THE PRINCIPLES OF THE EXTERNAL MINE AND THINE GENERALLY.
Of the Mode of having anything External as one’s own.
The meaning of ‘Mine’ in Right.
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).
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 that 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 potestatem 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 à 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 à priori to enlarge its range of activity in practice.
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.
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 (præstatio);
(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 non-physical 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.
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, any one interfering with this object would not, in doing so, affect me; nor, consequently, would he thereby do me any wrong. Hence, according to § 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.
Deduction of the conception of a purely juridical Possession of an External Object.
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 à priori?’
All Propositions of Right—as juridical propositions—are Propositions à priori, for they are practical Laws of Reason (Dictamina rationis). But the juridical Proposition à 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 à 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 à 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 à 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 à priori, an intuitional Perception à 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 non-empirical 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.
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 à 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 the 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 § 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 phænomenon), 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 à 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 à priori. The proof of this in the practical connection, as will be shown afterwards, can be adduced in an analytical manner.
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.
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 à 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 distinguised from its being specially assigned and determined to him.—All Guarantee, therefore, assumes that every one to whom a thing is secured, is already in possesion 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 every one 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 he 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 every one 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 any one 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.
The Mode of acquiring anything External.
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 (Communioprimæva) 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 free-will 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 Will.
Division of the Subject of the Acquisition of the external Mine and Thine.
I. In respect of the Matter or 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—any thing 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).
Principles of Real Right.
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 other 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 had 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.
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 acceptation, 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.
Every part of the Soil may be originarily 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 (§ 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 primæval 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.
The juridical Act of this original Acquisition is Occupancy.
The Act of taking possession (apprehensio), as being at its beginning the physical appropriation of a corporeal thing in space (possessionis physicæ), 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 à 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.
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 recognised 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 meræ 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 civilised 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.
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 à priori—which does not presuppose any juridical act as requisite for this union. This Law can only take form in the Civil State (lex justitiæ distributivæ); 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.
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 à 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 meæ. 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.
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 other 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.
Principles of Personal Right.
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.
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 à 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.
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 à 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.
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 (præstatio) 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.
Principles of Personal Right that is Real in Kind.
(Jus realiter personale.)
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.
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.