The Philosophy of Law: Private Right, § 6: Deduction of the Conception of Juridical Possession of an External Object
Private Right, § 6: Deduction of the Conception of Juridical Possession of an External Object
The question, ‘How is an external Mine and Thine possible?’ resolves itself into this other question, ‘How is a merely juridical or rational Possession possible?’ And this second question resolves itself again into a third, ‘How is a synthetic proposition in Right possible 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 & 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 indirect 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 posses sion 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 ci 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 & 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 (<h 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, how ever, 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 domi ciliary 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
.0 regard it as Mine. Relative to others, so far they know, it appears as a first possession in har-
>ny with the law of external freedom; and, at the is embraced in the universal original possession which contains a priori the fundamental iciple of the possibility of a private possession isturb the first occupier or holder of a portion of the soil in his use of it, is a lesion or
“g done to him. The first taking of Possession has therefore a Title of Right (titulm possession)
favour, which is simply the principle of the original common possession; and the saying that 1 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 aground 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, some thing 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 considera tion, the procedure is just the converse of the theoretical process; so that all the conditions of perception which form the foundation of empirical possession must be abstracted or taken away in order to extend the range of the juridical Conception beyond the empirical sphere, and in order to be able to apply the Postulate, that every external object of the free activity of my Will, so far as I have it in my power, although not in the possession of it, may be reckoned as juridically Mine.
The possibility of such a possession, with consequent Deduction of the conception of a non-empirical possession, is founded upon the juridical Postulate of the Practical Reason, that ‘It is a juridical Duty so to act towards others that what is external and useable may come into the possession or become the property of some one.’ And this Postulate is conjoined with the exposition of the Conception that what is externally one’s own, is founded upon a possession, that is not physical The possibility of such a possession, thus conceived, cannot, however, be proved or comprehended in itself, because it is a rational conception for which no empirical perception can be furnished; but it follows as an immediate conse quence 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.