The Philosophy of Law: Private Right, §§ 3 and 4: Possession and Ownership; Exposition of the Conception of the External Mine and Thine
Private Right, §§ 3 and 4: Possession and Ownership; Exposition of the Conception of the External Mine and Thine
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 (prccstatio’);
(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 ssion of it, I am able to assert that I am in possession of it in another real non-physical sense.
Thus, I am not entitled to call an apple mine merely because I hold it in my hand or possess it physically; but only when I am entitled to say, ‘I possess it, although I have laid it out of my hand, and wherever it may lie.’ In like manner, I am not entitled to say of the ground, on which I may have laid myself down, that therefore it is mine; but only when I can rightly assert that it still remains in my possession, although I may have left the spot. For any one who, in the former appearances of empirical possession, might wrench the apple out of my hand, or drag me away from my resting-place, would, indeed, injure me in respect of the wrar ‘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 house hold, 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 them selves 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 posses sions, only when and so far as I can assert this as a matter of Right.