence of the compulsory will of another; and in so
far as it can coexist with the freedom of all according to a universal
law, it is the one sole original, inborn right belonging to every
man in virtue of his humanity. There is, indeed, an innate equality
belonging to every man which consists in his right to be independent
of being bound by others to anything more than that to which he may
also reciprocally bind them. It is, consequently, the inborn quality
of every man in virtue of which he ought to be his own master by right
(sui juris). There is, also, the natural quality of justness
attributable to a man as naturally of unimpeachable right (justi),
because be has done no wrong to any one prior to his own juridical
actions. And, further, there is also the innate right of common action
on the part of every man, so that he may do towards others what does
not infringe their rights or take away anything that is theirs
unless they are willing to appropriate it; such merely to
communicate thought, to narrate anything, or to promise something
whether truly and honestly, or untruly and dishonestly (veriloquim aut
falsiloquim), for it rests entirely upon these others whether they
will believe or trust in it or not.* But all these rights or titles
are already included in the principle of innate freedom, and are not
really distinguished from it, even as dividing members under a
higher species of right.
*It is customary to designate every untruth that is spoken
intentionally as such, although it may be in a frivolous manner a lie,
or falsehood (mendacium), because it may do harm, at least in so far
as any one who repeats it in good faith may be made a laughing-stock
of to others on account of his easy credulity. But in the juridical
sense, only that untruth is called a lie which immediately infringes
the right of another, such as a false allegation of a contract
having been concluded, when the allegation is put forward in order
to deprive some one of what is his (falsiloquim dolosum). This
distinction of conceptions so closely allied is not without
foundation; because on the occasion of a simple statement of one's
thoughts, it is always free for another to take them as he may; and
yet the resulting repute, that such a one is a man whose word cannot
be trusted, comes so close to the opprobrium of directly calling him a
liar, that the boundary-line separating what, in such a case,
belongs to jurisprudence, and what is special to ethics, can hardly be
otherwise drawn.
The reason why such a division into separate rights has been
introduced into the system of natural right, viewed as including all
that is innate, was not without a purpose. Its object was to enable
proof to be more readily put forward in case of any controversy
arising about an acquired right, and questions emerging either with
reference to a fact that might be in doubt, or, if that were
established, in reference to a right under dispute. For the party
repudiating an obligation, and on whom the burden of proof (onus
probandi) might be incumbent, could thus methodically refer to his
innate right of freedom as specified under various relations in
detail, and could therefore found upon them equally as different
titles of right.
In the relation of innate right, and consequently of the internal
mine and thine, there is therefore not rights, but only one right.
And, accordingly, this highest division of rights into innate and
acquired, which evidently consists of two members extremely unequal in
their contents is properly placed in the introduction; and the
subdivisions of the science of right may be referred in detail to
the external mine and thine.
C. Methodical Division of the Science of Right.
The highest division of the system of natural right should not be-
as it is frequently put- into "natural right" and "social right,"
but into natural right and civil right. The first constitutes
private right; the second, public right. For it is not the "social
state" but the "civil state" that is opposed to the "state of nature";
for in the "state of nature" there may well be society of some kind,
but there is no "civil" society, as an institution securing the mine
and thine by public laws. It is thus that right, viewed under
reference to the state of nature, is specially called private right.
The whole of the principles of right will therefore fall to be
expounded under the two subdivisions of private right and public
right.
CH1
FIRST PART. PRIVATE RIGHT.
The System of those Laws Which Require No External Promulgation.
CHAPTER I. Of the Mode of Having Anything External as One's Own.
1. The Meaning of "Mine" in Right
(Meum Juris).
Anything is "Mine" by right, or is rightfully mine, when I am so
connected with it, that if any other person should make use of it
without my consent, he would do me a lesion or injury. The
subjective condition of the use of anything is possession of it.
An external thing, however as such could only be mine, if I may
assume it to be possible that I can be wronged by the use which
another might make of it when it is not actually in my possession.
Hence it would be a contradiction to have anything external as one's
own, were not the conception of possession capable of two different
meanings, as sensible possession that is perceivable by the senses,
and rational possession that is perceivable only by the intellect.
By the former is to be understood a physical possession, and by the
latter, a purely juridical possession of the same object.
The description of an object as "external to me" may signify
either that it is merely "different and distinct from me as a
subject," or that it is also "a thing placed outside of me, and to
be found elsewhere in space or time." Taken in the first sense, the
term possession signifies rational possession; and, in the second
sense, it must mean empirical possession. A rational or intelligible
possession, if such be possible, is possession viewed apart from
physical holding or detention (detentio).
2. Juridical Postulate of the Practical Reason.
It is possible to have any external object of my will as mine. In
other words, a maxim to this effect- were it to become law- that any
object on which the will can be exerted must remain objectively in
itself without an owner, as res nullius, is contrary to the
principle of right.
For an object of any act of my will, is something that it would be
physically within my power to use. Now, suppose there were things that
by right should absolutely not be in our power, or, in other words,
that it would be wrong or inconsistent with the freedom of all,
according to universal law, to make use of them. On this
supposition, freedom would so far be depriving itself of the use of
its voluntary activity, in thus putting useable objects out of all
possibility of use. In practical relations, this would be to
annihilate them, by making them res nullius, notwithstanding the
fact act acts of will in relation to such things would formally
harmonize, in the actual use of them, with the external freedom of all
according to universal laws. Now the pure practical reason lays down
only formal laws as principles to regulate the exercise of the will;
and therefore abstracts from the matter of the act of will, as regards
the other qualities of the object, which is considered only in so
far as it is an object of the activity of the will. Hence the
practical reason cannot contain, in reference to such an object, an
absolute prohibition of its use, because this would involve a
contradiction of external freedom with itself. An object of my free
will, however, is one which I have the physical capability of making
some use of at will, since its use stands in my power (in potentia).
This is to be distinguished from having the object brought under my
disposal (in postestatem meam reductum), which supposes not a
capability merely, but also a particular act of the free-will. But
in order to consider something merely as an object of my will as such,
it is sufficient to be conscious that I have it in my power. It is
therefore an assumption a priori of the practical reason to regard and
treat every object within the range of my free exercise of will as
objectively a possible mine or thine.
This postulate may be called "a permissive law" of the practical
reason, as giving us a special title which we could not evolve out
of the mere conceptions of right generally. And this title constitutes
the right to impose upon all others an obligation, not otherwise
laid upon them, to abstain from the use of certain objects of our free
choice, because we have already taken them into our possession. Reason
wills that this shall be recognised as a valid principle, and it
does so as practical reason; and it is enabled by means of this
postulate a priori to enlarge its range of activity in practice.
3. Possession and Ownership.
Any one who would assert the right to a thing as his must be in
possession of it as an object. Were he not its actual possessor or
owner, he could not be wronged or injured by the use which another
might make of it without his consent. For, should anything external to
him, and in no way connected with him by right, affect this object, it
could not affect himself as a subject, nor do him any wrong, unless he
stood in a relation of ownership to it.
4. Exposition of the Conception of the.
External Mine and Thine.
There can only be three external objects of my will in the
activity of choice:
(1) A corporeal thing external to me;
(2) The free-will of another in the performance of a particular
act (praestatio);
(3) The state of another in relation to myself.
These correspond to the categories of substance, causality, and
reciprocity; and they form the practical relations between me and
external objects, according to the laws of freedom.
A. I can only call a corporeal thing or an object in space "mine,"
when, even although not in physical possession of it, I am able to
assert that I am in possession of it in another real nonphysical
sense. Thus, I am not entitled to call an apple mine merely because
I hold it in my hand or possess it physically; but only when I am
entitled to say, "I possess it, although I have laid it out of my
hand, and wherever it may lie." In like manner, I am not entitled to
say of the ground, on which I may have laid myself down, that
therefore it is mine; but only when I can rightly assert that it still
remains in my possession, although I may have left the spot. For any
one who, in the former appearances of empirical possession, might
wrench the apple out of my hand, or drag me away from my
resting-place, would, indeed, injure me in respect of the inner "mine"
of freedom, but not in respect of the external "mine," unless I
could assert that I was in the possession of the object, even when not
actually holding it physically. And if I could not do this, neither
could I call the apple or the spot mine.
B. I cannot call the performance of something by the action of the
will of another "mine," if I can only say "it has come into my
possession at the same time with a promise" (pactum re initum); but
only if I am able to assert "I am in possession of the will of the
other, so as to determine him to the performance of a particular
act, although the time for the performance of it has not yet come." In
the latter case, the promise belongs to the nature of things
actually held as possessed, and as an active obligation I can reckon
it mine; and this holds good not only if I have the thing promised- as
in the first case- already in my possession, but even although I do
not yet possess it in fact. Hence, I must be able to regard myself
in thought as independent of that empirical form of possession that is
limited by the condition of time and as being, nevertheless, in
possession of the object.
C. I cannot call a wife, a child, a domestic, or, generally, any
other person "mine" merely because I command them at present as
belonging to my household, or because I have them under control, and
in my power and possession. But I can call them mine, if, although
they may have withdrawn themselves from my control and I do not
therefore possess them empirically, I can still say "I possess them by
my mere will, provided they exist anywhere in space or time; and,
consequently, my possession of them is purely juridical." They belong,
in fact, to my possessions, only when and so far as I can assert
this as a matter of right.
5. Definition of the Conception of the
External Mine and Thine.
Definitions are nominal or real. A nominal definition is
sufficient merely to distinguish the object defined from all other
objects, and it springs out of a complete and definite exposition of
its conception. A real definition further suffices for a deduction
of the conception defined, so as to furnish a knowledge of the reality
of the object. The nominal definition of the external "mine" would
thus be: "The external mine is anything outside of myself, such that
any hindrance of my use of it at will would be doing me an injury or
wrong as an infringement of that freedom of mine which may coexist
with the freedom of all others according to a universal law." The real
definition of this conception may be put thus: "The external mine is
anything outside of myself, such that any prevention of my use of it
would be a wrong, although I may not be in possession of it so as to
be actually holding it as an object." I must be in some kind of
possession of an external object, if the object is to be regarded as
mine; for, otherwise, anyone interfering with this object would not,
in doing so, affect me; nor, consequently, would he thereby do me
any wrong. Hence, according to SS 4, a rational possession
(possessio noumenon) must be assumed as possible, if there is to be
rightly an external mine and thine. Empirical possession is thus
only phenomenal possession or holding (detention) of the object in the
sphere of sensible appearance (possessio phenomenon), although the
object which I possess is not regarded in this practical relation as
itself a phenomenon- according to the exposition of the Transcendental
Analytic in the Critique of Pure Reason- but as a thing in itself. For
in the Critique of Pure Reason the interest of reason turns upon the
theoretical knowledge of the nature of things and how far reason can
go in such knowledge. But here reason has to deal with the practical
determination of the action of the will according to laws of
freedom, whether the object is perceivable through the senses or
merely thinkable by the pure understanding. And right, as under
consideration, is a pure practical conception of the reason in
relation to the exercise of the will under laws of freedom.
And, hence, it is not quite correct to speak of "possessing" a right
to this or that object, but it should rather be said that an object is
possessed in a purely juridical way; for a right is itself the
rational possession of an object, and to "possess a possession," would
be an expression without meaning.
6. Deduction of the Conception of a Purely Juridical
Possession of an External Object (Possessio Noumenon).
The question, "How is an external mine and thine possible?" resolves
itself into this other question: "How is a merely juridical or
rational possession possible?" And this second question resolves
itself again into a third: "How is a synthetic proposition in right
possible a priori?"
All propositions of right- as juridical propositions- are
propositions a priori, for they are practical laws of reason
(dictamina rationis). But the juridical proposition a priori
respecting empirical possession is analytical; for it says nothing
more than what follows by the principle of contradiction, from the
conception of such possession; namely, that if I am the holder of a
thing in the way of being physically connected with it, any one
interfering with it without my consent- as, for instance, in wrenching
an apple out of my hand- affects and detracts from my freedom as
that which is internally mine; and consequently the maxim of his
action is in direct contradiction to the axiom of right. The
proposition expressing the principle of an empirical rightful
possession does not therefore go beyond the right of a person in
reference to himself.
On the other hand, the proposition expressing the possibility of the
possession of a thing external to me, after abstraction of all the
conditions of empirical possession in space and time- consequently
presenting the assumption of the possibility of a possessio
noumenon- goes beyond these limiting conditions; and because this
proposition asserts a possession even without physical holding, as
necessary to the conception of the external mine and thine, it is
synthetical. And thus it becomes a problem for reason to show how such
a proposition, extending its range beyond the conception of
empirical possession, is possible a priori.
In this manner, for instance, the act of taking possession of a
particular portion of the soil is a mode exercising the private
free-will without being an act of usurpation. The possessor founds
upon the innate right of common possession of the surface of the
earth, and upon the universal will corresponding a priori to it, which
allows a private possession of the soil; because what are mere
things would be otherwise made in themselves and by a law into
unappropriable objects. Thus a first appropriator acquires
originally by primary possession a particular portion of the ground;
and by right (jure) he resists every other person who would hinder him
in the private use of it, although, while the "state of nature"
continues, this cannot be done by juridical means (de jure), because a
public law does not yet exist.
And although a piece of ground should be regarded as free, or
declared to be such, so as to be for the public use of all without
distinction, yet it cannot be said that it is thus free by nature
and originally so, prior to any juridical act. For there would be a
real relation already incorporated in such a piece of ground by the
very fact that the possession of it was denied to any particular
individual; and as this public freedom of the ground would be a
prohibition of it to every particular individual, this presupposes a
common possession of it which cannot take effect without a contract. A
piece of ground, however, which can only become publicly free by
contract, must actually be in the possession of all those associated
together, who mutually interdict or suspend each other, from any
particular or private use of it.
This original community of the soil and of the things upon it
(communio fundi originaria), is an idea which has objective and
practical juridical reality and is entirely different from the idea of
a primitive community of things, which is a fiction. For the latter
would have had to be founded as a form of society, and must have taken
its rise from a contract by which all renounced the right of private
possession, so that by uniting the property owned by each into a
whole, it was thus transformed into a common possession. But had
such an event taken place, history must have presented some evidence
of it. To regard such a procedure as the original mode of taking
possession, and to hold that the particular possessions of every
individual may and ought to be grounded upon it, is evidently a
contradiction.
Possession (possessio) is to be distinguished from habitation as
mere residence (sedes); and the act of taking possession of the soil
in the intention of acquiring it once for all, is also to be
distinguished from settlement or domicile (incolatus), which is a
continuous private possession of a place that is dependent on the
presence of the individual upon it. We have not here to deal with
the question of domiciliary settlement, as that is a secondary
juridical act which may follow upon possession, or may not occur at
all; for as such it could not involve an original possession, but only
a secondary possession derived from the consent of others.
Simple physical possession, or holding of the soil, involves already
certain relations of right to the thing, although it is certainly
not sufficient to enable me to regard it as mine. Relative to
others, so far as they know, it appears as a first possession in
harmony with the law of external freedom; and, at the same time, it is
embraced in the universal original possession which contains a
priori the fundamental principle of the possibility of a private
possession. Hence to disturb the first occupier or holder of a portion
of the soil in his use of it is a lesion or wrong done to him. The
first taking of possession has therefore a title of right (titulus
possessionis) in its favour, which is simply the principle of the
original common possession; and the saying that "It is well for
those who are in possession" (beati possidentes), when one is not
bound to authenticate his possession, is a principle of natural
right that establishes the juridical act of taking possession, as a
ground of acquisition upon which every first possessor may found.
It has been shown in the Critique of Pure Reason that in theoretical
principles a priori, an intuitional perception a priori must be
supplied in connection with any given conception; and, consequently,
were it a question of a purely theoretical principle, something
would have to be added to the conception of the possession of an
object to make it real. But in respect of the practical principle
under consideration, the procedure is just the converse of the
theoretical process; so that all the conditions of perception which
form the foundation of empirical possession must be abstracted or
taken away in order to extend the range of the juridical conception
beyond the empirical sphere, and in order to be able to apply the
postulate, that every external object of the free activity of my will,
so far as I have it in my power, although not in the possession of it,
may be reckoned as juridically mine.
The possibility of such a possession, with consequent deduction of
the conception of a nonempirical possession, is founded upon the
juridical postulate of the practical reason, that "It is a juridical
duty so to act towards others that what is external and useable may
come into the possession or become the property of some one." And this
postulate is conjoined with the exposition of the conception that what
is externally one's own is founded upon a possession, that is not
physical. The possibility of such a possession, thus conceived,
cannot, however, be proved or comprehended in itself, because it is
a rational conception for which no empirical perception can be
furnished; but it follows as an immediate consequence from the
postulate that has been enunciated. For, if it is necessary to act
according to that juridical principle, the rational or intelligible
condition of a purely juridical possession must also be possible. It
need astonish no one, then, that the theoretical aspect of the
principles of the external mine and thine is lost from view in the
rational sphere of pure intelligence and presents no extension of
knowledge; for the conception of freedom upon which they rest does not
admit of any theoretical deduction of its possibility, and it can only
be inferred from the practical law of reason, called the categorical
imperative, viewed as a fact.
7. Application of the Principle of the Possibility of
an External Mine and Thine to Objects of Experience.
The conception of a purely juridical possession is not an
empirical conception dependent on conditions of space and time, and
yet it has practical reality. As such it must be applicable to objects
of experience, the knowledge of which is independent of the conditions
of space and time. The rational process by which the conception of
right is brought into relation to such objects so as to constitute a
possible external mine and thine, is as follows. The conception of
right, being contained merely in reason, cannot be immediately applied
to objects of experience, so as to give the conception of an empirical
possession, but must be applied directly to the mediating
conception, in the understanding, of possession in general; so that,
instead of physical holding (detentio) as an empirical
representation of possession, the formal conception or thought of
having, abstracted from all conditions of space and time, is conceived
by the mind, and only as implying that an object is in my power and at
my disposal (in potestate mea positum esse). In this relation, the
term external does not signify existence in another place than where I
am, nor my resolution and acceptance at another time than the moment
in which I have the offer of a thing: it signifies only an object
different from or other than myself. Now the practical reason by its
law of right wills, that I shall think the mine and thine in
application to objects, not according to sensible conditions, but
apart from these and from the possession they indicate; because they
refer to determinations of the activity of the will that are in
accordance with the laws of freedom. For it is only a conception of
the understanding that can be brought under the rational conception of
right. I may therefore say that I possess a field, although it is in
quite a different place from that on which I actually find myself. For
the question here is not concerning an intellectual relation to the
object, but I have the thing practically in my power and at my
disposal, which is a conception of possession realized by the
understanding and independent of relations of space; and it is mine,
because my will, in determining itself to any particular use of it, is
not in conflict with the law of external freedom. Now it is just in
abstraction from physical possession of the object of my free-will
in the sphere of sense, that the practical reason wills that a
rational possession of it shall be thought, according to
intellectual conceptions which are not empirical, but contain a priori
the conditions of rational possession. Hence it is in this fact,
that we found the ground of the validity of such a rational conception
of possession possessio noumenon) as a principle of a universally
valid legislation. For such a legislation is implied and contained
in the expression, "This external object is mine," because an
obligation is thereby imposed upon all others in respect of it, who
would otherwise not have been obliged to abstain from the use of
this object.
The mode, then, of having something external to myself as mine,
consists in a specially juridical connection of the will of the
subject with that object, independently of the empirical relations
to it in space and in time, and in accordance with the conception of a
rational possession. A particular spot on the earth is not
externally mine because I occupy it with my body; for the question
here discussed refers only to my external freedom, and consequently it
affects only the possession of myself, which is not a thing external
to me, and therefore only involves an internal right. But if I
continue to be in possession of the spot, although I have taken myself
away from it and gone to another place, only under that condition is
my external right concerned in connection with it. And to make the
continuous possession of this spot by my person a condition of
having it as mine, must either be to assert that it is not possible at
all to have anything external as one's own, which is contrary to the
postulate in SS 2, or to require, in order that this external
possession may be possible, that I shall be in two places at the
same time. But this amounts to saying that I must be in a place and
also not in it, which is contradictory and absurd.
This position may be applied to the case in which I have accepted
a promise; for my having and possession in respect of what has been
promised become established on the ground of external right. This
right is not to be annulled by the fact that the promiser having
said at one time, "This thing shall be yours," again at a subsequent
time says, "My will now is that the thing shall not be yours." In such
relations of rational right, the conditions hold just the same as if
the promiser had, without any interval of time between them, made
the two declarations of his will, "This shall be yours," and also
"This shall not be yours"; which manifestly contradicts itself.
The same thing holds, in like manner, of the conception of the
juridical possession of a person as belonging to the Having of a
subject, whether it be a wife, a child, or a servant. The relations of
right involved in a household, and the reciprocal possession of all
its members, are not annulled by the capability of separating from
each other in space; because it is by juridical relations that they
are connected, and the external mine and thine, as in the former
cases, rests entirely upon the assumption of the possibility of a
purely rational possession, without the accompaniment of physical
detention or holding of the object.
Reason is forced to a critique of its juridically practical function
in special reference to the conception of the external mine and thine,
by the antinomy of the propositions enunciated regarding the
possibility of such a form of possession. For these give rise to an
inevitable dialectic, in which a thesis and an antithesis set up equal
claims to the validity of two conflicting conditions. Reason is thus
compelled, in its practical function in relation to right- as it was
in its theoretical function- to make a distinction between
possession as a phenomenal appearance presented to the senses, and
that possession which is rational and thinkable only by the
understanding.
Thesis.- The thesis, in this case, is: "It is possible to have
something external as mine, although I am not in possession of it."
Antithesis.- The antithesis is: "It is not possible to have anything
external as mine, if I am not in possession of it."
Solution.- The solution is: "Both Propositions are true"; the former
when I mean empirical possession (possessio phaenomenon), the latter
when I understand by the same term, a purely rational possession
(possessio noumenon).
But the possibility of a rational possession, and consequently of an
external mine and thine, cannot be comprehended by direct insight, but
must be deduced from the practical reason. And in this relation it
is specially noteworthy that the practical reason without
intuitional perceptions, and even without requiring such an element
a priori, can extend its range by the mere elimination of empirical
conditions, as justified by the law of freedom, and can thus establish
synthetical propositions a priori. The proof of this in the
practical connection, as will be shown afterwards, can be adduced in
an analytical manner.
8. To Have Anything External as One's Own is only Possible
in a Juridical or Civil State of Society under the
Regulation of a Public Legislative Power.
If, by word or deed, I declare my will that some external thing
shall be mine, I make a declaration that every other person is obliged
to abstain from the use of this object of my exercise of will; and
this imposes an obligation which no one would be under, without such a
juridical act on my part. But the assumption of this act at the same
time involves the admission that I am obliged reciprocally to
observe a similar abstention towards every other in respect of what is
externally theirs; for the obligation in question arises from a
universal rule regulating the external juridical relations. Hence I am
not obliged to let alone what another person declares to be externally
his, unless every other person likewise secures me by a guarantee that
he will act in relation to what is mine, upon the same principle. This
guarantee of reciprocal and mutual abstention from what belongs to
others does not require a special juridical act for its establishment,
but is already involved in the conception of an external obligation of
right, on account of the universality and consequently the reciprocity
of the obligatoriness arising from a universal Rule. Now a single
will, in relation to an external and consequently contingent
possession, cannot serve as a compulsory law for all, because that
would be to do violence to the freedom which is in accordance with
universal laws. Therefore it is only a will that binds every one,
and as such a common, collective, and authoritative will, that can
furnish a guarantee of security to all. But the state of men under a
universal, external, and public legislation, conjoined with
authority and power, is called the civil state. There can therefore be
an external mine and thine only in the civil state of society.
Consequence.- It follows, as a corollary, that, if it is juridically
possible to have an external object as one's own, the individual
subject of possession must be allowed to compel or constrain every
person with whom a dispute as to the mine or thine of such a
possession may arise, to enter along with himself into the relations
of a civil constitution.
9. There May, However, Be an External Mine and Thine Found as
a Fact in the State of Nature, but it is only Provisory.
Natural right in the state of a civil constitution means the forms
of right which may be deduced from principles a priori as the
conditions of such a constitution. It is therefore not to be infringed
by the statutory laws of such a constitution; and accordingly the
juridical principle remains in force, that, "Whoever proceeds upon a
maxim by which it becomes impossible for me to have an object of the
exercise of my will as mine, does me a lesion or injury." For a
civil constitution is only the juridical condition under which every
one has what is his own merely secured to him, as distinguished from
its being specially assigned and determined to him. All guarantee,
therefore, assumes that everyone to whom a thing is secured is already
in possession of it as his own. Hence, prior to the civil
constitution- or apart from it- an external mine and thine must be
assumed as possible, and along with it a right to compel everyone with
whom we could come into any kind of intercourse to enter with us
into a constitution in which what is mine or thine can be secured.
There may thus be a possession in expectation or in preparation for
such a state of security, as can only be established on the law of the
common will; and as it is therefore in accordance with the possibility
of such a state, it constitutes a provisory or temporary juridical
possession; whereas that possession which is found in reality in the
civil state of society will be a peremptory or guaranteed
possession. Prior to entering into this state, for which he is
naturally prepared, the individual rightfully resists those who will
not adapt themselves to it, and who would disturb him in his provisory
possession; because, if the will of all except himself were imposing
upon him an obligation to withdraw from a certain possession, it would
still be only a one-sided or unilateral will, and consequently it
would have just as little legal title- which can be properly based
only on the universalized will- to contest a claim of right as he
would have to assert it. Yet be has the advantage on his side, of
being in accord with the conditions requisite to the introduction
and institution of a civil form of society. In a word, the mode in
which anything external may be held as one's own in the state of
nature, is just physical possession with a presumption of right thus
far in its favour, that by union of the wills of all in a public
legislation it will be made juridical; and in this expectation it
holds comparatively, as a kind of potential juridical possession.
This prerogative of right, as arising from the fact of empirical
possession, is in accordance with the formula: "It is well for those
who are in possession" (Beati possidentes). It does not consist in the
fact that, because the possessor has the presumption of being a
rightful man, it is unnecessary for him to bring forward proof that he
possesses a certain thing rightfully, for this position applies only
to a case of disputed right. But it is because it accords with the
postulate of the practical reason, that everyone is invested with
the faculty of having as his own any external object upon which he has
exerted his will; and, consequently, all actual possession is a
state whose rightfulness is established upon that postulate by an
anterior act of will. And such an act, if there be no prior possession
of the same object by another opposed to it, does, therefore,
provisionally justify and entitle me, according to the law of external
freedom, to restrain anyone who refuses to enter with me into a
state of public legal freedom from all pretension to the use of such
an object. For such a procedure is requisite, in conformity with the
postulate of reason, in order to subject to my proper use a thing
which would otherwise be practically annihilated, as regards all
proper use of it.
CH2
FIRST PART. PRIVATE RIGHT.
The System of those Laws Which Require No External Promulgation.
CHAPTER II. The Mode of Acquiring Anything External.
10. The General Principle of External Acquisition.
I acquire a thing when I act (efficio) so that it becomes mine. An
external thing is originally mine when it is mine even without the
intervention of a juridical act. An acquisition is original and
primary when it is not derived from what another had already made
his own.
There is nothing external that is as such originally mine; but
anything external may be originally acquired when it is an object that
no other person has yet made his. A state in which the mine and
thine are in common cannot be conceived as having been at any time
original. Such a state of things would have to be acquired by an
external juridical act, although there may be an original and common
possession of an external object. Even if we think hypothetically of a
state in which the mine and thine would be originally in common as a
communio mei et tui originaria, it would still have to be
distinguished from a primeval communion (communio primaeva) with
things in common, sometimes supposed to be founded in the first period
of the relations of right among men, and which could not be regarded
as based upon principles like the former, but only upon history.
Even under that condition the historic communio, as a supposed
primeval community, would always have to be viewed as acquired and
derivative (communio derivativa).
The principle of external acquisition, then, may be expressed
thus: "Whatever I bring under my power according to the law of
external freedom, of which as an object of my free activity of will
I have the capability of making use according to the postulate of
the practical reason, and which I will to become mine in conformity
with the idea of a possible united common will, is mine."
The practical elements (momenta attendenda) constitutive of the
process of original acquisition are:
1. Prehension or seizure of an object which belongs to no one;
for, if it belonged already to some one, the act would conflict with
the freedom of others, that is, according to universal laws. This is
the taking possession of an object of my free activity of will in
space and time; the possession, therefore, into which I thus put
myself is sensible or physical possession (possessio phenomenon);
2. Declaration of the possession of this object by formal
designation and the act of my freewill in interdicting every other
person from using it as his;
3. Appropriation, as the act, in idea, of an externally
legislative common will, by which all and each are obliged to
respect and act in conformity with my act of will.
The validity of the last element in the process of acquisition, as
that on which the conclusion that "the external object is mine" rests,
is what makes the possession valid as a purely rational and
juridical possession (possessio noumenon). It is founded upon the fact
that, as all these acts are juridical, they consequently proceed
from the practical reason, and therefore, in the question as to what
is right, abstraction may be made of the empirical conditions
involved, and the conclusion, "the external object is mine," thus
becomes a correct inference from the external fact of sensible
possession to the internal right of rational possession.
The original primary acquisition of an external object of the action
of the will, is called occupancy. It can only take place in
reference to substances or corporeal things. Now when this
occupation of an external object does take place, the act presupposes,
as a condition of such empirical possession, its priority in time
before the act of any other who may also be willing to enter upon
occupation of it. Hence the legal maxim: "qui prior tempore, potior
jure." Such occupation as original or primary is, further, the
effect only of a single or unilateral will; for were a bilateral or
twofold will requisite for it, it would be derived from a contract
of two or more persons with each other, and consequently it would be
based upon what another or others had already made their own. It is
not easy to see how such an act of free-will as this would be could
really form a foundation for every one having his own. However, the
first acquisition of a thing is on that account not quite exactly
the same as the original acquisition of it. For the acquisition of a
public juridical state by union of the wills of all in a universal
legislation would be such an original acquisition, seeing that no
other of the kind could precede it, and yet it would be derived from
the particular wills of all the individuals, and consequently become
all-sided or omnilateral; for a properly primary acquisition can
only proceed from an individual or unilateral or unilateral will.
DIVISION OF THE SUBJECT OF THE ACQUISITION OF THE EXTERNAL
MINE AND THINE.
I. In respect of the matter of object of acquisition, I acquire
either a corporeal thing (substance), or the performance of
something by another (causality), or this other as a person in respect
of his state, so far as I have a right to dispose of the same (in a
relation of reciprocity with him).
II. In respect of the form or mode of acquisition, it is either a
real right (jus reale), or a personal right (jus personale), or a
real-personal right (jus realiter personale), to the possession
although not to the use, of another person as if he were a thing.
III. In respect of the ground of right or the title (titulus) of
acquisition- which, properly, is not a particular member of the
division of rights, but rather a constituent element of the mode of
exercising them- anything external is acquired by a certain free
exercise of will that is either unilateral, as the act of a single
will (facto), or bilateral, as the act of two wills (pacto), or
omnilateral, as the act of all the wills of a community together
(lege).
SECTION I. Principles of Real Right.
11. What is a Real Right?
The usual definition of real right, or "right in a thing" (jus
reale, jus in re), is that "it is a right as against every possessor
of it." This is a correct nominal definition. But what is it that
entitles me to claim an external object from any one who may appear as
its possessor, and to compel him, per vindicationem, to put me
again, in place of himself, into possession of it? Is this external
juridical relation of my will a kind of immediate relation to an
external thing? If so, whoever might think of his right as referring
not immediately to persons but to things would have to represent it,
although only in an obscure way, somewhat thus. A right on one side
has always a duty corresponding to it on the other, so that an
external thing, although away from the hands of its first possessor,
continues to be still connected with him by a continuing obligation;
and thus it refuses to fall under the claim of any other possessor,
because it is already bound to another. In this way my right, viewed
as a kind of good genius accompanying a thing and preserving it from
all external attack, would refer an alien possessor always to me! It
is, however, absurd to think of an obligation of persons towards
things, and conversely; although it may be allowed in any particular
case to represent the juridical relation by a sensible image of this
kind, and to express it in this way.
The real definition would run thus: "Right in a thing is a right
to the private use of a thing, of which I am in possession- original
or derivative- in common with all others." For this is the one
condition under which it is alone possible that I can exclude every
others possessor from the private use of the thing (jus contra
quemlibet hujus rei possessorem). For, except by presupposing such a
common collective possession, it cannot be conceived how, when I am
not in actual possession of a thing, I could be injured or wronged
by others who are in possession of it and use it. By an individual act
of my own will I cannot oblige any other person to abstain from the
use of a thing in respect of which he would otherwise be under no
obligation; and, accordingly, such an obligation can only arise from
the collective will of all united in a relation of common
possession. Otherwise, I would have to think of a right in a thing, as
if the thing has an obligation towards me, and as if the right as
against every possessor of it had to be derived from this obligation
in the thing, which is an absurd way of representing the subject.
Further, by the term real right (jus reale) is meant not only the
right in a thing (jus in re), but also the constitutive principle of
all the laws which relate to the real mine and thine. It is,
however, evident that a man entirely alone upon the earth could
properly neither have nor acquire any external thing as his own;
because, between him as a person and all external things as material
objects, there could be no relations of obligation. There is
therefore, literally, no direct right in a thing, but only that
right is to be properly called "real" which belongs to any one as
constituted against a person, who is in common possession of things
with all others in the civil state of society.
12. The First Acquisition of a Thing can only
be that of the Soil.
By the soil is understood all habitable Land. In relation to
everything that is moveable upon it, it is to be regarded as a
substance, and the mode of the existence of the moveables is viewed as
an inherence in it. And just as, in the theoretical acceptance,
accidents cannot exist apart from their substances, so, in the
practical relation, moveables upon the soil cannot be regarded as
belonging to any one unless he is supposed to have been previously
in juridical possession of the soil, so that it is thus considered
to be his.
For, let it be supposed that the soil belongs to no one. Then I
would be entitled to remove every moveable thing found upon it from
its place, even to total loss of it, in order to occupy that place,
without infringing thereby on the freedom of any other; there being,
by the hypothesis, no possessor of it at all. But everything that
can be destroyed, such as a tree, a house, and such like- as regards
its matter at least- is moveable; and if we call a thing which
cannot be moved without destruction of its form an immoveable, the
mine and thine in it is not understood as applying to its substance,
but to that which is adherent to it and which does not essentially
constitute the thing itself.
13. Every Part of the Soil may be Originally Acquired; and
the Principle of the Possibility of such Acquisition
is the Original Community of the Soil Generally.
The first clause of this proposition is founded upon the postulate
of the practical reason (SS 2); the second is established by the
following proof.
All men are originally and before any juridical act of will in
rightful possession of the soil; that is, they have a right to be
wherever nature or chance has placed them without their will.
Possession (possessio), which is to be distinguished from
residential settlement (sedes) as a voluntary, acquired, and permanent
possession, becomes common possession, on account of the connection
with each other of all the places on the surface of the earth as a
globe. For, had the surface of the earth been an infinite plain, men
could have been so dispersed upon it that they might not have come
into any necessary communion with each other, and a state of social
community would not have been a necessary consequence of their
existence upon the earth. Now that possession proper to all men upon
the earth, which is prior to all their particular juridical acts,
constitutes an original possession in common (communio possessionis
originaria). The conception of such an original, common possession
of things is not derived from experience, nor is it dependent on
conditions of time, as is the case with the imaginary and
indemonstrable fiction of a primaeval community of possession in
actual history. Hence it is a practical conception of reason,
involving in itself the only principle according to which men may
use the place they happen to occupy on the surface of the earth, in
accordance with laws of right.
14. The Juridical Act of this Original
Acquisition is Occupancy.
The act of taking possession (apprehensio), being at its beginning
the physical appropriation of a corporeal thing in space (possessionis
physicae), can accord with the law of the external freedom of all,
under no other condition than that of its priority in respect of time.
In this relation it must have the characteristic of a first act in the
way of taking possession, as a free exercise of will. The activity
of will, however, as determining that the thing- in this case a
definite separate place on the surface of the earth- shall be mine,
being an act of appropriation, cannot be otherwise in the case of
original acquisition than individual or unilateral (voluntas
unilateralis s. propria). Now, occupancy is the acquisition of an
external object by an individual act of will. The original acquisition
of such an object as a limited portion of the soil can therefore
only be accomplished by an act of occupation.
The possibility of this mode of acquisition cannot be intuitively
apprehended by pure reason in any way, nor established by its
principles, but is an immediate consequence from the postulate of
the practical reason. The will as practical reason, however, cannot
justify external acquisition otherwise than only in so far as it is
itself included in an absolutely authoritative will, with which it
is united by implication; or, in other words, only in so far as it
is contained within a union of the wills of all who come into
practical relation with each other. For an individual, unilateral
will- and the same applies to a dual or other particular will-
cannot impose on all an obligation which is contingent in itself. This
requires an omnilateral or universal will, which is not contingent,
but a priori, and which is therefore necessarily united and
legislative. Only in accordance with such a principle can there be
agreement of the active free-will of each individual with the
freedom of all, and consequently rights in general, or even the
possibility of an external mine and thine.
15. It is Only within a Civil Constitution that Anything can
be Acquired Peremptorily, whereas in the State of Nature
Acquisition can only be Provisory.
A civil constitution is objectively necessary as a duty, although
subjectively its reality is contingent. Hence, there is connected with
it a real natural law of right, to which all external acquisition is
subjected.
The empirical title of acquisition has been shown to be
constituted by the taking physical possession (apprehensio physica) as
founded upon an original community of right in all to the soil. And
because a possession in the phenomenal sphere of sense can only be
subordinated to that possession which is in accordance with rational
conceptions of right, there must correspond to this physical act of
possession a rational mode of taking possession by elimination of
all the empirical conditions in space and time. This rational form
of possession establishes the proposition that "whatever I bring under
my power in accordance with laws of external freedom, and will that it
shall be mine, becomes mine."
The rational title of acquisition can therefore only lie
originally in the idea of the will of all united implicitly, or
necessarily to be united, which is here tacitly assumed as an
indispensable condition (conditio sine qua non). For by a single
will there cannot be imposed upon others an obligation by which they
would not have been otherwise bound. But the fact formed by wills
actually and universally united in a legislation constitutes the civil
state of society. Hence, it is only in conformity with the idea of a
civil state of society, or in reference to it and its realization,
that anything external can be acquired. Before such a state is
realized, and in anticipation of it, acquisition, which would
otherwise be derived, is consequently only provisory. The
acquisition which is peremptory finds place only in the civil state.
Nevertheless, such provisory acquisition is real acquisition. For,
according to the postulate of the juridically practical reason, the
possibility of acquisition in whatever state men may happen to be
living beside one another, and therefore in the state of nature as
well, is a principle of private right. And in accordance with this
principle, every one is justified or entitled to exercise that
compulsion by which it alone becomes possible to pass out of the state
of nature and to enter into that state of civil society which alone
can make all acquisition peremptory.
It is a question as to how far the right of taking possession of the
soil extends. The answer is, So far as the capability of having it
under one's power extends; that is, just as far as he who wills to
appropriate it can defend it, as if the soil were to say: "If you
cannot protect me, neither can you command me." In this way the
controversy about what constitutes a free or closed sea must be
decided. Thus, within the range of a cannon-shot no one has a right to
intrude on the coast of a country that already belongs to a certain
state, in order to fish or gather amber on the shore, or such like.
Further, the question is put, "Is cultivation of the soil, by
building, agriculture, drainage, etc., necessary in order to its
acquisition?" No. For, as these processes as forms of specification
are only accidents, they do not constitute objects of immediate
possession and can only belong to the subject in so far as the
substance of them has been already recognized as his. When it is a
question of the first acquisition of a thing, the cultivation or
modification of it by labour forms nothing more than an external
sign of the fact that it has been taken into possession, and this
can be indicated by many other signs that cost less trouble. Again:
"May any one be hindered in the act of taking possession, so that
neither one nor other of two competitors shall acquire the right of
priority, and the soil in consequence may remain for all time free
as belonging to no one?" Not at all. Such a hindrance cannot be
allowed to take place, because the second of the two, in order to be
enabled to do this, would himself have to be upon some neighbouring
soil, where he also, in this manner, could be hindered from being, and
such absolute hindering would involve a contradiction. It would,
however, be quite consistent with the right of occupation, in the case
of a certain intervening piece of the soil, to let it lie unused as
a neutral ground for the separation of two neighbouring states; but
under such a condition, that ground would actually belong to them both
in common, and would not be without an owner (res nullius), just
because it would be used by both in order to form a separation between
them. Again: "May one have a thing as his, on a soil of which no one
has appropriated any part as his own?" Yes. In Mongolia, for
example, any one may let lie whatever baggage he has, or bring back
the horse that has run away from him into his possession as his own,
because the whole soil belongs to the people generally, and the use of
it accordingly belongs to every individual. But that any one can
have a moveable thing on the soil of another as his own is only
possible by contract. Finally, there is the question: "May one of
two neighbouring nations or tribes resist another when attempting to
impose upon them a certain mode of using a particular soil; as, for
instance, a tribe of hunters making such an attempt in relation to a
pastoral people, or the latter to agriculturists and such like?"
Certainly. For the mode in which such peoples or tribes may settle
themselves upon the surface of the earth, provided they keep within
their own boundaries, is a matter of mere pleasure and choice on their
own part (res merae facultatis).
As a further question, it may be asked whether, when neither
nature nor chance, but merely our own will, brings us into the
neighbourhood of a people that gives no promise of a prospect of
entering into civil union with us, we are to be considered entitled in
any case to proceed with force in the intention of founding such a
union, and bringing into a juridical state such men as the savage
American Indians, the Hottentots,and the New Hollanders; or- and the
case is not much better- whether we may establish colonies by
deceptive purchase, and so become owners of their soil, and, in
general, without regard to their first possession, make use at will of
our superiority in relation to them? Further, may it not be held
that Nature herself, as abhorring a vacuum, seems to demand such a
procedure, and that large regions in other continents, that are now
magnificently peopled, would otherwise have remained unpossessed by
civilized inhabitants and might have for ever remained thus, so that
the end of creation would have so far been frustrated? It is almost
unnecessary to answer; for it is easy to see through all this flimsy
veil of injustice, which just amounts to the Jesuitism of making a
good end justify any means. This mode of acquiring the soil is,
therefore, to be repudiated.
The indefiniteness of external acquirable objects in respect of
their quantity, as well as their quality, makes the problem of the
sole primary external acquisition of them one of the most difficult to
solve. There must, however, be some one first acquisition of an
external object; for every Acquisition cannot be derivative. Hence,
the problem is not to be given up as insoluble or in itself as
impossible. If it is solved by reference to the original contract,
unless this contract is extended so as to include the whole human
race, acquisition under it would still remain but provisional.
16. Exposition of the Conception of a Primary
Acquisition of the Soil.
All men are originally in a common collective possession of the soil
of the whole earth (communio fundi originaria), and they have
naturally each a will to use it (lex justi). But on account of the
opposition of the free will of one to that of the other in the
sphere of action, which is inevitable by nature, all use of the soil
would be prevented did not every will contain at the same time a law
for the regulation of the relation of all wills in action, according
to which a particular possession can be determined to every one upon
the common soil. This is the juridical law (lex juridica). But the
distributive law of the mine and thine, as applicable to each
individual on the soil, according to the axiom of external freedom,
cannot proceed otherwise than from a primarily united will a priori-
which does not presuppose any juridical act as requisite for this
union. This Law can only take form in the civil state (lex justitiae
distributivae); as it is in this state alone that the united common
will determines what is right, what is rightful, and what is the
constitution of Right. In reference to this state, however- and
prior to its establishment and in view of it- it is provisorily a duty
for every one to proceed according to the law of external acquisition;
and accordingly it is a juridical procedure on the part of the will to
lay every one under obligation to recognise the act of possessing
and appropriating, although it be only unilaterally. Hence a provisory
acquisition of the soil, with all its juridical consequences, is
possible in the state of nature.
Such an acquisition, however, requires and also obtains the favour
of a permissive law (lex permissiva), in respect of the
determination of the limits of juridically possible possession. For it
precedes the juridical state, and as merely introductory to it is
not yet peremptory; and this favour does not extend farther than the
date of the consent of the other co-operators in the establishment
of the civil state. But if they are opposed to entering into the civil
state, as long as this opposition lasts it carries all the effect of a
guaranteed juridical acquisition with it, because the advance from the
state of nature to the civil state is founded upon a duty.
17. Deduction of the Conception of the Original
Primary Acquisition.
We have found the title of acquisition in a universal original
community of the soil, under the conditions of an external acquisition
in space; and the mode of acquisition is contained in the empirical
fact of taking possession (apprehensio), conjoined with the will to
have an external object as one's own. It is further necessary to
unfold, from the principles of the pure juridically practical reason
involved in the conception, the juridical acquisition proper of an
object- that is, the external mine and thine that follows from the two
previous conditions, as rational possession (possessio noumenon).
The juridical conception of the external mine and thine, so far as
it involves the category of substance, cannot by "that which is
external to me" mean merely "in a place other than that in which I
am"; for it is a rational conception. As under the conceptions of
the reason only intellectual conceptions can be embraced, the
expression in question can only signify "something that is different
and distinct from me" according to the idea of a non-empirical
possession through, as it were, a continuous activity in taking
possession of an external object; and it involves only the notion of
having something in my power, which indicates the connection of an
object with myself, as a subjective condition of the possibility of
making use of it. This forms a purely intellectual conception of the
understanding. Now we can leave out or abstract from the sensible
conditions of possession, as relations of a person to objects which
have no obligation. This process of elimination just gives the
rational relation of a person to persons; and it is such that he can
bind them all by an obligation in reference to the use of things
through his act of will, so far as it is conformable to the axiom of
freedom, the postulate of right, and the universal legislation of
the common will, conceived as united a priori. This is therefore the
rational intelligible possession of things as by pure right,
although they are objects of sense.
It is evident that the first modification, limitation, or
transformation generally, of a portion of the soil cannot of itself
furnish a title to its acquisition, since possession of an accident
does not form a ground for legal possession of the substance.
Rather, conversely, the inference as to the mine and thine must be
drawn from ownership of the substance according to the rule:
Accessarium sequitur suum principale. Hence one who has spent labour
on a piece of ground that was not already his own, has lost his effort
and work to the former owner. This position is so evident of itself
that the old opinion to the opposite effect, that is still spread
far and wide, can hardly be ascribed to any other than the
prevailing illusion which unconsciously leads to the personification
of things; and, then, as if they could be bound under an obligation by
the labour bestowed upon them to be at the service of the person who
does the labour, to regard them as his by immediate right. Otherwise
it is probable that the natural question- already discussed- would not
have been passed over with so light a tread, namely: "How is a right
in a thing possible?" For, right as against every possible possessor
of a thing means only the claim of a particular will to the use of
an object so far as it may be included in the all-comprehending
universal will, and can be thought as in harmony with its law.
As regards bodies situated upon a piece of ground which is already
mine, if they otherwise belong to no other person, they belong to me
without my requiring any particular juridical act for the purpose of
this acquisition; they are mine not facto, but lege. For they may be
regarded as accidents inhering in the substance of the soil, and
they are thus mine jure rei meae. To this category also belongs
everything which is so connected with anything of mine that it
cannot be separated from what is mine without altering it
substantially. Examples of this are gilding on an object, mixture of a
material belonging to me with other things, alluvial deposit, or
even alteration of the adjoining bed of a stream or river in my favour
so as to produce an increase of my land, etc. By the same
principles, the question must also be decided as to whether the
acquirable soil may extend farther than the existing land, so as
even to include part of the bed of the sea, with the right to fish
on my own shores, to gather amber and such like. So far as I have
the mechanical capability from my own site, as the place I occupy,
to secure my soil from the attack of others- and, therefore, as far as
cannon can carry from the shore- all is included in my possession, and
the sea is thus far closed (mare clausum). But as there is no site for
occupation upon the wide sea itself, possible possession cannot be
extended so far, and the open sea is free (mare liberum). But in the
case of men, or things that belong to them, becoming stranded on the
shore, since the fact is not voluntary, it cannot be regarded by the
owner of the shore as giving him a right of acquisition. For shipwreck
is not an act of will, nor is its result a lesion to him; and things
which may have come thus upon his soil, as still belonging to some
one, are not to be treated as being without an owner or res nullius.
On the other hand, a river, so far as possession of the bank
reaches, may be originally acquired, like any other piece of ground,
under the above restrictions, by one who is in possession of both
its banks.
PROPERTY.
An external object, which in respect of its substance can be claimed
by some one as his own, is called the property (dominium) of that
person to whom all the rights in it as a thing belong- like the
accidents inhering in a substance- and which, therefore, he as the
proprietor (dominus) can dispose of at will (jus disponendi de re
sua). But from this it follows at once that such an object can only be
a corporeal thing towards which there is no direct personal
obligation. Hence a man may be his own master (sui juris) but not
the proprietor of himself (sui dominus), so as to be able to dispose
of himself at will, to say nothing of the possibility of such a
relation to other men; because he is responsible to humanity in his
own person. This point, however, as belonging to the right of humanity
as such, rather than to that of individual men, would not be discussed
at its proper place here, but is only mentioned incidentally for the
better elucidation of what has just been said. It may be further
observed that there may be two full proprietors of one and the same
thing, without there being a mine and thine in common, but only in
so far as they are common possessors of what belongs only to one of
them as his own. In such a case the whole possession, without the
use of the thing, belongs to one only of the co-proprietors
(condomini); while to the others belongs all the use of the thing
along with its possession. The former as the direct proprietor
(dominus directus), therefore, restricts the latter as the
proprietor in use (dominus utilis) to the condition of a certain
continuous performance, with reference to the thing itself, without
limiting him in the use of it.
SECTION II. Principles of Personal Right.
18. Nature and Acquisition of Personal Right.
The possession of the active free-will of another person, as the
power to determine it by my will to a certain action, according to
laws of freedom, is a form of right relating to the external mine
and thine, as affected by the causality of another. It is possible
to have several such rights in reference to the same person or to
different persons. The principle of the system of laws, according to
which I can be in such possession, is that of personal right, and
there is only one such principle.
The acquisition of a personal right can never be primary or
arbitrary; for such a mode of acquiring it would not be in
accordance with the principle of the harmony of the freedom of my will
with the freedom of every other, and it would therefore be wrong.
Nor can such a right be acquired by means of any unjust act of another
(facto injusti alterius), as being itself contrary to right; for if
such a wrong as it implies were perpetrated on me, and I could
demand satisfaction from the other, in accordance with right, yet in
such a case I would only be entitled to maintain undiminished what was
mine, and not to acquire anything more than what I formerly had.
Acquisition by means of the action of another, to which I
determine his will according to laws of right, is therefore always
derived from what that other has as his own. This derivation, as a
juridical act, cannot be effected by a mere negative relinquishment or
renunciation of what is his (per derelictionem aut renunciationem);
because such a negative act would only amount to a cessation of his
right, and not to the acquirement of a right on the part of another.
It is therefore only by positive transference (translatio), or
conveyance, that a personal right can be acquired; and this is only
possible by means of a common will, through which objects come into
the power of one or other, so that as one renounces a particular thing
which he holds under the common right, the same object when accepted
by another, in consequence of a positive act of will, becomes his.
Such transference of the property of one to another is termed its
alienation. The act of the united wills of two persons, by which
what belonged to one passes to the other, constitutes contract.
19. Acquisition by Contract.
In every contract there are four juridical acts of will involved;
two of them being preparatory acts, and two of them constitutive acts.
The two preparatory acts, as forms of treating in the transaction, are
offer (oblatio) and approval (approbatio); the two constitutive
acts, as the forms of concluding the transaction, are promise
(promissum) and acceptance (acceptatio). For an offer cannot
constitute a promise before it can be judged that the thing offered
(oblatum) is something that is agreeable to the party to whom it is
offered, and this much is shown by the first two declarations; but
by them alone there is nothing as yet acquired.
Further, it is neither by the particular will of the promiser nor
that of the acceptor that the property of the former passes over to
the latter. This is effected only by the combined or united wills of
both, and consequently so far only as the will of both is declared
at the same time or simultaneously. Now, such simultaneousness is
impossible by empirical acts of declaration, which can only follow
each other in time and are never actually simultaneous. For if I
have promised, and another person is now merely willing to accept,
during the interval before actual acceptance, however short it may be,
I may retract my offer, because I am thus far still free; and, on
the other side, the acceptor, for the same reason, may likewise hold
himself not to be bound, up till the moment of acceptance, by his
counter-declaration following upon the promise. The external
formalities or solemnities (solemnia) on the conclusion of a contract-
such as shaking hands or breaking a straw (stipula) laid hold of by
two persons- and all the various modes of confirming the
declarations on either side, prove in fact the embarrassment of the
contracting parties as to how and in what way they may represent
declarations, which are always successive, as existing
simultaneously at the same moment; and these forms fail to do this.
They are, by their very nature, acts necessarily following each
other in time, so that when the one act is, the other either is not
yet or is no longer.
It is only the philosophical transcendental deduction of the
conception of acquisition by contract that can remove all these
difficulties. In a juridical external relation, my taking possession
of the free-will of another, as the cause that determined it to a
certain act, is conceived at first empirically by means of the
declaration and counter-declaration of the free-will of each of us
in time, as the sensible conditions of taking possession; and the
two juridical acts must necessarily be regarded as following one
another in time. But because this relation, viewed as juridical, is
purely rational in itself, the will as a law-giving faculty of
reason represents this possession as intelligible or rational
(possessio noumenon), in accordance with conceptions of freedom and
under abstraction of those empirical conditions. And now, the two acts
of promise and acceptance are not regarded as following one another in
time, but, in the manner of a pactum re initum, as proceeding from a
common will, which is expressed by the term "at the same time," or
"simultaneous," and the object promised (promissum) is represented,
under elimination of empirical conditions, as acquired according to
the law of the pure practical reason.
That this is the true and only possible deduction of the idea of
acquisition by contract is sufficiently attested by the laborious
yet always futile striving of writers on jurisprudence such as Moses
Mendelssohn in his Jerusalem- to adduce a proof of its rational
possibility. The question is put thus: "Why ought I to keep my
Promise?" For it is assumed as understood by all that I ought to do
so. It is, however, absolutely impossible to give any further proof of
the categorical imperative implied; just as it is impossible for the
geometrician to prove by rational syllogisms that in order to
construct a triangle I must take three lines- so far an analytical
proposition- of which three lines any two together must be greater
than the third- a synthetical proposition, and like the former a
priori. It is a postulate of the pure reason that we ought to abstract
from all the sensible conditions of space and time in reference to the
conception of right; and the theory of the possibility of such
abstraction from these conditions, without taking away the reality
of the possession, just constitutes the transcendental deduction of
the conception of acquisition by contract. It is quite akin to what
was presented under the last title, as the theory of acquisition by
occupation of the external object.
20. What is Acquired by Contract.
But what is that, designated as external, which I acquire by
contract? As it is only the causality of the active will of another,
in respect of the performance of something promised to me, I do not
immediately acquire thereby an external thing, but an act of the
will in question, whereby a thing is brought under my power so that
I make it mine. By the contract, therefore, I acquire the promise of
another, as distinguished from the thing promised; and yet something
is thereby added to my having and possession. I have become the richer
in possession (locupletior) by the acquisition of an active obligation
that I can bring to bear upon the freedom and capability of another.
This my right, however, is only a personal right, valid only to the
effect of acting upon a particular physical person and specially
upon the causality of his will, so that he shall perform something for
me. It is not a real right upon that moral person, which is identified
with the idea of the united will of all viewed a priori, and through
which alone I can acquire a right valid against every possessor of the
thing. For, it is in this that all right in a thing consists.
The transfer or transmission of what is mine to another by contract,
takes place according to the law of continuity (lex continui).
Possession of the object is not interrupted for a moment during this
act; for, otherwise, I would acquire an object in this state as a
thing that had no possessor, and it would thus be acquired originally,
which is contrary to the idea of a contract. This continuity, however,
implies that it is not the particular will of either the promiser or
the acceptor, but their united will in common, that transfers what
is mine to another. And hence it is not accomplished in such a
manner that the promiser first relinquishes (derelinquit) his
possession for the benefit of another, or renounces his right
(renunciat), and thereupon the other at the same time enters upon
it; or conversely. The transfer (translatio) is therefore an act in
which the object belongs for a moment at the same time to both, just
as in the parabolic path of a projectile the object on reaching its
highest point may be regarded for a moment as at the same time both
rising and falling, and as thus passing in fact from the ascending
to the falling motion.
21. Acceptance and Delivery.
A thing is not acquired in a case of contract by the acceptance
(acceptatio) of the promise, but only by the delivery (traditio) of
the object promised. For all promise is relative to performance; and
if what was promised is a thing, the performance cannot be executed
otherwise than by an act whereby the acceptor is put by the promiser
into possession of the thing; and this is delivery. Before the
delivery and the reception of the thing, the performance of the act
required has not yet taken place; the thing has not yet passed from
the one person to the other and, consequently, has not been acquired
by that other. Hence the right arising from a contract is only a
personal right; and it only becomes a real right by delivery.
A contract upon which delivery immediately follows (pactum re
initum) excludes any interval of time between its conclusion and its
execution; and as such it requires no further particular act in the
future by which one person may transfer to another what is his. But if
there is a time- definite or indefinite- agreed upon between them
for the delivery, the question then arises whether the thing has
already before that time become the acceptor's by the contract, so
that his right is a right in the thing; or whether a further special
contract regarding the delivery alone must be entered upon, so that
the right that is acquired by mere acceptance is only a personal
right, and thus it does not become a right in the thing until
delivery? That the relation must be determined according to the latter
alternative will be clear from what follows.
Suppose I conclude a contract about a thing that I wish to
acquire- such as a horse- and that I take it immediately into my
stable, or otherwise into my possession; then it is mine (vi pacti
re initi), and my right is a right in the thing. But if I leave it
in the hands of the seller without arranging with him specially in
whose physical possession or holding (detentio) this thing shall be
before my taking possession of it (apprehensio), and consequently,
before the actual change of possession, the horse is not yet mine; and
the right which I acquire is only a right against a particular person-
namely, the seller of the horse- to be put into possession of the
object (poscendi traditionem) as the subjective condition of any use
of it at my will. My right is thus only a personal right to demand
from the seller the performance of his promise (praestatio) to put
me into possession of the thing. Now, if the contract does not contain
the condition of delivery at the same time- as a pactum re initum- and
consequently an interval of time intervenes between the conclusion
of the contract and the taking possession of the object of
acquisition, I cannot obtain possession of it during this interval
otherwise than by exercising the particular juridical activity
called a possessory act (actum possessorium), which constitutes a
special contract. This act consists in my saying, "I will send to
fetch the horse," to which the seller has to agree. For it is not
self-evident or universally reasonable that any one will take a
thing destined for the use of another into his charge at his own risk.
On the contrary, a special contract is necessary for this arrangement,
according to which the alienator of a thing continues to be its
owner during a certain definite time, and must bear the risk of
whatever may happen to it; while the acquirer can only be regarded
by the seller as the owner when he has delayed to enter into
possession beyond the date at which he agreed to take delivery.
Prior to the possessory act, therefore, all that is acquired by the
contract is only a personal right; and the acceptor can acquire an
external thing only by delivery.
SECTION III. Principles of Personal Right that is Real
in Kind. (Jus Realiter Personale).
22. Nature of Personal Right of a Real Kind.
Personal right of a real kind is the right to the possession of an
external object as a thing, and to the use of it as a person. The mine
and thine embraced under this right relate specially to the family and
household; and the relations involved are those of free beings in
reciprocal real interaction with each other. Through their relations
and influence as persons upon one another, in accordance with the
principle of external freedom as the cause of it, they form a
society composed as a whole of members standing in community with each
other as persons; and this constitutes the household. The mode in
which this social status is acquired by individuals, and the functions
which prevail within it, proceed neither by arbitrary individual
action (facto), nor by mere contract (pacto), but by law (lege). And
this law as being not only a right, but also as constituting
possession in reference to a person, is a right rising above all
mere real and personal right. It must, in fact, form the right of
humanity in our own person; and, as such, it has as its consequence
a natural permissive law, by the favour of which such acquisition
becomes possible to us.
23. What is acquired in the household.
The acquisition that is founded upon this law is, as regards its
objects, threefold. The man acquires a wife; the husband and wife
acquire children, constituting a family; and the family acquire
domestics. All these objects, while acquirable, are inalienable; and
the right of possession in these objects is the most strictly personal
of all rights.
The Rights of the Family as a Domestic Society
Title I. Conjugal Right. (Husband and Wife)
24. The Natural Basis of Marriage.
The domestic relations are founded on marriage, and marriage is
founded upon the natural reciprocity or intercommunity (commercium) of
the sexes.* This natural union of the sexes proceeds according to
the mere animal nature (vaga libido, venus vulgivaga, fornicatio),
or according to the law. The latter is marriage (matrimonium), which
is the union of two persons of different sex for life-long
reciprocal possession of their sexual faculties. The end of
producing and educating children may be regarded as always the end
of nature in implanting mutual desire and inclination in the sexes;
but it is not necessary for the rightfulness of marriage that those
who marry should set this before themselves as the end of their union,
otherwise the marriage would be dissolved of itself when the
production of children ceased.
*Commercium sexuale est usus membrorum et facultatum sexualium
alterius. This "usus" is either natural, by which human beings may
reproduce their own kind, or unnatural, which, again, refers either to
a person of the same sex or to an animal of another species than
man. These transgressions of all law, as crimina carnis contra
naturam, are even "not to be named"; and, as wrongs against all
humanity in the person, they cannot be saved, by any limitation or
exception whatever, from entire reprobation.
And even assuming that enjoyment in the reciprocal use of the sexual
endowments is an end of marriage, yet the contract of marriage is
not on that account a matter of arbitrary will, but is a contract
necessary in its nature by the law of humanity. In other words, if a
man and a woman have the will to enter on reciprocal enjoyment in
accordance with their sexual nature, they must necessarily marry
each other; and this necessity is in accordance with the juridical
laws of pure reason.
25. The Rational Right of Marriage.
For, this natural commercium- as a usus membrorum sexualium
alterius- is an enjoyment for which the one person is given up to
the other. In this relation the human individual makes himself a
res, which is contrary to the right of humanity in his own person.
This, however, is only possible under the one condition, that as the
one person is acquired by the other as a res, that same person also
equally acquires the other reciprocally, and thus regains and
reestablishes the rational personality. The acquisition of a part of
the human organism being, on account of its unity, at the same time
the acquisition of the whole person, it follows that the surrender and
acceptation of, or by, one sex in relation to the other, is not only
permissible under the condition of marriage, but is further only
really possible under that condition. But the personal right thus
acquired is, at the same time, real in kind; and this characteristic
of it is established by the fact that if one of the married persons
run away or enter into the possession of another, the other is
entitled, at any time, and incontestably, to bring such a one back
to the former relation, as if that person were a thing.
26. Monogamy and Equality in Marriage.
For the same reasons, the relation of the married persons to each
other is a relation of equality as regards the mutual possession of
their persons, as well as of their goods. Consequently marriage is
only truly realized in monogamy; for in the relation of polygamy the
person who is given away on the one side, gains only a part of the one
to whom that person is given up, and therefore becomes a mere res. But
in respect of their goods, they have severally the right to renounce
the use of any part of them, although only by a special contract.
From the principle thus stated, it also follows that concubinage
is as little capable of being brought under a contract of right as the
hiring of a person on any one occasion, in the way of a pactum
fornicationis. For, as regards such a contract as this latter relation
would imply, it must be admitted by all that any one who might enter
into it could not be legally held to the fulfillment of their
promise if they wished to resile from it. And as regards the former, a
contract of concubinage would also fall as a pactum turpe; because
as a contract of the hire (locatio, conductio), of a part for the
use of another, on account of the inseparable unity of the members
of a person, any one entering into such a contract would be actually
surrendering as a res to the arbitrary will of another. Hence any
party may annul a contract like this if entered into with any other,
at any time and at pleasure; and that other would have no ground, in
the circumstances, to complain of a lesion of his right. The same
holds likewise of a morganatic or "left-hand" marriage, contracted
in order to turn the inequality in the social status of the two
parties to advantage in the way of establishing the social supremacy
of the one over the other; for, in fact, such a relation is not really
different from concubinage, according to the principles of natural
right, and therefore does not constitute a real marriage. Hence the
question may be raised as to whether it is not contrary to the
equality of married persons when the law says in any way of the
husband in relation to the wife, "he shall be thy master," so that
he is represented as the one who commands, and she is the one who
obeys. This, however, cannot be regarded as contrary to the natural
equality of a human pair, if such legal supremacy is based only upon
the natural superiority of the faculties of the husband compared
with the wife, in the effectuation of the common interest of the
household, and if the right to command is based merely upon this fact.
For this right may thus be deduced from the very duty of unity and
equality in relation to the end involved.
27. Fulfillment of the Contract of Marriage.
The contract of marriage is completed only by conjugal cohabitation.
A contract of two persons of different sex, with the secret
understanding either to abstain from conjugal cohabitation or with the
consciousness on either side of incapacity for it, is a simulated
contract; it does not constitute a marriage, and it may be dissolved
by either of the parties at will. But if the incapacity only arises
after marriage, the right of the contract is not annulled or
diminished by a contingency that cannot be legally blamed.
The acquisition of a spouse, either as a husband or as a wife, is
therefore not constituted facto- that is, by cohabitation- without a
preceding contract; nor even pacto- by a mere contract of marriage,
without subsequent cohabitation; but only lege, that is, as a
juridical consequence of the obligation that is formed by two
persons entering into a sexual union solely on the basis of a
reciprocal possession of each other, which possession at the same time
is only effected in reality by the reciprocal usus facultatum
sexualium alterius.
Title II. Parental Right. (Parent and Child).
28. The Relation of Parent and Child.
From the duty of man towards himself- that is, towards the
humanity in his own person there thus arises a personal right on the
part of the members of the opposite sexes, as persons, to acquire
one another really and reciprocally by marriage. In like manner,
from the fact of procreation in the union thus constituted, there
follows the duty of preserving and rearing children as the products of
this union. Accordingly, children, as persons, have, at the same time,
an original congenital right- distinguished from mere hereditary
right- to be reared by the care of their parents till they are capable
of maintaining themselves; and this provision becomes immediately
theirs by law, without any particular juridical act being required
to determine it.
For what is thus produced is a person, and it is impossible to think
of a being endowed with personal freedom as produced merely by a
physical process. And hence, in the practical relation, it is quite
a correct and even a necessary idea to regard the act of generation as
a process by which a person is brought without his consent into the
world and placed in it by the responsible free will of others. This
act, therefore, attaches an obligation to the parents to make their
children- as far as their power goes- contented with the condition
thus acquired. Hence parents cannot regard their child as, in a
manner, a thing of their own making; for a being endowed with
freedom cannot be so regarded. Nor, consequently, have they a right to
destroy it as if it were their own property, or even to leave it to
chance; because they have brought a being into the world who becomes
in fact a citizen of the world, and they have placed that being in a
state which they cannot be left to treat with indifference, even
according to the natural conceptions of right.
We cannot even conceive how it is possible that God can create
free beings; for it appears as if all their future actions, being
predetermined by that first act, would be contained in the chain of
natural necessity, and that, therefore, they could not be free. But as
men we are free in fact, as is proved by the categorical imperative in
the moral and practical relation as an authoritative decision of
reason; yet reason cannot make the possibility of such a relation of
cause to effect conceivable from the theoretical point of view,
because they are both suprasensible. All that can be demanded of
reason under these conditions would merely be to prove that there is
no contradiction involved in the conception of a creation of free
beings; and this may be done by showing that contradiction only arises
when, along with the category of causality, the condition of time is
transferred to the relation of suprasensible things. This condition,
as implying that the cause of an effect must precede the effect as its
reason, is inevitable in thinking the relation of objects of sense
to one another; and if this conception of causality were to have
objective reality given to it in the theoretical bearing, it would
also have to be referred to the suprasensible sphere. But the
contradiction vanishes when the pure category, apart from any sensible
conditions, is applied from the moral and practical point of view, and
consequently as in a non-sensible relation to the conception of
creation.
The philosophical jurist will not regard this investigation, when
thus carried back even to the ultimate principles of the
transcendental philosophy, as an unnecessary subtlety in a
metaphysic of morals, or as losing itself in aimless obscurity, when
he takes into consideration the difficulty of doing justice in this
inquiry to the ultimate relations of the principles of right.
29. The Rights of the Parent.
From the duty thus indicated, there further necessarily arises the
right of the parents to the management and training of the child, so
long as it is itself incapable of making proper use of its body as
an organism, and of its mind as an understanding. This involves its
nourishment and the care of its education. This includes, in
general, the function of forming and developing it practically, that
it may be able in the future to maintain and advance itself, and
also its moral culture and development, the guilt of neglecting it
falling upon the parents. All this training is to be continued till
the child reaches the period of emancipation (emancipatio), as the age
of practicable self-support. The parents then virtually renounce the
parental right to command, as well as all claim to repayment for their
previous care and trouble; for which care and trouble, after the
process of education is complete, they can only appeal to the
children, by way of any claim, on the ground of the obligation of
gratitude as a duty of virtue.
From the fact of personality in the children, it further follows
that they can never be regarded as the property of the parents, but
only as belonging to them by way of being in their possession, like
other things that are held apart from the possession of all others and
that can be brought back even against the will of the subjects.
Hence the right of the parents is not a purely real right, and it is
not alienable (jus personalissimum). But neither is it a merely
personal right; it is a personal right of a real kind, that is, a
personal right that is constituted and exercised after the manner of a
real right.
It is therefore evident that the title of a personal right of a real
kind must necessarily be added, in the science of right, to the titles
of real right and personal right, the division of rights into these
two being not complete. For, if the right of the parents to the
children were treated as if it were merely a real right to a part of
what belongs to their house, they could not found only upon the duty
of the children to return to them in claiming them when they run away,
but they would be then entitled to seize them and impound them like
things or runaway cattle.
TITLE III. Household Right. (Master and Servant)
30. Relation and Right of the Master of a Household.
The children of the house, who, along with the parents, constitute a
family, attain majority, and become masters of themselves (majorennes,
sui juris), even without a contract of release from their previous
state of dependence, by their actually attaining to the capability
of self-maintenance. This attainment arises, on the one hand, as a
state of natural majority, with the advance of years in the general
course of nature; and, on the other hand, it takes form, as a state in
accordance with their own natural condition. They thus acquire the
right of being their own masters, without the interposition of any
special juridical act, and therefore merely by law (lege); and they
owe their parents nothing by way of legal debt for their education,
just as the parents, on their side, are now released from their
obligations to the children in the same way. Parents and children thus
gain or regain their natural freedom; and the domestic society,
which was necessary according to the law of right, is thus naturally
dissolved.
Both parties, however, may resolve to continue the household, but
under another mode of obligation. It may assume the form of a relation
between the bead of the house, as its master, and the other members as
domestic servants, male or female; and the connection between them
in this new regulated domestic economy (societas herilis) may be
determined by contract. The master of the house, actually or
virtually, enters into contract with the children, now become major
and masters of themselves; or, if there be no children in the
family, with other free persons constituting the membership of the
household; and thus there is established domestic relationship not
founded on social equality, but such that one commands as master,
and another obeys as servant (imperantis et subjecti domestici).
The domestics or servants may then be regarded by the master of
the household as thus far his. As regards the form or mode of his
possession of them, they belong to him as if by a real right; for if
any of them run away, he is entitled to bring them again under his
power by a unilateral act of his will. But as regards the matter of
his right, or the use he is entitled to make of such persons as his
domestics, he is not entitled to conduct himself towards them as if he
was their proprietor or owner (dominus servi); because they are only
subjected to his power by contract, and by a contract under certain
definite restrictions. For a contract by which the one party renounced
his whole freedom for the advantage of the other, ceasing thereby to
be a person and consequently having no duty even to observe a
contract, is self contradictory, and is therefore of itself null and
void. The question as to the right of property in relation to one
who has lost his legal personality by a crime does not concern us
here.
This contract, then, of the master of a household with his
domestics, cannot be of such a nature that the use of them could
ever rightly become an abuse of them; and the judgement as to what
constitutes use or abuse in such circumstances the is not lef