The Philosophy of Law: Public Right, § 44: Origin of the Civil Union and Public Right
IT is not from any Experience prior to the appearance of an external authoritative Legislation, that we learn of the maxim of natural violence among men, and their evil tendency to engage in war with each other. Noris it assumed here that it is merely some particular historical condition or fact, that makes public legislative constraint necessary; for however well - disposed or favourable to Right men may be considered to be of themselves, the rational Idea of a state of Society not yet regulated by Right, must be taken as our starting-point. This Idea implies that before a legal state of Society can be publicly established, individual Men, Nations and States can never be safe against violence from each other; and this is evident from the consideration that every one of his own Will naturally does what sctms yuod and rifjht in his man eyes, entirely independent of the opinion of others. Hence, unless the institution of Right is to be renounced, the first thing incumbent on men is to accept the Principle that it is necessary to leave the state of Nature, in which every one follows his own inclinations, and to form a union of all those who cannot avoid coming into reciprocal communication, and thus subject themselves in common to the external restraint of public compulsory Laws. Men thus enter into a Civil Union, in which every one has it determined by Law what shall be recognised as his; and this is secured to him by a competent external Power distinct from his own individuality. Such is the primary Obligation, on the part of all men, to enter into the relations of a Civil State of Society.
The natural condition of mankind need not, on this ground, be represented as a state of absolute Injustice, aw if there could have been no other relation originally among men but what was merely determined by force. But this natural condition must be regarded, if it ever existed, as a state of society that was void of regulation by Right (status justitice vacuus), so that if a matter of Right came to be in dispute (jus contr over sum), no competent judge was found to give an authorized legal decision upon it. It is therefore reasonable that any one should constrain another by force, to pass from such a rion - juridical state of life and enter within the jurisdiction of a civil state of Society. For, although on the basis of the ideas of Right held by individuals as such, external things may be acquired by Occupancy or Contract, yet such acquisition is only provisory so long as it has not yet obtained the sanction of a Public Law. Till this sanction is reached, the condition of possession is not determined by any public Distributive Justice, noris it secured by any Power exercising Public Right.
If men were not disposed to recognise any Acquisition at all as rightful—even in a provisional way—prior to entering into the Civil state, this state of Society would itself be impossible. For the Laws regarding the Mine and Thine in the state of Nature, contain formally the very same thing as they prescribe in the Civil state, when it is viewed merely according to rational conceptions: only that in the forms of the Civil state the conditions are laid down under which the formal prescriptions of the state of Nature attain realization conformable to-Distributive Justice.—Were there, then, not even ‘provisionally, an external Meum and Tuum in the state of Nature, neither would there be any juridical Duties in relation to them; and, consequently, there would be no obligation to pass out of that state into another.