1. Introduction
In the natural law tradition of the seventeenth and eighteenth centuries, the justification of property rights is not an isolated issue but one embedded in a particular understanding of laws of reason and principles of justice, the scope of natural rights, and the role of the state. Accordingly, early modern theories of private property have been widely examined, not only because they refer to a philosophical question that is relevant in itself, but also because they are a key element of any rational theory of the state. In the past few decades, Kant’s theory of property, as found in the section of the Rechtslehre titled Private Right, has received considerable attention. However, core issues concerning Kant’s view on private acquisition – such as the status of ownership rights in a pre-political condition and the role of property in grounding the necessity of the state – remain unsettled.Footnote 1
In this article, I examine Kant’s theory of property through a comparative analysis of Gottfried Achenwall’s justification of ownership rights – a connection that has not been sufficiently explored in the literature. Achenwall’s Ius naturae served as a basis for Kant’s lectures on natural right for more than a decade and had an important influence on his political philosophy.Footnote 2 Much has been said on the relationship between Kant’s theory of property and other prominent doctrines of natural law – especially Locke’s and Grotius’ theories – and this has clarified many aspects of his view.Footnote 3 Nevertheless, we can gain better insight into Kant’s own ideas on the topic by (also) looking into his immediate source. That Kant targeted Achenwall’s theory, as opposed to others, when e.g. discussing the notions of ‘right to things’, ‘juridical possession’, ‘property’ (dominium), ‘common possession of the earth’, etc., becomes clear when looking at the Naturrecht Feyerabend lecture notes (1784) and annotations that Kant made to his own copy of the handbook.
I focus on Kant’s theory of property as expounded in the Rechtslehre, and not in the lectures, because I am concerned with his theory of right in its systematic and final form. I am aware that Kant’s criticism of Achenwall is less visible in his published work; after all, Kant does not usually cite the authors whose position he is criticizing (an explicit reference to Achenwall is found, however, in Metaphysics of Morals (hereinafter, MM), 6: 306, 6: 286, and ‘Theory and Practice’, 8: 301 – and of course throughout the Feyerabend lectures notes and the Reflexionen). Yet there are many places in the Rechtslehre in which one can see that Kant is adopting Achenwall’s language and reasoning but drawing radically different conclusions. I will argue that Kant, in his theory of private acquisition as expounded in the section on Private Right, follows Achenwall in affirming that property rights stem from an act of the will. Kant holds that property rights are not innate and must be acquired through an empirical act of occupation joined by an act of willing to possess something as one’s own. The exact claim can be found in Achenwall’s Ius naturae. However, whereas Achenwall thinks of this ‘juridical act’ (factum juridicum), which creates new rights and obligations, as emerging from a private will, Kant argues that the acquisition of property rights can only take place through an act of public will. By contrasting these two views, I aim to illuminate one of the main features of Kant’s theory of property, namely, the notion that ownership rights are not natural but essentially political. Since they demand the formation of a general will, they are only possible within a rightfully constituted state.
The article proceeds as follows. Section 2 examines Achenwall’s doctrine of acquisition. I first analyse the distinction between innate and acquired rights and the scope of each subset of rights (2.1). I then deal with the question of how to acquire ownership rights (2.2) and discuss Achenwall’s rejection of the idea of common possession (2.3). Section 3 is devoted to Kant. I first analyse the distinction between innate and acquired rights (3.1) and then turn to the question of how to acquire ownership rights (3.2). Lastly, I examine the idea of Gemeinbesitz and highlight its relationship with the general will (3.3). Section 4 concludes.
2. Achenwall
2.1 Innate and acquired rights
As was common in the natural law tradition, Achenwall distinguishes between the ‘absolute natural law’ and the ‘conditional natural law’. Ius naturae considered absolutely is ‘the knowledge of the natural laws that must be observed in the original natural state’ (IN, I, §63).Footnote 4 It therefore encompasses ‘purely natural rights and obligations’ that ‘can be conceived of without any juridical act being given’. These rights and obligations apply to human beings due to their nature as such; that is, they are valid independently of, and prior to, any juridical act (i.e. a human act, IN, I, §62). Rights that one has ‘by mere humanity’ are called innate rights. By contrast, ius naturae considered conditionally is ‘the knowledge of the natural laws that should be observed in the acquired natural state’ (IN, I, §109). It contains the natural rights and obligations that ‘can be conceived of once a juridical act is given’. These rights and obligations do not apply to human beings only due to their nature as such; rather, they are introduced, or acquired, through a juridical act. Rights that one has once a juridical act is given are called acquired rights.
According to Achenwall, innate rights revolve around self-preservation. In virtue of our humanity, we have a natural right to preserve our own body and life and a ‘right to do anything that does not go against another person’s preservation’ (IN, I, §64). In addition to this, Achenwall argues that, in the state of nature, human beings enjoy natural equality and freedom. All men are by nature equal; they all have the same rights and obligations. Hence, everyone has an innate right ‘not to acknowledge another’s right to be more or greater than his own’ (IN, I, §73), and no one can be obliged ‘to recognize another’s overlordship’ (IN, I, §76).Footnote 5 From this Achenwall concludes that everyone has an innate right to freedom, understood as the ‘independence of another person’s will in acting’ (IN, I, §79).Footnote 6 However, Achenwall does not restrict the content of natural freedom to the idea of not being dependent on another person’s will. He also claims that innate freedom includes a right to act – in particular, to perform those actions that are necessary to fulfil our natural obligation to preserve and perfect ourselves. In this regard, natural liberty encompasses the right to accomplish one’s natural duties, the right to do whatever is required to perfect oneself, the right to use what is one’s own, the right to acquire and the right to preserve what is one’s own (IN, I, §81). Nevertheless, this original unlimited natural liberty is restricted in the conditional state of nature, namely, once men begin to acquire new rights.
The set of innate rights does not include property rights, as Achenwall believes that these must be acquired. He affirms that ‘proprietorship of things is innate to no one’ and that ‘by nature, the use of things is open to all’ (IN, I, §108, cf. I, §116). Ownership rights are not innate, but we do have a use-right to external things (in general) by birth. To support this claim, Achenwall follows a chain of reasoning found among natural law thinkers such as Grotius, Locke and Wolff: since we have a natural duty to pursue our natural end, we have a right to the means that allow us to comply with the laws of nature. This means that we have a right to procure the goods and use the resources without which the preservation (or perfection) of our own condition could not be achieved, as long as we do not wrong anyone. Achenwall emphasizes, however, that ‘the right to use vacant things’ should not be confused with ‘a right to use a thing that is one’s property’. Whereas the former is innate, the latter is acquired (IN, I, §116). Ownership rights thus have a twofold nature: they are both acquired and natural; they originate in a human act, a factum iuridicum, without being conceptually connected to the existence of the state. This is not an unconventional claim among modern natural law thinkers. Grotius and Locke, for instance, believed that ownership rights and their corresponding duties were natural but normatively dependent on some ‘human act’ (i.e. based on occupancy in the first case, and labour in the second). In the next sub-section, I will examine Achenwall’s view on the type of juridical act that can produce a right to a thing that is properly one’s own.
2.2 On how to acquire ownership rights
In the natural law tradition, it was disputed whether occupancy or labour was the method of private acquisition, that is, the human act (or activity) through which an ownerless thing (or, put positively, a thing owned commonly by everyone) can become one’s own. In connection to this, natural law thinkers sought to provide an answer to the question whether some form of consent (tacit or explicit) on the part of mankind was necessary following the corresponding ‘act’ of appropriation by an individual person. Paradigmatically, whereas Grotius argued that the legitimate method of private acquisition was occupancy, to which fellow inhabitants were to agree, Locke contended that appropriation must occur through labour, without consent being required.Footnote 7 Achenwall combines these two positions. Like Grotius, he holds that the act through which an external thing (or land) can become one’s own is occupancy, but he claims, with Locke, that individual acts of appropriation do not need the agreement of others.
Achenwall distinguishes between the method of acquisition (modus adquirendi) and the title of acquisition (titulus adquisitionis) (IN, I, §117). The title of acquisition refers to the validity of acquisition, i.e. why the occupant has a right to acquire an ownerless thing. The answer to this is quite straightforward: since we need to use goods and natural resources efficiently in order to pursue our preservation and perfection, the right to acquire belongs to our set of innate rights. In other words, we have an innate titulus to own things in general. For a certain thing to become one’s own property, however, one must perform a specific act, and this refers to the modus adquirendi. If the way in which one tries to appropriate a particular thing does not accord with the laws of nature, the act of acquisition is rendered wrongful (iniustum), and instead of bringing about a conditional state of nature, it will produce a state of war (IN, I, §62). Achenwall argues that occupancy as a method of acquiring a thing originally (i.e. not previously owned by another) involves two elements: an act (factum) and an intention (animus). In the first place, acquisition requires a corporeal or physical act ‘by which someone brings a thing into his power to the exclusion of others’. But a factum alone is not sufficient for acquisition. It must be accompanied by an ‘intention to make it one’s own’; namely, the occupant must will that the thing becomes his own. Achenwall goes on to say that there is no need for a verbal declaration of will; the mere act of taking control of a thing suffices as a tacit declaration (IN, I, §115). Since the vacant thing does not originally belong to anyone, a tacit or explicit declaration of will (i.e. consent) by others is also not required for that thing to legitimately become one’s own.
Finally, Achenwall draws a distinction between natural possession and juridical possession (IN, I, §120). The natural possession of a thing refers to the physical capacity or faculty (facultas physica) to use something, the act of having something in one’s own power to the exclusion of others. Juridical possession takes place when a man ‘has in his power the use of a thing that he wants to be his own, to the exclusion of others’; ‘he possesses it with the intention to have it as his property’ (IN, I, §120). Willing to have something as one’s own does not express a physical ability but rather a legal capacity (facultas legalis). Juridical possession therefore originates in a juridical act that involves two conceptual elements: the physical act of taking control of a thing and the intention to acquire it. Achenwall points out that occupancy generates not only a new right on the part of the (now) proprietor of the thing but also a new obligation on the part of others, namely, the obligation to refrain from making use of the thing occupied by the former. As he states: ‘someone’s legitimate act can create an obligation, certainly a negative one, for others to omit what they were not obliged to omit so far’ (IN, I, §122). In a nutshell, Achenwall believes that the introduction of property rights in the state of nature, and the corresponding acquisition of rights, has its origin in a human act which is described not only as a physical or corporeal act but also as an act of the will. This private will (of an individual man) has the juridical power not only to create rights but also to impose obligations on others unilaterally. This is why the generation of ownership rights removes innate equality (i.e. the original natural condition in which we all have the same rights and obligations) (IN, I, §122) and does so rightfully, given the fundamental duty to preserve and perfect ourselves.
2.3 Common possession of the earth
Arguments regarding private ownership in natural law theories usually commence with the thesis that God gave the earth to mankind to use it communally.Footnote 8 Achenwall briefly refers to the thesis of a communio primaeva and rejects it, both in its positive and in its negative manifestations.Footnote 9 According to the positive account, which he ascribes to Grotius, in the original state all things were possessed in common. According to the negative account, proposed by Pufendorf, all things were originally ownerless, although men shared a use-right to things (IN, I, §116).Footnote 10 Achenwall criticizes both Grotius and Pufendorf for presupposing that, at an early stage of human history, the earth and its resources were given to us in common. He maintains that, given that both authors premised their explanations of acquisition on a form of common possession, it was necessary for them to introduce some sort of agreement (for everyone is equally entitled to use the particular thing that an individual man is willing to acquire).Footnote 11 Furthermore, Achenwall argues that if things were originally vacant, they were not possessed in common. And if the original condition featured neither proprietorship nor community, there is no need for agreement on how to extract from the common bounty (IN, I, §116). Achenwall’s rejection of the existence of a primeval community of goods thus reinforces his claim that acts of acquisition do not need subsequent justification by consent. The reason for this claim is twofold: first, we have a natural right to do whatever is needed to achieve self-perfection and preservation, and therefore a right to acquire vacant things; and second, we have the natural authority to create obligations on the part of others through unilateral acts of appropriation, since, by acquiring external things, we are fulfilling our natural obligations established by the laws of nature, and ultimately, following the commands of God.Footnote 12
In sum, Achenwall understands property rights as stemming from an exclusive relationship between an individual human will and a particular thing, in accordance with the laws of nature. The fact that a right to a thing generates new correlating duties that others did not have prior to the act of private acquisition does not give rise to conflicting rights. Since the private appropriation of goods and natural resources is needed to comply with natural law, ownership rights override innate equality. This prompts the main question that, as I will argue in what follows, Kant’s theory of property attempts to answer: how can a non-natural juridical obligation be generated and justified such that it remains compatible with innate equality? As even Achenwall acknowledges, a unilateral will (which binds others without reciprocally being bound) inevitably conflicts with innate right. Before turning to Kant’s theory of acquisition, however, let us summarize the main points of Achenwall’s account of private ownership. Property rights:
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a) are natural (i.e. independent of the existence of the sovereign state),
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b) are non-innate but acquired through occupancy,
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c) have their source in a private will that is able to unilaterally bring about rights and obligations relating to private appropriation (rights and obligations that did not exist prior to an act of this will) and
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d) are not conceptually dependent on the idea of the common possession of the earth.
3. Kant
3.1 Innate and acquired rights
Following Achenwall, Kant draws a distinction within subjective right (i.e. ius considered as a moral faculty) between innate and acquired rights. On his view, while the former belongs to everyone by nature, the latter depend on a juridical act (rechtlicher Akt, factum juridicum) (MM, 6: 237). When introducing this division, however, Kant claims that ‘there is only one innate right’, clearly opposing Achenwall’s account of iura connata – in the plural – as a list of different substantive tituli related to self-preservation. The ‘only original right’ is freedom, understood as ‘independence from being constrained by another’s choice’ in accordance with the freedom of others under universal laws (MM, 6: 237). Freedom as innate right includes a set of moral powers (Befugnisse) (such as innate equality, the ‘independence of being bound by others to more than one can reciprocally bind them’ and the quality of being one’s own master). These powers do not consist in ‘independent’ rights or tituli but ‘lie already in the principle of innate freedom and … are not really distinct from it’ (MM, 6: 237).
Kant uses the term ‘mine and yours’ (Mein und Dein) to refer to subjective rights (i.e. when speaking of a right as something that someone has). This is why he calls innate right an innate ‘mine and yours’ (angeborne Mein und Dein). He holds, however, that innate right can also be called the internal ‘mine and yours’ (innere Mein und Dein) insofar as it does not presuppose any act of acquisition (i.e. it belongs to us by nature). The external ‘mine and yours’, by contrast, ‘must always be acquired’ (MM, 6: 237). Like Achenwall, he argues that rights that refer to the use of external objects of choice are not innate but must be acquired through a juridical act. Therefore, they must be brought about by an act of the will. Nevertheless, he also claims that property rights, and their corresponding obligations, cannot be generated by a private will because this would contradict the requirement of innate equality with regard to the (reciprocal) form of the obligation. The acquisition of ownership rights requires the formation of a general will and therefore the existence of a rightful political authority.
Kant’s so-called theory of property (he does not use the term Eigentumslehre himself) is found in §§1–17 of the section titled Private Right, which is in turn divided into a subsection devoted to the notion of possession (possessio, Besitz) (§§1–9) and a subsection on the notion of acquisition (acquisitio, Erwerbung) (§§10-17). Accordingly, I will flesh out his argument on property and the will by first discussing the notion of juridical possession (3.2a) and then that of acquisition in the strict sense of the term (3.2b). I will then briefly examine the idea of the common possession of the earth, focusing on its relationship with the general will (3.3).
3.2 On how to acquire ownership rights
(a) Juridical possession and the will
Recall that Achenwall distinguishes between natural and juridical possession of external things by arguing that, whereas the former refers to a physical ability to use a thing, the latter denotes a legal capacity to have something as one’s own. This distinction also plays a key role in Kant’s theory of property. The aim of §§1–9 (‘How to have something external as one’s own’) is to show that there is a form of possession that goes beyond detentio (the empirical act of holding a thing) and that this way of possessing something (intelligibly or juridically) is authorized by pure practical reason.
Kant holds that ‘what is juridically mine’ (das rechtlich Meine, meum iuris) is something ‘with which I am so connected that another’s use of it without my consent would wrong me (lädiren)’ (MM, 6: 245). A significant element of this definition of meum iuris is the notion of a wrong (Läsion, laesio): I can claim that I possess an external object of my choice if I can prove that any use of this object against my will would wrong me. As Kant argues in §6, if I am ‘physically connected’ to an external object of my choice (e.g. I grab an ‘ownerless’ apple) and someone takes it against my will, I can demonstrate that this act is wrong by appealing to the principle of right. According to this normative principle, any act that infringes upon my innate freedom (‘the independence from being constrained by another’s choice’, 6: 237) is wrong (unrecht). Now, the physical connection between an agent and an external object (to which the concept of empirical possession refers) turns out to be irrelevant for developing a normative theory of property, since the starting point of such a theory is precisely to show how a wrong, a Läsion, can take place even if one does not physically have in his power an object that he considers to be his.Footnote 13 In the preparatory notes for the Rechtslehre, Kant phrases it thus: ‘the problem is: how is a merely juridical possession possible? How is it possible that I wrong someone by my use of a thing with which he is not physically connected, or: how can someone through his mere power of choice preclude me from using a thing?’ (VARL, 23: 284). When focusing on the possibility of an existing Läsion, Kant centres the problem of possession on the justification of obligations (rather than framing it in terms of acquiring rights to things), for a wrong cannot occur if there is no obligation to refrain from using a certain object in the first place. Hence, showing how juridical possession is possible amounts to showing how we can acquire (new) obligations that we do not have innately (or exclusively according to the universal principle of right).
In order to demonstrate the possibility of juridical possession in accordance with principles of reason, and given that such authorization cannot be derived from the supreme law of right, Kant introduces the juridical postulate of practical reason.Footnote 14 I will not analyse the postulate (§2) and the deduction (§6) in detail here, but I will sketch the main argument. Accordingly, I will set aside the issue of the association of the postulate with the notion of ‘permissive law’. In virtue of the formal feature of right (i.e. it abstracts from the matter or end of the action), juridical a priori principles with regard to external objects of choice can determine either the possibility of juridical possession (‘something could be mine and yours’) or an absolute prohibition against it (‘nothing can be mine and yours’).Footnote 15 Kant argues that the second option would entail a ‘contradiction of external freedom with itself’ and that ‘it is therefore an a priori presupposition of practical reason to regard and treat any object of my choice as something which could objectively be mine and yours’ (MM, 6: 246). His explanation as to why a prohibition against possession leads to an absurd scenario is both obscure and condensed into two sentences. The idea behind this claim is that, since we are beings endowed with external freedom, we can de facto use external things. An external object of my choice is something that ‘I have the capacity to use as I please’ (ibid.). If reason (through its laws) forbade me to regard external things as possibly mine, ‘annihilating them in a practical respect’, external things would not be objects of my choice. And this would contradict a property of external freedom, namely, the capacity to consider external things as objects of my choice (ibid.).Footnote 16 In any case, it is important to highlight that the postulate does not authorize a right to property in a definitive way but only aims to demonstrate that the juridical possession of objects of choice is possible. Possession is in fact defined as the ‘subjective condition of any possible use’ (MM, 6: 245), and thus it is not equivalent to a property right or a ‘right to things’.Footnote 17
The postulate of practical reason raises the question of how to justify obligations that correspond to the claim of having some (particular) thing as one’s own. As I argued before, this is the salient issue when it comes to property, according to Kant: if I claim that x is mine, I am claiming that others are bound to refrain from using x, such that I would be wronged if they made use of it without my consent. Now, a unilateral claim to impose an obligation on others comes into conflict with innate equality. Kant distances himself from Achenwall on this point, for he believes that this element of innate right imposes a normative requirement on the form of juridical obligations that cannot be suppressed. Kant defines innate equality as ‘independence from being bound by others to more than one can reciprocally (wechselseitig) bind them’ (MM, 6: 237). This means that the generation of (new) juridical obligations (and the correlative acquisition of rights) must satisfy the ‘reciprocity criterion’ that is demanded by innate freedom. In fact, Kant views reciprocity not only as an element of right in a subjective sense (Recht as a Befügnis or facultas) but as an element of right in an objective sense (Recht as a Lehre or lex). In this latter sense, right is defined in §E as ‘the possibility of a universal reciprocal coercion (wechselseitigen Zwanges) that is consistent with everyone’s freedom in accordance with universal laws’ (6: 232).
In the previous section, we saw that Achenwall seems to recognize that the acquisition of rights comes into conflict with equality (although he thinks of this innate symmetry in terms of rights rather than obligations). However, Achenwall deals with this problem by pointing out the overriding aim of property rights, namely, self-preservation and, ultimately, perfection. After all, becoming a proprietor is a means of realizing our télos as rational beings. In §8 of the doctrine of possession, Kant tackles this issue by offering a radically different answer, in which the reciprocity of the obligation (required by innate equality and the normative concept of right) leads to the necessity of the general will as an a priori principle of legitimate possession.Footnote 18 Let us examine the argument more closely.
Kant begins §8 by stating the following:
When I declare (by word or deed), I will that something is to be mine, I thereby declare that everyone else is under obligation to refrain from using that object of my choice, an obligation no one would have were it not for this juridical act (rechtlichen Act) of mine. (MM, 6: 255)
The point of departure of the argument is the same as in Achenwall’s theory of property: claims to possession originate in a juridical act performed by an individual will – ‘I will this to be mine’. By means of this act, by taking something and willing to possess it, I am stating that others acquire an obligation that they did not have before (i.e. innately or by virtue of their humanity). Kant goes on to say:
This arrogation (Anmassung) involves, however, acknowledging that I am reciprocally (wechselseitig) under the obligation to every other to refrain from using what is externally his … I am therefore not under obligation to leave external things untouched unless everyone else provides me assurance that he will behave in accordance with the same principle regarding what is mine. (MM, 6: 255, emphasis mine)
Note here that Kant describes this act of willing not as a claim (as e.g. Mary Gregor’s translation would suggest) but as an arrogation (Anmassung), the German word corresponding to the Latin legal term arrogatio. Whereas a claim is a statement that has not yet been proved to be right or wrong, an arrogation is by definition an unjust assumption of a right.Footnote 19 This means that the act of willing to unilaterally bind others is immediately rendered illegitimate. Therefore, Kant argues that nobody is bound to refrain from using an external thing unless there is some assurance regarding the reciprocity of the obligation. Accordingly, if someone is to possess something in accordance with the normative principles of right, he must acknowledge that binding others regarding what he wants to be his involves reciprocally being bound regarding what others want to be theirs. Kant concludes:
[A] unilateral will cannot serve as a coercive law for everyone with regard to a possession that is external and therefore contingent, since that would infringe upon freedom in accordance with universal laws. So it is only a will putting everyone under obligation, hence only a collective general (common) and powerful will, that can provide everyone this assurance. (MM, 6: 256)
A unilateral will is thus a will that is incapable of meeting the reciprocity requirement set by the principle of innate right and, consequently, of bringing about obligations rightfully. A juridical obligation can be compatible with innate equality only if we presuppose the formation of a general will as a source of coactive laws. If the postulate of private right shows that juridical possession is possible, the general will as a principle of reason shows how it is possible: since ‘a general external (i.e. public) lawgiving accompanied with power is the civil condition’, ‘only in a civil condition can something external be mine and yours’ (MM, 6: 256).
(b) Acquisition and the will
If the idea of possession deals with the subjective conditions of use, the idea of acquisition refers to its objective aspect: ‘I acquire something when I bring it about (efficio) that it becomes mine’ (MM, 6: 258).Footnote 20 The section ‘How to acquire something external’ (§§10–17) revolves around the concept of original acquisition and introduces the idea of the common possession of the earth. For the sake of clarity, I will here focus on the former concept and will leave discussion of its relationship with the latter for a separate section.
The ‘principle of external acquisition’ states the following:
What I bring under my control (in accordance with the law of external freedom); which, as an object of my choice, is something that I have the capacity to use (in accordance with the postulate of practical reason); and which, finally, I will to be mine (in conformity with the idea of a possible united will), that is mine. (MM, 6: 258)
After introducing this principle, Kant spells out three aspects or ‘moments’ (Momente) involved in acquisition: apprehension (Apprehension), declaration (Bezeichnung, declaratio) and appropriation (Zueignung, appropriatio). The first step involves bringing something into one’s empirical possession, that is, an act of ‘taking possession of an object of choice in space and time’ (MM, 6: 258). Although no conclusive ownership right can be obtained from occupying a piece of land or holding an object, acquisition begins with an empirical act. Kant agrees with Achenwall in identifying the method of acquisition with occupancy rather than labour. All that is needed in order to have an empirical title to a thing is to take control of it (bemächtigen). This notwithstanding, the apprehension of an object must be done in accordance with external freedom; that is, the object must be ownerless (in the case of possession of a thing) or uninhabited (in the case of occupancy of land). Taking control of a thing or land already possessed by someone else (even in an empirical sense) would affect that person’s innate freedom and thus entail a wrong.
The second step or moment of acquisition, declaration, entails a transition from empirical to juridical possession. Recall here that both Achenwall and Kant argue that to have something as one’s own juridically involves not only an empirical act but also an intention, an act of the will. When I will this to be mine, Kant states, I declare ‘the possession of this object and the act of my choice (Act meiner Willkür) to exclude everyone else from it’ (MM, 6: 258). This moment introduces the unilateral claim to bind others that accompanies every pretension to acquire a right. The tension between the unilaterality of acquisition and innate equality is resolved in the third, conclusive, moment by drawing on the a priori principle of the general will.Footnote 21 Appropriation must be thought of not as an act of individual choice but ‘as the act of a general will (in idea) giving an external law through which everyone is bound to agree with others’ (6: 259, emphasis mine). In this last moment of acquisition ‘rests the conclusion “this external object is mine”’ (6: 259). Therefore, ownership rights depend on the a priori principle of the general will and thus on the sovereignty of the state. Kant seems to take Achenwall’s premise, i.e. property rights stem from an ‘act of the will’, for they require both an empirical act of seizing a thing and the intention to possess it juridically. This is clear in his description of acquisition as having three different ‘moments’. There is a first ‘empirical moment’ of occupation followed by a ‘juridical moment’ in which one wills to have something as his own and to put others under a new obligation. However, in the third ‘moment’, Kant draws a radically different conclusion than Achenwall’s, namely, the necessity of the formation of a collective will for a legitimate form of private property to exist.
3.3 Common possession of the earth
Contra Achenwall, and building on the idea that an individual act of willing is unable to generate property rights, Kant argues in favour of the communio possessionis originaria. His thesis also involves a radical rejection of the view of Achenwall’s ‘opponents’ on the matter, namely, Grotius’ and Pufendorf’s doctrine of communio primaeva.Footnote 22
The discussion of the common possession of the earth is found in §§11, 13 and 16 of the doctrine of acquisition.Footnote 23 When introducing this idea, Kant affirms that it is ‘the only condition under which it is possible for me to exclude every other possessor from the private use of a thing’ (MM, 6: 261). This statement raises important questions. Why is the concept of the common possession of the earth not mentioned earlier (namely, in the doctrine of possession) if it is nothing less than the condition of possibility of private acquisition? Why does he now say that it is necessary to presuppose this idea, in addition to the juridical postulate of practical reason and the principle of the general will, if we are to explain the acquisition of ownership rights? In sum, what is the systematic place of the Gemeinbesitz in Kant’s doctrine of property? Providing an exhaustive answer to these questions would take us beyond the aim of this article. But I will sketch the main features of the idea of original common possession and highlight its connection with the general will.
To begin with, the common possession of the earth refers specifically to the original acquisition of land, as is indicated in the reference to the latter in the titles of §§12, 13 and 16. This principle is said to ground the possibility of acquiring land, and in this sense it complements the postulate of private right.Footnote 24 In §13, Kant argues that ‘all human beings are originally (i.e., prior to any juridical act of choice) in a possession of land that is in conformity with right, that is, they have a right to be wherever nature or chance (without their will) has placed them’ (MM, 6: 262). This right, which is not obtained by means of a juridical act (and therefore it is not acquired), has to do with the necessity of occupying a portion of land. It is a title based on (an empirical) form of possession (since a ‘lasting possession’ of land must be juridically acquired), which is in turn derived from the mere fact that we are physically embodied beings who exist in a certain place in the world, ohne Wille.Footnote 25 The idea of original possession in common is not an ‘empirical concept’ and ‘must be sharply distinguished from a primaeval community (communio primaeva), which is a fiction’ (6: 251). For Grotius and Pufendorf, the common possession of the land was part of an evolutionary story that finished with the necessity of transitioning to a system of private acquisition, according to principles of natural justice. By contrast, Kant argues that ‘original possession in common is a practical rational concept which contains a priori the principle in accordance with which alone human beings can use a place on the earth in accordance with laws of right’ (6: 262, emphasis mine). As a concept of practical reason, it performs a normative function: given that we are beings in need of occupying a space on earth, and given that both physical occupancy and claims to the acquisition of land potentially give rise to conflict, reason commands us to conjointly make use of the earth and its resources rightfully. But what is the principle, contained a priori in the rational idea of Gemeinbesitz, that ought to shape the legitimate use and division of land?
Kant’s response is found in §16. There, he claims that ‘all human beings are originally in common possession of the land, and each has by nature the will to use it’ (MM, 6: 267). Since the individual uses of choice are ‘unavoidably opposed by nature’, and since claims to the acquisition of land that originate in empirical possession would clash with each other, this concept must also include ‘the principle for choice by which a particular possession for each on the common land could be determined’ (6: 267). Kant goes on to argue that the law that determines rights and distributes a portion of land to each can do so ‘in accordance with the axiom of external freedom’ ‘only if it proceeds from a will that is united originally and a priori … Hence, it proceeds only from a will in the civil condition (lex iustitia distributivae)’. With the idea of the original common possession of the earth Kant underpins the thesis that acts of acquisition are always initiated by a private will but lead, simultaneously, to the necessity of a public will as the only legitimate source of law. Furthermore, by placing the general will within the Gemeinbesitz as an idea of reason, he presses the fact that the unilaterality of acquisition, and the consequent necessity of omnilateral legislation, is a problem to be solved not only on a domestic but also on an international and cosmopolitan level, which concerns human beings as a united community that must coexist in the same finite, spherical space.Footnote 26
Let us now summarize the main points of Kant’s theory of private ownership. Property rights:
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a) are not natural (i.e. they are dependent on the sovereignty of the united will of the people),
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b) are non-innate but acquired through occupancy,
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c) ultimately have their source in the general will, which is able to reciprocally bring about rights and obligations relating to private appropriation (rights and obligations that did not exist prior to an act of this will) and
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d) are normatively dependent on the idea of the common possession of the earth.
4. Conclusion
Achenwall’s Ius naturae was essential in shaping Kant’s understanding of property rights, and his theory of right in general. Following Achenwall, Kant holds that acquired rights are bound up with an act of the will. Achenwall claims that this act is carried out by the will of an individual man, thus introducing property into the pre-juridical condition. By contrast, Kant conceives of this act as one performed by a public will. To his mind, a unilateral will is by definition incapable of creating obligations in a way that preserves innate equality. This amounts to the view that property rights are not natural but essentially political.Footnote 27 By this I mean that, for Kant, the structure of property rights is not formed by the idea of natural rights of possession through which an individual will is able to coerce others, as was the case for Achenwall. Since the acquisition of rights depends on the formation of a law-giving general will, ownership rights can only come into existence under a rightful public authority.Footnote 28 With this thesis, Kant was reacting to a widespread theory of acquisition of his time, one that presents property rights as stemming from an exclusive relationship between things and a private will, whose natural authority to bring about obligations is granted by the laws of nature.
Moreover, the political character of Kant’s account of property is also expressed in the reformulation of the common possession of the earth as a necessary idea of reason. Achenwall denies that a doctrine of acquisition requires such a normative idea, because he rejects the need for agreement on how to extract or appropriate natural resources. To Kant, the idea of common possession is central, for it shows that the use and distribution of land should include a collective process governed by the principle of the general will, which must take place not only within the state but also between states. If states remain in a pre-juridical condition, unilateral claims to acquisition or over a territory can only give rise to provisional titles of acquisition.Footnote 29 It is only by establishing a legal system of reciprocal obligations at an international level that empirical titles to acquisition can gain the status of actual property or territorial rights.
This last point raises an important issue on the provisionality of right. More remains to be said on the question of how to understand Kant’s claim that there might be a provisional form of possession, or a provisional ‘external mine and yours’, in the state of nature (cf. MM, 6: 257).Footnote 30 I would like to suggest that the idea of rights being provisional reflects tensions in Kant’s own thinking about the status of property rights originating from his intention of both delineating the state under ideal principles (or the ‘state in the idea’, in his own words) and providing a theory of law that concedes some degree of legitimacy to actual states. In effect, the Rechtslehre aims to establish a ‘universal criterion’ ‘by which one could recognize right as well as wrong’ and ‘the basis for any possible giving of positive law’ (6: 230). The result of this investigation is nothing less than the manifestation of the idea of a ‘perfectly rightful constitution’ (6: 371). As a concept of practical reason, this idea of a civil constitution will never take place in experience, yet ‘none must contradict it as a norm’ (6: 372). However, the fact that an actual state, or a system of rights of property, does not accord with this ideal cannot ground resistance to political authority (nor justify the use of force against unilateral appropriations of land). Rather, Kant’s reflection on territorial and ownership rights presents the political ideal that states should approximate for these forms of acquisition to be part of a legal system based on true freedom and equality, while also granting some legitimacy to actual states so as to make the necessary collective process of reforms possible. These tensions are absent in Achenwall’s doctrine of natural right, since the ideal character of Kant’s theory of right, and thus of his account of property, is a product of his critical project. A related source of difficulties is inherent to his own argument on ownership. Even though ‘all right is to proceed’ from the united will of the people (6: 313), any claim to possess a thing juridically necessarily begins with an individual act of appropriation. Therefore, this initiation of a process of acquisition by unilaterally taking possession of a thing, or a piece of land, must involve some degree of validity. These issues are of course a matter for future work.
Acknowledgements
I thank Mike Gregory, Suzanne Jacobi, Pauline Kleingeld, Anna Ortín Nadal, Vinicius Pinto de Carvalho, Janis Schaab, Leon van Rijsbergen, Pablo Zadunaisky and the audience at the Humboldt-Kolleg Ferrara for helpful comments on earlier versions of this article. I also benefited from comments from two anonymous referees for this journal. I am grateful to the Dutch Research Council (NWO) for supporting this research.
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