1. The possibility of acquired rights to external things

Within the Kantian framework, there is a need, Weinrib explains, to “bridge the gap that exists between the innate right of humanity in our own person and the acquired rights, such as the right of property.”Footnote ² How can this gap be overcome? In other words, on what basis would we move from a world of innate right alone, in which external things can be used but are not the objects of rights, to a condition in which external things are possible objects of rights?

Kant’s answer to this question has sometimes been expressed in terms of entitlement, demand, or the like; for instance, Kant has been said to hold that “[i]f persons can set and pursue purposes by using something other than their own bodies … they must be entitled to do so, unless such an entitlement would restrict the freedom of others”;Footnote ³ or again, that “freedom demands the possibility of choice-making authority with respect to things in the world”;Footnote ⁴ or that “there would be an affront to agency and thus to human personality, if some system were not arrived at which could permit useful objects to be used.”Footnote ⁵ But the force of these formulations has always struck me as somewhat mysterious.Footnote ⁶ It would seem that what needs to be shown at this juncture is precisely the basis for such an entitlement, demand, or affront; to appeal here directly to an entitlement (or the like) feels potentially question-begging.

I encountered a similar doubt at one point in Weinrib’s discussion. Weinrib submits that:

Here, the gap between innate right and the possibility of acquired rights to external things is bridged by the need to avoid a contradiction: namely, “the self-contradictory situation in which something usable could not be put to use.”Footnote ⁸ But the interpretation of this passage is complicated by the fact that Weinrib has just pointed out, on the immediately preceding page, that the notions of use and usability are equivocal—they can refer to simple empirical use of a thing, or they can refer to use under a claim of right, i.e., use that “attests to a juridical relationship between the actor and others with respect to that thing.”Footnote ⁹ In the passage quoted above, Weinrib does not make explicit which senses of ‘use’ and ‘usable’ are under discussion, so it is worth proceeding with care.

To repeat, Weinrib’s argument is that if the possibility of ownership is not recognized, then this would constitute a “self-contradictory situation in which something usable could not be put to use.” Now, the final phrase, “put to use,” cannot refer only to simple empirical use, because Weinrib has previously made clear that external things can permissibly be put to use in this sense even in a world of innate right alone, without reference to ownership: “Under innate right things can be used, but a thing does not count as the object of a right.”Footnote ¹⁰ Even if the possibility of ownership were never recognized, things could still be put to use in this sense, and there would be no contradiction.

So, the alleged self-contradictory situation consists in a state of affairs in which “something usable could not be put to [rightful] use.” But now there would seem to be a problem. If ‘usable’ is here meant to refer to use in the simple empirical sense, then there is no contradiction—for there is nothing directly contradictory in things being usable in the simple empirical sense yet not subject to rightful use (this is indeed the situation that pertains in a world of innate right alone).Footnote ¹¹ Perhaps further argument could establish that such a state of affairs is undesirable or morally intolerable or otherwise unacceptable, but it isn’t self-contradictory. Conversely, if ‘usable’ is meant to refer to rightful use, then there is a self-contradiction in the idea that “something [rightfully] usable could not be put to [rightful] use”—it is, after all, straightforwardly tautological to say that if something is rightfully usable then it can be put to rightful use—but this contradiction is derived by appealing to the status of things as rightfully usable, and cannot itself be used to establish that status. In other words, it seems that the proposition that things are rightfully usable—e.g., usable as property—can only be the basis for, not the consequence of, the contradiction that Weinrib invokes.

I thus find myself unable to discern how the appeal to self-contradiction helps to bridge the gap between innate right and acquired rights to external things.Footnote ¹² But two paragraphs before the reference to self-contradiction, Weinrib expresses the point in a subtly different way:

‘Usable’ here seems to refer to the permissibility of use in the simple, empirical sense noted above; Weinrib has just explained that things are usable in this sense because they have no innate right, and thus are eligible, as persons are not, to serve as mere means to our ends. But Weinrib does not say in this passage that because things are usable in this sense, it would be self-contradictory for them not to be subject also to rightful use, or that persons must be entitled to rightful use of them, or the like. He instead says simply that because they are usable, unlike persons they can be the objects of rightful use.

Professor Weinrib has denied that there is any difference in substance between these different ways of putting the point,Footnote ¹⁴ but somehow, for me at least, this simple shift between must and can seemed to unlock something in the Kantian account. The picture that it suggests is not one in which freedom demands, or asserts an entitlement to, the possibility of acquired rights to external things, nor one in which the lack of access to such rights is self-contradictory; it is rather a picture in which it is simply freedom’s nature to extend as far as it can—indeed, why wouldn’t it? Freedom doesn’t demand authority (whatever that would mean) because it doesn’t need to; whatever authority or scope freedom can possess, it does. In this specific sense, the metaphor of ‘bridging the gap’ between innate right and acquired rights could be misleading; it is perhaps not a matter of finding a positive reason (a ‘bridge’) that shows why acquired rights are possible, but rather a matter of observing that there is no reason they cannot be—that no bridge is needed because, while the terrain has changed, there is yet no obstacle that could impede freedom’s forward progress.

So, to return to the original question: On what basis would we move from a world of innate right, in which external things can be used but are not the objects of rights, into a condition in which external things are possible objects of rights? Perhaps the answer is simply, because we can; that is, within the formal space of reciprocal freedom there is no reason not to. Weinrib and other adherents of the Kantian account of ownership sometimes present this point in more thundering tones; but reflection on Weinrib’s various formulations has led me to wonder whether such rhetoric may obscure the simplicity and appeal of the essential idea.

2. The form of acquired rights to external things

Once the possibility of acquired rights to external things is established, the next question is what form these acquired rights will take. It has often been argued against the Kantian view that the purely formal requirements of reciprocal freedom are compatible with many different possible configurations of rights to external things, and therefore that the idea of reciprocal freedom alone affords insufficient resources to establish that ownership—with its absolute right to exclude, lack of limitation in time, etc.—should be the preferred form. And in particular, it has sometimes been suggested that the most that Kant can establish within his self-imposed constraints is an impermanent and non-exclusive usufructory right that is limited in some way to actual use.Footnote ¹⁵

In responding to this concern, Weinrib starts by considering a basic right to use that would only extend to things to which one is currently physically connected—the apple one is eating, the clothes one is wearing, the bed one is sleeping in, etc.Footnote ¹⁶ The apparent problem for the Kantian account is that even such a thin right would seem to satisfy the formal requirements of reciprocal freedom: In a world of innate right plus the right to mere physical use, rights would be correlative to obligations, and the action of each person would co-exist with the freedom of every other. We know this because the kinds of uses that would be protected by such a right are precisely the same uses that are already protected in a world of innate right alone, in which interference with a thing to which I am physically connected counts as a trespass in violation of my innate right to bodily integrity, because it disturbs the disposition of my body in relation to that thing.Footnote ¹⁷ But while it is permissible to eat apples in a world of innate right alone, and anyone who interferes with apples that are being eaten wrongs the eater, as Weinrib explains, “one does not thereby exercise a right to use them.”Footnote ¹⁸ The difference, then, in a world of innate right plus the right to mere physical use, would be that my use of an apple while I am eating it would be deemed not merely permissible but rightful. The objection to the Kantian account of ownership that follows is that this is an alternative form that acquired rights to external things could take, and one that is as consistent as ownership with the requirements of reciprocal freedom.

Weinrib, however, denies that such a thin right to use could be sufficient from the point of view of reciprocal freedom, for reasons related to the discussion in the previous section. There we saw that if rights to external things that go beyond innate right cannot be objected to on the basis of innate right, then according to the Kantian view, such rights are legitimately possible. The problem with the right to mere physical use is precisely that it does not go beyond what is already protected by innate right, which means that limiting our rights to external things in this way would be to limit the scope of our freedom without justification. Thus, Weinrib argues, what is required in recognition of the legitimate scope of our freedom with respect to external things is a kind of control over things that extends beyond actual, physical control:

In other words, in a world of innate right plus a right to mere physical use, the possibility of genuinely rightful use of external things would effectively go unrecognized.

From there, Weinrib goes on to argue that our rights to external things must not only exceed the right to mere physical use, but must further include the traditional incidents of ownership, including the right to exclude and all the rest. But I want to pause over the argument quoted above and to raise a question about it, because it seems to me that a right to physical use could be legally significant, in a way that Weinrib does not seem to address. If each of us has a genuine right to use the world’s apples in a way consistent with innate right, then at least according to one straightforward way of construing such a right, this would entail that another person cannot exclude me from the use of any apple without themselves being in physical contact with it—they cannot, for example, acquire the apple as property and make a rightful claim to exclude me from its use regardless of their own possession of it. According to this way of construing the right to use, they have the same right to physical use of the apple as I do, but they specifically do not have the further right to claim non-physical control over it; and the same naturally goes for me and for everyone else: We have no such further right.

The Hohfeldian correlative of such a ‘no-right’ (or ‘no-claim’) is of course a liberty or privilege—the privilege that we all have (in this scenario) to be free from rightful, i.e., non-physical, exclusion from the apple by others. This privilege—itself a kind of right, in the broader sense—is a reciprocal relation in which we stand to each other with respect to the external thing that serves as the object of the privilege (namely, the apple); and because the privilege relates us to one another by reference to the apple, it goes beyond innate right. We could accordingly say that the law, by recognizing this privilege, would treat “whatever is usable as the possible object of a right that is categorically different from the innate right in one’s person.”Footnote ²⁰ As such, the privilege seems to be a genuinely juridical relation that is legally significant, rather than otiose.

Let us call this privilege-right to use, as conceived in the previous two paragraphs, PRU. That PRU is a genuinely juridical relation—a proper right, one that goes beyond innate right—can be seen in light of the Franciscan controversy discussed at one point by Weinrib:

To be clear, I am not suggesting that mere physical use already “impl[ies] a property right in the thing used” that has the form of PRU. PRU has more substance than the right that the Franciscans’ opponents supposed that the Franciscans were committed to, because PRU goes beyond the mere permission to use a thing and includes also the right—the privilege—not to be excluded from the use of that thing by another’s assertion of non-innate right. The Franciscans renounced property for themselves in the things that they used, but they did not assert a privilege to use those things even against the claimed property rights of others; by contrast, to exercise PRU over a thing entails that no one (including the exerciser) can claim that thing as property.

PRU thus cannot be dismissed on the ground that “the status of a thing as something usable … [can only] be treated as legally significant … through the possibility of … non-physical control.”Footnote ²² Indeed, in the case of PRU, the status of things as usable—both in the simple empirical sense and in the sense of usable as a matter of right—is treated as legally significant precisely through the impossibility of non-physical control. What makes it legally significant in the relevant sense is that PRU recognizes the usability of things in a way that goes beyond innate right, because innate right alone does not settle whether non-physical control of external things is possible. Whereas the right to own goes beyond innate right by recognizing such non-physical control as possible, PRU goes beyond innate right by recognizing such non-physical control as impossible; both the right to own and PRU thus secure the possibility of rightful use of external things, though they secure very different—indeed, antithetical—forms of rightful use.

At least as far as I can see, then, PRU, like the right to own, renders legally significant the status of external things as rightfully usable, and in this respect would seem by Weinrib’s own lights to be satisfactory, in a similar way to the right to own, from the point of view of reciprocal freedom. If this is correct, then the Kantian account will need to rely upon some other consideration to justify its commitment to traditional ownership as the preferred form for acquired rights to external things.

It is certainly not my ambition here to rule out the possibility of some such other consideration, but I will close with three further points that seem to bolster PRU’s place alongside the right to own within Weinrib’s Kantian framework.

First, Weinrib argues in favor of a right to complete and exclusive control—that is, a right to own—in part on the basis that freedom can only be limited by freedom: “Because the thing has no freedom but merely the eligibility to be used, it cannot restrict what the owner can do with it. The thing falls within the owner’s complete control to do or not to do with it what he or she wishes.”Footnote ²³ It is worth emphasizing that this argument does not discredit PRU, because in the case of PRU it is not the thing itself that is the source of the limitation on what we can rightfully do with it, but rather the reciprocal claim held by each person to be free from rightful, i.e., non-physical, exclusion from that thing by others.

Nor is PRU to be understood as the realization of another possibility considered by Weinrib, namely that “[p]erhaps persons, not things, could rightfully limit the scope of usability” on the basis of scarcity—i.e., rights to things could be limited by the severe needs of others.Footnote ²⁴ Weinrib convincingly argues that scarcity is not relevant to reciprocal freedom because it rests on a concern—individual need—that is non-relational in character. But again, this does not discredit PRU, which is not grounded in non-relational circumstances like need, but in reciprocal claims to freedom from rightful, i.e., non-physical, exclusion from external things by one another. Indeed, PRU, like the right to own, is indifferent to need; PRU recognizes no exception, even where someone happens to need non-physical control over an object in order to secure the conditions of freedom. So here, too, it could be said that freedom is only limited by reciprocal freedom.

Second, if we compare ownership and PRU generally in terms of the way in which they realize or recognize our freedom with respect to external things, they seem comparable in several other important respects.Footnote ²⁵ As already discussed, they are both consistent with innate right, and they both conform with the rationale for extending freedom beyond innate right; that is, they both serve as realizations of the possibility that things can be the objects of rights that are distinct from innate right, and they both do so in ways that treat usability—in particular, the possibility of rightful use—as legally significant. But to this we can further add that, like the right to own, PRU extends our freedom as far as it can go in one direction. The right to own confers on owners complete and exclusive control over the things that they own; PRU confers on everyone a complete privilege (equally a matter of right) from the exercise of such exclusive control by others. (Conversely, both PRU and the right to own “rightfully limit the scope of usability” but do so along different dimensions.) Thus, again with reference to either right, we could equally say that “[w]ithin a regime of reciprocal freedom, freedom alone governs the connection between” persons and things.Footnote ²⁶

Third, and finally, there is the matter of how PRU could be acquired. Unlike innate right, which “refers to what is rightfully every person’s by virtue of his or her existence,” PRU is a right “to objects external to the person” and therefore (one might think, within the Kantian framework as developed by Weinrib) it must be “contingent on the particular history of each right-holder,” and in particular on “an appropriate act of acquisition.”Footnote ²⁷ So how, in practical terms, would a right such as PRU be acquired?

Weinrib notes that original acquisition of ownership over a thing “is accomplished by a person’s taking control of the unowned thing,” but of course this requires more than a physical act of control; otherwise, merely using a thing (in the simple, empirical sense) would constitute acquisition.Footnote ²⁸ Rather, taking control in the sense required for acquisition of ownership also comprises an assertion of a specific right—a right of ownership—over that thing.Footnote ²⁹ It is not clear that there is anything in the nature of original acquisition, then, that would prevent PRU from being acquired in exactly the same way as a right of ownership, by taking control of a thing and asserting PRU, rather than ownership, over that thing.

As with ownership, such an acquisition of PRU would raise the question of how it is that a unilateral act that has “nothing relational about it” can yet have a “relational effect”: namely, the effect of prohibiting others from making a rightful claim of ownership over the thing in question.Footnote ³⁰ This is, of course, a version of the very question that Weinrib, following Kant, poses about original acquisition of ownership:

Weinrib’s Kantian answer to this question is that “ownership is legitimate when one person’s acquisition is related to acquisitions by others through a general system of acquisition.… The site for the system of acquisition is the state.”Footnote ³² Acts of original acquisition in the “state of nature”—outside the “civil condition”Footnote ³³ of the state—can thus establish only rights of ownership that are “provisional”; such rights are not established “conclusively” until they are ratified by the collective will through the state in the civil condition, rendering them into a system of reciprocal relations of right that is consistent with innate equality.Footnote ³⁴

Parallel reasoning would apply to unilateral acquisition of PRU in the state of nature. Such acquisition could only establish PRU as a right ‘provisionally’, subject to ratification or rejection by the collective will through the state, once the civil condition has been achieved. The question, then, for adherents of the Kantian account of ownership, is why a legitimate acquisition of (provisional) PRU would not be just as eligible as a legitimate acquisition of (provisional) ownership to be ratified by the collective will under the civil condition?

This suggests a further point in response to the question of how a right such as PRU could be acquired. Exactly how, and indeed whether, PRU could be legitimately (provisionally) acquired outside of the civil condition is perhaps less important than the fact that PRU is consistent with the requirements of reciprocal freedom and renders legally significant the status of external things as rightfully usable. Because PRU possesses these features, PRU would seem to be eligible as an option for the collective will to settle on in the civil condition, even if no individual had provisionally acquired PRU prior to the civil condition having been entered into. If this is correct, then the question of whether acquired rights to external things should ultimately take the form of a system of ownership or a system of PRU, or a mixed system that recognizes both forms of right (and perhaps others), can only be settled within the civil condition. Moreover, it may be that there is less to be learned about how best to settle this question within the civil condition by studying possible provisional configurations of rights within the state of nature (whether understood historically or hypothetically) than adherents of the Kantian account sometimes seem to assume.