The Philosophy of Law: Private Right, § 9: An External Mine and Thine in the State of Nature Only Provisory
Private Right, § 9: An External Mine and Thine in the State of Nature Only Provisory
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 distinguised from its being specially assigned and determined to him.—All Guarantee, therefore, assumes that every one to whom a thing is secured, is already in possesion 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 every one 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 accord ance 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 beheld 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 every one 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 l»y 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 any one 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, asre«ards all proper use of it.