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).
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.
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.
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.
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.
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.
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.
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.
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 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 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.
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:
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);
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;
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.
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).
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.
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).
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.
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.
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.
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 willcannot 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.
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.
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 prioriwhich 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.
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.
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.
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.
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 contractsuch 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.
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.
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 personnamely, 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.
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.
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 domestic relations are founded on marriage, and marriage is founded upon the natural reciprocity or intercommunity (commercium) of the sexes.2 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.
2Commercium 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.
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.
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.
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.
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.
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.
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 left merely to the master, but is also competent to the servants, who ought never to be held in bondage or bodily servitude as slaves or serfs. Such a contract cannot, therefore, be concluded for life, but in all cases only for a definite period, within which one party may intimate to the other a termination of their connection. Children, however, including even the children of one who has become enslaved owing to a crime, are always free. For every man is born free, because he has at birth as yet broken no law; and even the cost of his education till his maturity cannot be reckoned as a debt which he is bound to pay. Even a slave, if it were in his power, would be bound to educate his children without being entitled to count and reckon with them for the cost; and in view of his own incapacity for discharging this function, the possessor of a slave, therefore, enters upon the obligation which he has rendered the slave himself unable to fulfil.
Here, again, as under the first two titles, it is clear that there is a personal right of a real kind, in the relation of the master of a house to his domestics. For he can legally demand them as belonging to what is externally his, from any other possessor of them; and he is entitled to fetch them back to his house, even before the reasons that may have led them to run away, and their particular right in the circumstances, have been juridically investigated.
It is reasonable to demand that a metaphysical science of right shall completely and definitely determine the members of a logical division of its conceptions a priori, and thus establish them in a genuine system. All empirical division, on the other hand, is merely fragmentary partition, and it leaves us in uncertainty as to whether there may not be more members still required to complete the whole sphere of the divided conception. A division that is made according to a principle a priori may be called, in contrast to all empirical partitions, a dogmatic division.
Every contract, regarded in itself objectively, consists of two juridical acts: the promise and its acceptance. Acquisition by the latter, unless it be a pactum re initum which requires delivery, is not a part, but the juridically necessary consequence of the contract. Considered again subjectively, or as to whether the acquisition, which ought to happen as a necessary consequence according to reason, will also follow, in fact, as a physical consequence, it is evident that I have no security or guarantee that this will happen by the mere acceptance of a promise. There is, therefore, something externally required connected with the mode of the contract, in reference to the certainty of acquisition by it; and this can only be some element completing and determining the means necessary to the attainment of acquisition as realizing the purpose of the contract. And in his connection and behoof, three persons are required to intervene — the promiser, the acceptor, and the cautioner or surety. The importance of the cautioner is evident; but by his intervention and his special contract with the promiser, the acceptor gains nothing in respect of the object but the means of compulsion that enable him to obtain what is his own.
According to these rational principles of logical division, there are properly only three pure and simple modes of contract. There are, however, innumerable mixed and empirical modes, adding statutory and conventional forms to the principles of mine and thine that are in accordance with rational laws. But they lie outside of the circle of the metaphysical science of right, whose rational modes of contract can alone be indicated here.
All contracts are founded upon a purpose of acquisition, and are either:
Gratuitous contracts, with unilateral acquisition; or
Onerous contracts, with reciprocal acquisition; or
Cautionary contracts, with no acquisition, but only guarantee of what has been already acquired. These contracts may be gratuitous on the one side, and yet, at the same time, onerous on the other.
The gratuitous contracts (pacta gratuita) are:
The onerous contracts are contracts either of permutation or of hiring.
Contracts of permutation or reciprocal exchange (permutatio late sic dicta):
Contracts of letting and hiring (locatio conductio):
The cautionary contracts (cautiones) are:
This list of all modes in which the property of one person may be transferred or conveyed to another includes conceptions of certain objects or instruments required for such transference (translatio). These appear to be entirely empirical, and it may therefore seem questionable whether they are entitled to a place in a metaphysical science of right. For, in such a science, the divisions must be made according to principles a priori; and hence the matter of the juridical relation, which may be conventional, ought to be left out of account, and only its form should be taken into consideration.
Such conceptions may be illustrated by taking the instance of money, in contradistinction from all other exchangeable things as wares and merchandise; or by the case of a book. And considering these as illustrative examples in this connection, it will be shown that the conception of money as the greatest and most useable of all the means of human intercommunication through things, in the way of purchase and sale in commerce, as well as that of books as the greatest means of carrying on the interchange of thought, resolve themselves into relations that are purely intellectual and rational. And hence it will be made evident that such conceptions do not really detract from the purity of the given scheme of pure rational contracts, by empirical admixture.
Money is a thing which can only be made use of, by being alienated or exchanged. This is a good nominal definition, as given by Achenwall; and it is sufficient to distinguish objects of the will of this kind from all other objects. But it gives us no information regarding the rational possibility of such a thing as money is. Yet we see thus much by the definition: (1) that the alienation in this mode of human intercommunication and exchange is not viewed as a gift, but is intended as a mode of reciprocal acquisition by an onerous contract; and (2) that it is regarded as a mere means of carrying on commerce, universally adopted by the people, but having no value as such of itself, in contrast to other things as mercantile goods or wares which have a particular value in relation to special wants existing among the people. It therefore represents all exchangeable things.
A bushel of corn has the greatest direct value as a means of satisfying human wants. Cattle may be fed by it; and these again are subservient to our nourishment and locomotion, and they even labour in our stead. Thus, by means of corn, men are multiplied and supported, who not only act again in reproducing such natural products, but also by other artificial products they can come to the relief of all our proper wants. Thus are men enabled to build dwellings, to prepare clothing, and to supply all the ingenious comforts and enjoyments which make up the products of industry. On the other hand, the value of money is only indirect. It cannot be itself enjoyed, nor be used directly for enjoyment; it is, however, a means towards this, and of all outward things it is of the highest utility.
We may found a real definition of money provisionally upon these considerations. It may thus be defined as the universal means of carrying on the industry of men in exchanging intercommunications with each other. Hence national wealth, in so far as it can be acquired by means of money, is properly only the sum of the industry or applied labour with which men pay each other, and which is represented by the money in circulation among the people.
The thing which is to be called money must, therefore, have cost as much industry to produce it, or even to put it into the hands of others, as may be equivalent to the industry or labour required for the acquisition of the goods or wares or merchandise, as natural or artificial products, for which it is exchanged. For if it were easier to procure the material which is called money than the goods that are required, there would be more money in the market than goods to be sold; and because the seller would then have to expend more labour upon his goods than the buyer on the equivalent, the money coming in to him more rapidly, the labour applied to the preparation of goods and industry generally, with the industrial productivity which is the source of the public wealth, would at the same time dwindle and be cut down. Hence bank notes and assignations are not to be regarded as money, although they may take its place by way of representing it for a time; because it costs almost no labour to prepare them, and their value is based merely upon the opinion prevailing as to the further continuance of the previous possibility of changing them into ready money. But on its being in any way found out that there is not ready money in sufficient quantity for easy and safe conversion of such notes or assignations, the opinion gives way, and a fall in their value becomes inevitable. Thus the industrial labour of those who work the gold and silver mines in Peru and Mexicoespecially on account of the frequent failures in the application of fruitless efforts to discover new veins of these precious metals — is probably even greater than what is expended in the manufacture of goods in Europe. Hence such mining labour, as unrewarded in the circumstances, would be abandoned of itself, and the countries mentioned would in consequence soon sink into poverty, did not the industry of Europe, stimulated in turn by these very metals, proportionally expand at the same time so as constantly to keep up the zeal of the miners in their work by the articles of luxury thereby offered to them. It is thus that the concurrence of industry with industry, and of labour with labour, is always maintained.
But how is it possible that what at the beginning constituted only goods or wares, at length became money? This has happened wherever a sovereign as great and powerful consumer of a particular substance, which he at first used merely for the adornment and decoration of his servants and court, has enforced the tribute of his subjects in this kind of material. Thus it may have been gold, or silver, or copper, or a species of beautiful shells called cowries, or even a sort of mat called makutes, as in Congo; or ingots of iron, as in Senegal; or Negro slaves, as on the Guinea Coast. When the ruler of the country demanded such things as imposts, those whose labour had to be put in motion to procure them were also paid by means of them, according to certain regulations of commerce then established, as in a market or exchange. As it appears to me, it is only thus that a particular species of goods came to be made a legal means of carrying on the industrial labour of the subjects in their commerce with each other, and thereby forming the medium of the national wealth. And thus it practically became money.
The rational conception of money, under which the empirical conception is embraced, is therefore that of a thing which, in the course of the public permutation or exchange of possessions (permutatio publica), determines the price of all the other things that form products or goods — under which term even the sciences are included, in so far as they are not taught gratis to others. The quantity of it among a people constitutes their wealth (opulentia). For price (pretium) is the public judgement about the value of a thing, in relation to the proportionate abundance of what forms the universal representative means in circulation for carrying on the reciprocal interchange of the products of industry or labour.3 The precious metals, when they are not merely weighed but also stamped or provided with a sign indicating how much they are worth, form legal money, and are called coin.
3Hence where commerce is extensive neither gold nor copper is specially used as money, but only as constituting wares; because there is too little of the first and too much of the second for them to be easily brought into circulation, so as at once to have the former in such small pieces as are necessary in payment for particular goods and not to have the latter in great quantity in case of the smallest acquisitions. Hence silver — more or less alloyed with copper — is taken as the proper material of money and the measure of the calculation of all prices in the great commercial intercommunications of the world; and the other metals — and still more non-metalic substancescan only take its place in the case of a people of limited commerce.
According to Adam Smith: “Money has become, in all civilized nations, the universal instrument of commerce, by the intervention of which goods of all kinds are bought and sold or exchanged for one another.” This definition expands the empirical conception of money to the rational idea of it, by taking regard only to the implied form of the reciprocal performances in the onerous contracts, and thus abstracting from their matter. It is thus conformable to the conception of right in the permutation and exchange of the mine and thine generally (commutatio late sic dicta). The definition, therefore, accords with the representation in the above synopsis of a dogmatic division of contracts a priori, and consequently with the metaphysical principle of right in general.
A book is a writing which contains a discourse addressed by some one to the public, through visible signs of speech. It is a matter of indifference to the present considerations whether it is written by a pen or imprinted by types, and on few or many pages. He who speaks to the public in his own name is the author. He who addresses the writing to the public in the name of the author is the publisher. When a publisher does this with the permission or authority of the author, the act is in accordance with right, and he is the rightful publisher; but if this is done without such permission or authority, the act is contrary to right, and the publisher is a counterfeiter or unlawful publisher. The whole of a set of copies of the original document is called an edition.
A writing is not an immediate direct presentation of a conception, as is the case, for instance, with an engraving that exhibits a portrait, or a bust or cast by a sculptor. It is a discourse addressed in a particular form to the public; and the author may be said to speak publicly by means of his publisher. The publisher, again, speaks by the aid of the printer as his workman (operarius), yet not in his own name, for otherwise he would be the author, but in the name of the author; and he is only entitled to do so in virtue of a mandate given him to that effect by the author. Now the unauthorized printer and publisher speaks by an assumed authority in his publication; in the name indeed of the author, but without a mandate to that effect (gerit se mandatarium absque mandato). Consequently such an unauthorized publication is a wrong committed upon the authorized and only lawful publisher, as it amounts to a pilfering of the profits which the latter was entitled and able to draw from the use of his proper right (furtum usus). Unauthorized printing and publication of books is, therefore, forbidden — as an act of counterfeit and piracyon the ground of right.
There seems, however, to be an impression that there is a sort of common right to print and publish books; but the slightest reflection must convince any one that this would be a great injustice. The reason of it is found simply in the fact that a book, regarded from one point of view, is an external product of mechanical art (opus mechanicum), that can be imitated by any one who may be in rightful possession of a copy; and it is therefore his by a real right.
But, from another point of view, a book is not merely an external thing, but is a discourse of the publisher to the public, and he is only entitled to do this publicly under the mandate of the author (praestatio operae); and this constitutes a personal right. The error underlying the impression referred to, therefore, arises from an interchange and confusion of these two kinds of right in relation to books.
The confusion of personal right with real right may be likewise shown by reference to a difference of view in connection with another contract, falling under the head of contracts of hiring (B II. I), namely, the contract of lease (jus incolatus). The question is raised as to whether a proprietor when he has sold a house or a piece of ground held on lease, before the expiry of the period of lease, was bound to add the condition of the continuance of the lease to the contract of purchase; or whether it should be held that “purchase breaks hire,” of course under reservation of a period of warning determined by the nature of the subject in use. In the former view, a house or farm would be regarded as having a burden lying upon it, constituting a real right acquired in it by the lessee; and this might well enough be carried out by a clause merely indorsing or ingrossing the contract of lease in the deed of sale. But as it would no longer then be a simple lease; another contract would properly be required to be conjoined, a matter which few lessors would be disposed to grant. The proposition, then, that “Purchase breaks hire” holds in principle; for the full right in a thing as a property overbears all personal right, which is inconsistent with it. But there remains a right of action to the lessee, on the ground of a personal right for indemnification on account of any loss arising from breaking of the contract.
I call that mode of acquisition ideal which involves no causality in time, and which is founded upon a mere idea of pure reason. It is nevertheless actual, and not merely imaginary acquisition: and it is not called real only because the act of acquisition is not empirical. This character of the act arises from the peculiarity that the person acquiring acquires from another who either is not yet, and who can only be regarded as a possible being, or who is just ceasing to be, or who no longer is. Hence such a mode of attaining to possession is to be regarded as a mere practical idea of reason.
There are three modes of ideal acquisition:
I. Acquisition by usucapion;
II. Acquisition by inheritance or succession;
III. Acquisition by undying merit (meritum immortale), or the claim by right to a good name at death.
These three modes of acquisition can, as a matter of fact, only have effect in a public juridical state of existence, but they are not founded merely upon the civil constitution or upon arbitrary statutes; they are already contained a priori in the conception of the state of nature, and are thus necessarily conceivable prior to their empirical manifestation. The laws regarding them in the civil constitution ought to be regulated by that rational conception.
I may acquire the property of another merely by long possession and use of it (usucapio). Such property is not acquired, because I may legitimately presume that his consent is given to this effect (per consensum praesumptum); nor because I can assume that, as he does not oppose my acquisition of it, he has relinquished or abandoned it as his (rem derelictam). But I acquire it thus because, even if there were any one actually raising a claim to this property as its true owner, I may exclude him on the ground of my long possession of it, ignore his previous existence, and proceed as if he existed during the time of my possession as a mere abstraction, although I may have been subsequently apprized of his reality as well as of his claim. This mode of acquisition is not quite correctly designated acquisition by prescription (per praescriptionem); for the exclusion of all other claimants is to be regarded as only the consequence of the usucapion; and the process of acquisition must have gone before the right of exclusion. The rational possibility of such a mode of acquisition has now to be proved.
Any one who does not exercise a continuous possessory activity (actus possessorius) in relation to a thing as his is regarded with good right as one who does not at all exist as its possessor. For he cannot complain of lesion so long as he does not qualify himself with a title as its possessor. And even if he should afterwards lay claim to the thing when another has already taken possession of it, he only says he was once on a time owner of it, but not that he is so still, or that his possession has continued without interruption as a juridical fact. It can, therefore, only be a juridical process of possession, that has been maintained without interruption and is proveable by documentary fact, that any one can secure for himself what is his own after ceasing for a long time to make use of it.
For, suppose that the neglect to exercise this possessory activity had not the effect of enabling another to found upon his hitherto lawful, undisputed and bona fide possession, and irrefragable right to continue in its possession so that he may regard the thing that is thus in his possession as acquired by him. Then no acquisition would ever become peremptory and secured, but all acquisition would only be provisory and temporary. This is evident on the ground that there are no historical records available to carry the investigation of a title back to the first possessor and his act of acquisition. The presumption upon which acquisition by usucapion is founded is, therefore, not merely its conformity to right as allowed and just, but also the presumption of its being right (praesumtio juris et de jure), and its being assumed to be in accordance with compulsory laws (suppositio legalis). Anyone who has neglected to embody his possessory act in a documentary title has lost his claim to the right of being possessor for the time; and the length of the period of his neglecting to do so — which need not necessarily be particularly defined — can be referred to only as establishing the certainty of this neglect. And it would contradict the postulate of the juridically practical reason to maintain that one hitherto unknown as a possessor, and whose possessory activity has at least been interrupted, whether by or without fault of his own, could always at any time re-acquire a property; for this would be to make all ownership uncertain (dominia rerum incerta facere).
But if he is a member of the commonwealth or civil union, the state may maintain his possession for him vicariously, although it may be interrupted as private possession; and in that case the actual possessor will not be able to prove a title of acquisition even from a first occupation, nor to found upon a title of usucapion. But, in the state of nature, usucapion is universally a rightful ground of holding, not properly as a juridical mode of requiring a thing, but as a ground for maintaining oneself in possession of it where there are no juridical acts. A release from juridical claims is commonly also called acquisition. The prescriptive title of the older possessor, therefore, belongs to the sphere of natural right (est juris naturae).
Inheritance is constituted by the transfer (translatio) of the property or goods of one who is dying to a survivor, through the consent of the will of both. The acquisition of the heir who takes the estate (haeredis instituti) and the relinquishment of the testator who leaves it, being the acts that constitute the exchange of the mine and thine, take place in the same moment of time — in articulo mortisand just when the testator ceases to be. There is therefore no special act of transfer (translatio) in the empirical sense; for that would involve two successive acts, by which the one would first divest himself of his possession, and the other would thereupon enter into it. Inheritance as constituted by a simultaneous double act is, therefore, an ideal mode of acquisition. Inheritance is inconceivable in the state of nature without a testamentary disposition (dispositio ultimae voluntatis); and the question arises as to whether this mode of acquisition is to be regarded as a contract of succession, or a unilateral act instituting an heir by a will (testamentum). The determination of this question depends on the further question, whether and how, in the very same moment in which one individual ceases to be, there can be a transition of his property to another person. Hence the problem, as to how a mode of acquisition by inheritance is possible, must be investigated independently of the various possible forms in which it is practically carried out, and which can have place only in a commonwealth.
“It is possible to acquire by being instituted or appointed heir in a testamentary disposition.” For the testator Caius promises and declares in his last will to Titius, who knows nothing of this promise, to transfer to him his estate in case of death, but thus continuing as long as he lives sole owner of it. Now by a mere unilateral act of will, nothing can in fact be transmitted to another person, as in addition to the promise of the one party there is required acceptance (acceptatio) on the part of the other, and a simultaneous bilateral act of will (voluntas simultanea) which, however, is here awanting. So long as Caius lives, Titius cannot expressly accept in order to enter on acquisition, because Caius has only promised in case of death; otherwise the property would be for a moment at least in common possession, which is not the will of the testator. However, Titius acquires tacitly a special right to the inheritance as a real right. This is constituted by the sole and exclusive right to accept the estate (jus in re jacente), which is therefore called at that point of time a haereditas jacens. Now as every man — because he must always gain and never lose by itnecessarily, although tacitly, accepts such a right, and as Titius after the death of Caius is in this position, he may acquire the succession as heir by acceptance of the promise. And the estate is not in the meantime entirely without an owner (res nullius), but is only in abeyance or vacant (vacua); because he has exclusively the right of choice as to whether he will actually make the estate bequeathed to him his own or not.
Hence testaments are valid according to mere natural right (sunt juris naturae). This assertion however, is to be understood in the sense that they are capable and worthy of being introduced and sanctioned in the civil state, whenever it is instituted. For it is only the common will in the civil state that maintains the possession of the inheritance or succession, while it hangs between acceptance or rejection and specially belongs to no particular individual.
It would be absurd to think that a dead person could possess anything after his death, when he no longer exists in the eye of the law, if the matter in question were a mere thing. But a good name is a congenital and external, although merely ideal, possession, which attaches inseparably to the individual as a person. Now we can and must abstract here from all consideration as to whether the persons cease to be after death or still continue as such to exist; because, in considering their juridical relation to others, we regard persons merely according to their humanity and as rational beings (homo noumenon). Hence any attempt to bring the reputation or good name of a person into evil and false repute after death, is always questionable, even although a well-founded charge may be allowed — for to that extent the brocard “De mortuis nil nisi bene”4 is wrong. Yet to spread charges against one who is absent and cannot defend himself, shows at least a want of magnanimity.
4[Let nothing be said of the dead but what is favourable.]
By a blameless life and a death that worthily ends it, nothing ends it, it is admitted that a man may acquire a (negatively) good reputation constituting something that is his own, even when he no longer exists in the world of sense as a visible person (homo phaenomenon). It is further held that his survivors and successorswhether relatives or strangers — are entitled to defend his good name as a matter of right, on the ground that unproved accusations subject them all to the danger of similar treatment after death. Now that a man when dead can yet acquire such a right is a peculiar and, nevertheless, an undeniable manifestation in fact, of the a priori law-giving reason thus extending its law of command or prohibition beyond the limits of the present life. If some one then spreads a charge regarding a dead person that would have dishonoured him when living, or even made him despicable, any one who can adduce a proof that this accusation is intentionally false and untrue may publicly declare him who thus brings the dead person into ill repute to be a calumniator, and affix dishonour to him in turn. This would not be allowable unless it were legitimate to assume that the dead person was injured by the accusation, although he is dead, and that a certain just satisfaction was done to him by an apology, although he no longer sensibly exists. A title to act the part the vindicator of the dead person does not require to be established; for every one necessarily claims this of himself, not merely as a duty of virtue regarded ethically, but as a right belonging to him in virtue of his humanity. Nor does the vindicator require to show any special personal damage, accruing to him as a friend or relative, from a stain on the character of the deceased, to justify him in proceeding to censure it. That such a form of ideal acquisition, and even a right in an individual after death against survivors, is thus actually founded, cannot, therefore, be disputed, although the possibility of such a right is not capable of logical deduction.
There is no ground for drawing visionary inferences from what has just been stated, to the presentiment of a future life and invisible relations to departed souls. For the considerations connected with this right turn on nothing more than the purely moral and juridical relation which subsists among men, even in the present life, as rational beings. Abstraction is, however, made from all that belongs physically to their existence in space and time; that is, men are considered logically apart from these physical concomitants of their nature, not as to their state when actually deprived of them, but only in so far as being spirits they are in a condition that might realize the injury done them by calumniators. Any one who may falsely say something against me a hundred years hence injures me even now. For in the pure juridical relation, which is entirely rational and surprasensible, abstraction is made from the physical conditions of time, and the calumniator is as culpable as if he had committed the offence in my lifetime; only this will not be tried by a criminal process, but he will only be punished with that loss of honour he would have caused to another, and this is inflicted upon him by public opinion according to the lex talionis. Even a plagiarism from a dead author, although it does not tarnish the honour of the deceased, but only deprives him of a part of his property, is yet properly regarded as a lesion of his human right.
Natural right, understood simply as that right which is not statutory, and which is knowable purely a priori, by every man’s reason, will include distributive justice as well as commutative justice. It is manifest that the latter, as constituting the justice that is valid between persons in their reciprocal relations of intercourse with one another, must belong to natural right. But this holds also of distributive justice, in so far as it can be known a priori; and decisions or sentences regarding it must be regulated by the law of natural right.
The moral person who presides in the sphere of justice and administers it is called the Court of justice, and, as engaged in the process of official duty, the judicatory; the sentence delivered in a case, is the judgement (judicium). All this is to be here viewed a priori, according to the rational conditions of right, without taking into consideration how such a constitution is to be actually established or organized, for which particular statutes, and consequently empirical principles, are requisite.
The question, then, in this connection, is not merely “What is right in itself?” in the sense in which every man must determine it by the judgement of reason; but “What is right as applied to this case?” that is, “What is right and just as viewed by a court?” The rational and the judicial points of view are therefore to be distinguished; and there are four cases in which the two forms of judgement have a different and opposite issue. And yet they may co-exist with each other, because they are delivered from two different, yet respectively true, points of view: the one from regard to private right, the other from the idea of public right. They are: I. The contract of donation (pactum donationis); II. The contract of loan (commodatum); III. The action of real revindication (vindicatio); and IV. Guarantee by oath (juramentum).
It is a common error on the part of the jurist to fall here into the fallacy of begging the question by a tacit assumption (vitium subreptionis). This is done by assuming as objective and absolute the juridical principle which a public court of justice is entitled and even bound to adopt in its own behoof, and only from the subjective purpose of qualifying itself to decide and judge upon all the rights pertaining to individuals. It is therefore of no small importance to make this specific difference intelligible, and to draw attention to it.
The contract of donation signifies the gratuitous alienation (gratis) of a thing or right that is mine. It involves a relation between me as the donor (donans), and another person as the donatory (donatarius), in accordance with the principle of private right, by which what is mine is transferred to the latter, on his acceptance of it, as a gift (donum). However, it is not to be presumed that I have voluntarily bound myself thereby so as to be compelled to keep my promise, and that I have thus given away my freedom gratuitously, and, as it were, to that extent thrown myself away. Nemo suum jactare praesumitur. But this is what would happen, under such circumstances, according to the principle of right in the civil state; for in this sphere the donatory can compel me, under certain conditions, to perform my promise. If, then, the case comes before a court, according to the conditions of public right, it must either be presumed that the donor has consented to such compulsion, or the court would give no regard, in the sentence, to the consideration as to whether he intended to reserve the right to resile from his promise or not; but would only refer to what is certain, namely, the condition of the promise and the acceptance of the donatory. Although the promiser, therefore, thought — as may easily be supposed — that he could not be bound by his promise in any case, if he “rued” it before it was actually carried out, yet the court assumes that he ought expressly to have reserved this condition if such was his mind; and if he did not make such an express reservation, it will be held that he can be compelled to implement his promise. And this principle is assumed by the court, because the administration of justice would otherwise be endlessly impeded, or even made entirely impossible.
In the contract of commodate-loan (commodatum) I give some one the gratuitous use of something that is mine. If it is a thing that is given on loan, the contracting parties agree that the borrower will restore the very same thing to the power of the lender, But the receiver of the loan (commodatarius) cannot, at the same time, assume that the owner of the thing lent (commodans) will take upon himself all risk (casus) of any possible loss of it, or of its useful quality, that may arise from having given it into the possession of the receiver. For it is not to be understood of itself that the owner, besides the use of the thing, which he has granted to the receiver, and the detriment that is inseparable from such use, also gives a guarantee or warrandice against all damage that may arise from such use. On the contrary, a special accessory contract would have to be entered into for this purpose. The only question, then, that can be raised is this: “Is it incumbent on the lender or the borrower to add expressly the condition of undertaking the risk that may accrue to the thing lent; or, if this is not done, which of the parties is to be presumed to have consented and agreed to guarantee the property of the lender, up to restoration of the very same thing or its equivalent?” Certainly not the lender; because it cannot be presumed that he has gratuitously agreed to give more than the mere use of the thing, so that he cannot be supposed to have also undertaken the risk of loss of his property. But this may be assumed on the side of the borrower; because he thereby undertakes and performs nothing more than what is implied in the contract.
For example, I enter a house, when overtaken by a shower of rain, and ask the loan of a cloak. But through accidental contact with colouring matter, it becomes entirely spoiled while in my possession; or on entering another house, I lay it aside and it is stolen. Under such circumstances, everybody would think it absurd for me to assert that I had no further concern with the cloak but to return it as it was, or, in the latter case, only to mention the fact of the theft; and that, in any case, anything more required would be but an act of courtesy in expressing sympathy with the owner on account of his loss, seeing he can claim nothing on the ground of right. It would be otherwise, however, if, on asking the use of an article, I discharged myself beforehand from all responsibility, in case of its coming to grief while in my hands, on the ground of my being poor and unable to compensate any incidental loss. No one could find such a condition superfluous or ludicrous, unless the borrower were, in fact, known to be a well-to-do and well-disposed man; because in such a case it would almost be an insult not to act on the presumption of generous compensation for any loss sustained.
Now by the very nature of this contract, the possible damage (casus) which the thing lent may undergo cannot be exactly determined in any agreement. Commodate is therefore an uncertain contract (pactum incertum), because the consent can only be so far presumed. The judgement, in any case, deciding upon whom the incidence of any loss must fall, cannot therefore be determined from the conditions of the contract in itself, but only by the principle of the court before which it comes, and which can only consider what is certain in the contract; and the only thing certain is always the fact as to the possession of the thing as property. Hence the judgement passed in the state of nature will be different from that given by a court of justice in the civil state. The judgement from the standpoint of natural right will be determined by regard to the inner rational quality of the thing, and will run thus: “Loss arising from damage accruing to a thing lent falls upon the borrower” (casum sentit commodatarius); whereas the sentence of a court of justice in the civil state will run thus: “The loss falls upon the lender” (casum sentit dominus). The latter judgement turns out differently from the former as the sentence of the mere sound reason, because a public judge cannot found upon presumptions as to what either party may have thought; and thus the one who has not obtained release from all loss in the thing, by a special accessory contract, must bear the loss. Hence the difference between the judgement as the court must deliver it and the form in which each individual is entitled to hold it for himself, by his private reason, is a matter of importance, and is not to be overlooked in the consideration of juridical judgements.
It is clear from what has been already said that a thing of mine which continues to exist remains mine, although I may not be in continuous occupation of it; and that it does not cease to be mine without a juridical act of dereliction or alienation. Further, it is evident that a right in this thing (jus reale) belongs in consequence to me (jus personale), against every holder of it, and not merely against some particular person. But the question now arises as to whether this right must be regarded by every other person as a continuous right of property per se, if I have not in any way renounced it, although the thing is in the possession of another.
A thing may be lost (res amissa) and thus come into other hands in an honourable bona fide way as a supposed “find”; or it may come to me by formal transfer on the part of one who is in possession of it, and who professes to be its owner, although he is not so. Taking the latter case, the question arises whether, since I cannot acquire a thing from one who is not its owner (a non domino), I am excluded by the fact from all right in the thing itself, and have merely a personal right against a wrongful possessor? This is manifestly so, if the acquisition is judged purely according to its inner justifying grounds and viewed according to the state of nature, and not according to the convenience of a court of justice.
For everything alienable must be capable of being acquired by anyone. The rightfulness of acquisition, however, rests entirely upon the form in accordance with which what is in possession of another, is transferred to me and accepted by me. In other words, rightful acquisition depends upon the formality of the juridical act of commutation or interchange between the possessor of the thing and the acquirer of it, without its being required to ask how the former came by it; because this would itself be an injury, on the ground that: Quilibet praesumitur bonus. Now suppose it turned out that the said possessor was not the real owner, I cannot admit that the real owner is entitled to hold me directly responsible, or so entitled with regard to any one who might be holding the thing. For I have myself taken nothing away from him, when, for example, I bought his horse according to the law (titulo empti venditi) when it was offered for sale in the public market. The title of acquisition is therefore unimpeachable on my side; and as buyer I am not bound, nor even have I the right, to investigate the title of the seller; for this process of investigation would have to go on in an ascending series ad infinitum. Hence on such grounds I ought to be regarded, in virtue of a regular and formal purchase, as not merely the putative, but the real owner of the horse.
But against this position, there immediately start up the following juridical principles. Any acquisition derived from one who is not the owner of the thing in question is null and void. I cannot derive from another anything more than what he himself rightfully has; and although as regards the form of the acquisition the modus acquirendi — I may proceed in accordance with all the conditions of right when I deal in a stolen horse exposed for sale in the market, yet a real title warranting the acquisition was awanting; for the horse was not really the property of the seller in question. However I may be a bona fide possessor of a thing under such conditions, I am still only a putative owner, and the real owner has the right of vindication against me (rem suam vindicandi).
Now, it may be again asked, what is right and just in itself regarding the acquisition of external things among men in their intercourse with one another — viewed in the state of nature according to the principles of commutative justice? And it must be admitted in this connection that whoever has a purpose of acquiring anything must regard it as absolutely necessary to investigate whether the thing which he wishes to acquire does not already belong to another person. For although he may carefully observe the formal conditions required for appropriating what may belong to the property of another, as in buying a horse according to the usual terms in a market, yet he can, at the most, acquire only a personal right in relation to a thing (jus ad rem) so long as it is still unknown to him whether another than the seller may not be the real owner. Hence, if some other person were to come forward and prove by documentary evidence a prior right of property in the thing, nothing would remain for the putative new owner but the advantage which he has drawn as a bona fide possessor of it up to that moment. Now it is frequently impossible to discover the absolutely first original owner of a thing in the series of putative owners, who derive their right from one another. Hence no mere exchange of external things, however well it may agree with the formal conditions of commutative justice, can ever guarantee an absolutely certain acquisition.
Here, however, the juridically law-giving reason comes in again with the principle of distributive justice; and it adopts as a criterion of the rightfulness of possession, not what is in itself in reference to the private will of each individual in the state of nature, but only the consideration of how it would be adjudged by a court of justice in a civil state, constituted by the united will of all. In this connection, fulfillment of the formal conditions of acquisition, that in themselves only establish a personal right, is postulated as sufficient; and they stand as an equivalent for the material conditions which properly establish the derivation of property from a prior putative owner, to the extent of making what is in itself only a personal right, valid before a court, as a real right. Thus the horse which I bought when exposed for sale in the public market, under conditions regulated by the municipal law, becomes my property if all the conditions of purchase and sale have been exactly observed in the transaction; but always under the reservation that the real owner continues to have the right of a claim against the seller, on the ground of his prior unalienated possession. My otherwise personal right is thus transmuted into a real right, according to which I may take and vindicate the object as mine wherever I may find it, without being responsible for the way in which the Seller had come into possession of it.
It is therefore only in behoof of the requirements of juridical decision in a court (in favorem justitae distributivae) that the right in respect of a thing is regarded, not as personal, which it is in itself, but as real, because it can thus be most easily and certainly adjudged; and it is thus accepted and dealt with according to a pure principle a priori. Upon this principle, various statutory laws come to be founded which specially aim at laying down the conditions under which alone a mode of acquisition shall be legitimate, so that the judge may be able to assign every one his own as easily and certainly as possible. Thus, in the brocard, “Purchase breaks hire,” what by the nature of the subject is a real right — namely the hire — is taken to hold as a merely personal right; and, conversely, as in the case referred to above, what is in itself merely a personal right is held to be valid as a real right. And this is done only when the question arises as to the principles by which a court of justice in the civil state is to be guided, in order to proceed with all possible safety in delivering judgement on the rights of individuals.
Only one ground can be assigned on which it could be held that men are bound in the juridical relation to believe and to confess that there are gods, or that there is a God. It is that they may be able to swear an oath; and that thus by the fear of an all-seeing Supreme Power, whose revenge they must solemnly invoke upon themselves in case their utterance should be false, they may be constrained to be truthful in statement and faithful in promising. It is not morality but merely blind superstition that is reckoned upon in this process; for it is evident it implies that no certainty is to be expected from a mere solemn declaration in matters of right before a court, although the duty of truthfulness must have always appeared self-evident to all, in a matter which concerns the holiest that can be among men — namely, the right of man. Hence recourse has been had to a motive founded on mere myths and fables as imaginary guarantees. Thus among the Rejangs, a heathen people in Sumatra, it is the customaccording to the testimony of Marsden — to swear by the bones of their dead relatives, although they have no belief in a life after death. In like manner the negroes of Guinea swear by their fetish, a bird’s feather, which they imprecate under the belief that it will break their neck. And so in other cases. The belief underlying these oaths is that an invisible power — whether it has understanding or notby its very nature possesses magical power that can be put into action by such invocations. Such a belief — which is commonly called religion, but which ought to be called superstition — is, however, indispensable for the administration of justice; because, without referring to it, a court of justice would not have adequate means to ascertain facts otherwise kept secret, and to determine rights. A law making an oath obligatory is therefore only given in behoof of the judicial authority.
But then the question arises as to what the obligation could be founded upon that would bind any one in a court of justice to accept the oath of another person as a right and valid proof of the truth of his statements which are to put an end to all dispute. In other words, what obliges me juridically to believe that another person when taking an oath has any religion at all, so that I should subordinate or entrust my right to his oath? And, on like grounds, conversely, can I be bound at all to take an oath? It is evident that both these questions point to what is in itself morally wrong.
But in relation to a court of justice — and generally in the civil state — if it be assumed there are no other means of getting to the truth in certain cases than by an oath, it must be adopted. In regard to religion, under the supposition that every one has it, it may be utilized as a necessary means (in causu necessitatis), in behoof of the legitimate procedure of a court of justice. The court uses this form of spiritual compulsion (tortura spiritualis) as an available means, in conformity with the superstitious propensity of mankind, for the ascertainment of what is concealed; and therefore holds itself justified in so doing. The legislative power, however, is fundamentally wrong in assigning this authority to the judicial power, because even in the civil state any compulsion with regard to the taking of oaths is contrary to the inalienable freedom of man.
Official oaths, which are usually promissory, being taken on entering upon an office, to the effect that the individual has sincere intention to administer his functions dutifully, might well be changed into assertory oaths, to be taken at the end of a year or more of actual administration, the official swearing to the faithfulness of his discharge of duty during that time. This would bring the conscience more into action than the promissory oath, which always gives room for the internal pretext that, with the best intention, the difficulties that arose during the administration of the official function were not foreseen. And, further, violations of duty, under the prospect of their being summed up by future censors, would give rise to more anxiety as to censure than when they are merely represented, one after the other, and forgotten.
As regards an oath taken concerning a matter of belief (de credulitate), it is evident that no such oath can be demanded by a court. 1. For, first, it contains in itself a contradiction. Such belief, as intermediate between opinion and knowledge, is a thing on which one might venture to lay a wager but not to swear an oath. 2. And, second, the judge who imposes an oath of belief, in order to ascertain anything pertinent to his own purpose or even to the common good, commits a great offence against the conscientiousness of the party taking such an oath. This he does in regard both to the levity of mind, which he thereby helps to engender, and to the stings of conscience which a man must feel who to-day regards a subject from a certain point of view, but who will very probably to-morrow find it quite improbable from another point of view. Any one, therefore, who is compelled to take such an oath, is subjected to an injury.
The juridical state is that relation of men to one another which contains the conditions under which it is alone possible for every one to obtain the right that is his due. The formal principle of the possibility of actually participating in such right, viewed in accordance with the idea of a universally legislative will, is public justice. Public justice may be considered in relation either to the possibility, or actuality, or necessity of the possession of objects — regarded as the matter of the activity of the will — according to laws. It may thus be divided into protective justice (justitia testatrix), commutative justice (justitia commutativa), and distributive justice (justitia distributiva), in the first mode of justice, the law declares merely what relation is internally right in respect of form (lex justi); in the second, it declares what is likewise externally in accord with a law in respect of the object, and what possession is rightful (lex juridica); and in the third, it declares what is right, and what is just, and to what extent, by the judgement of a court in any particular case coming under the given law. In this latter relation, the public court is called the justice of the country; and the question whether there actually is or is not such an administration of public justice may be regarded as the most important of all juridical interests.
The non-juridical state is that condition of society in which there is no distributive justice. It is commonly called the natural state (status naturalis), or the state of nature. It is not the social state, as Achenwall puts it, for this may be in itself an artificial state (status artificialis), that is to be contradistinguished from the “natural” state. The opposite of the state of nature is the civil state (status civilis) as the condition of a society standing under a distributive justice. In the state of nature, there may even be juridical forms of society such as marriage, parental authority, the household, and such like. For none of these, however, does any law a priori lay it down as an incumbent obligation: “Thou shalt enter into this state.” But it may be said of the juridical state that: “All men who may even involuntarily come into relations of right with one another ought to enter into this state.”
The natural or non-juridical social state may be viewed as the sphere of private right, and the civil state may be specially regarded as the sphere of public right. The latter state contains no more and no other duties of men towards each other than what may be conceived in connection with the former state; the matter of private right is, in short, the very same in both. The laws of the civil state, therefore, only turn upon the juridical form of the coexistence of men under a common constitution; and, in this respect, these laws must necessarily be regarded and conceived as public laws.
The civil union (unio civilis) cannot, in the strict sense, be properly called a society; for there is no sociality in common between the ruler (imperans) and the subject (subditus) under a civil constitution. They are not co-ordinated as associates in a society with each other, but the one is subordinated to the other. Those who may be co-ordinated with one another must consider themselves as mutually equal, in so far as they stand under common laws. The civil union may therefore be regarded not so much as being, but rather as making a society.
From the conditions of private right in the natural state, there arises the postulate of public right. It may be thus expressed: “In the relation of unavoidable coexistence with others, thou shalt pass from the state of nature into a juridical union constituted under the condition of a distributive justice.” The principle of this postulate may be unfolded analytically from the conception of right in the external relation, contradistinguished from mere might as violence.
No one is under obligation to abstain from interfering with the possession of others, unless they give him a reciprocal guarantee for the observance of a similar abstention from interference with his possession. Nor does he require to wait for proof by experience of the need of this guarantee, in view of the antagonistic disposition of others. He is therefore under no obligation to wait till he acquires practical prudence at his own cost; for he can perceive in himself evidence of the natural inclination of men to play the master over others, and to disregard the claims of the right of others, when they feel themselves their superiors by might or fraud. And thus it is not necessary to wait for the melancholy experience of actual hostility; the individual is from the first entitled to exercise a rightful compulsion towards those who already threaten him by their very nature. Quilibet praesumitur malus, donec securitatem dederit oppositi.
So long as the intention to live and continue in this state of externally lawless freedom prevails, men may be said to do no wrong or injustice at all to one another, even when they wage war against each other. For what seems competent as good for the one is equally valid for the other, as if it were so by mutual agreement. Uti partes de jure suo disponunt, ita jus est. But generally they must be considered as being in the highest state of wrong, as being and willing to be in a condition which is not juridical, and in which, therefore, no one can be secured against violence, in the possession of his own.
The distinction between what is only formally and what is also materially wrong, and unjust, finds frequent application in the science of right. An enemy who, on occupying a besieged fortress, instead of honourably fulfilling the conditions of a capitulation, maltreats the garrison on marching out, or otherwise violates the agreement, cannot complain of injury or wrong if on another occasion the same treatment is inflicted upon themselves. But, in fact, all such actions fundamentally involve the commission of wrong and injustice, in the highest degree; because they take all validity away from the conception of right, and give up everything, as it were by law itself, to savage violence, and thus overthrow the rights of men generally.
Last updated Monday, December 22, 2014 at 10:52