The Philosophy of Law: Private Right, § 16: Exposition of the Conception of a Primary Acquisition of the Soil
Private Right, § 16: Exposition of the Conception of a Primary Acquisition of the Soil
All men are originally in a common collective possession of the Soil of the whole Earth (Communio fundi origi-naria), and they have naturally each a Will to use it (Icxjusti). But on account of the opposition of the free / Will of one to that of the other in the sphere of action, which is inevitable by nature, all use of the soil would be prevented did not every will contain at the same time a Law for the regulation of the relation of all Wills m action, according to which a particular possession can be determined to every one upon the common soil. This the juridical Law (lex juridica). But the distributive Law of the Mine and Thine, as applicable to each indi-idual on the soil, according to the Axiom of external Freedom, cannot proceed otherwise than from a primarily united Will ti priori—which does not presuppose any juridical act as requisite for this union. This Law can only take form in the Civil State (lex justitice distributive?); as it is in this state alone that the united common Will determines what is right, what is rightful, and what is the constitution of Right. In reference to this state, however,—and prior to its establishment and in view of it,—it is provisorily a Duty for every one to proceed accord ing to the Law of external Acquisition; and accordingly it is a juridical procedure on the part of the Will to lay every one under Obligation to recognise the act of possessing and appropriating, although it be only unilaterally. Hence a provisory Acquisition of the Soil, with all its juridical consequences, is possible in the state of Nature.
Such an Acquisition, however, requires and also obtains the favour of a Permissive Law (Lex permissiva), in respect of the determination of the limits of juridically possible Possession. For it precedes the juridical state, and as merely introductory to it is not yet peremptory; and this favour does not extend farther than the date of the consent of the other co-operators in the establishment of the Civil State. But if they are opposed to entering into the Civil State, as long as this opposition lasts it carries all the effect of a guaranteed juridical Acquisition with it, because the advance from the state of nature to the Civil State is founded upon a Duty.