The Philosophy of Law/Part 1/Chapter 1

1. The meaning of 'Mine' in Right.
(Meum Juris.)

is ‘Mine’ by Right, or is rightfully Mine, when I am so connected with it, that if any other Person should make use of it without my consent, he would do me a lesion or injury. The subjective condition of the use of anything, is Possession of it.

An external thing, however, as such could only be mine, if I may assume it to be possible that I can be wronged by the use which another might make of it when it is not actually in my possession. Hence it would be a contradiction to have anything External as one's own, were not the conception of Possession capable of two different meanings, as sensible Possession that is perceivable by the senses, and rational Possession that is perceivable only by the Intellect. By the former is to be understood a physical Possession, and by the latter, a purely juridical Possession of the same object.

The description of an Object as ‘external to me’ may signify either that it is merely 'different and distinct from me as a Subject,' or that it is also 'a thing placed outside of me, and to be found elsewhere in space or time.' Taken in the first sense, the term Possession signifies 'rational Possession;' and, in the second sense, it must mean 'Empirical Possession.' A rational or intelligible Possession, if such be possible, is Possession viewed apart from physical holding or detention (detentio).

2. Juridical Postulate of the Practical Reason.
It is possible to have any external object of my Will as Mine. In other words, a Maxim to this effect—were it to become law—that any object on which the Will can be exerted must remain objectively in itself without an owner, as 'res nullius,' is contrary to the Principle of Right.

For an object of any act of my Will, is something that it would be physically within my power to use. Now, suppose there were things that by right should absolutely not be in our power, or, in other words, that it would be wrong or inconsistent with the freedom of all, according to universal Law, to make use of them. On this supposition, Freedom would so far be depriving itself of the use of its voluntary activity, in thus putting useable objects out of all possibility of use. In practical relations, this would be to annihilate them, by making them res nullius, notwithstanding the fact that acts of Will in relation to such things would formally harmonize, in the actual use of them, with the external freedom of all according to universal Laws. Now the pure practical Reason lays down only formal Laws as Principles to regulate the exercise of the Will; and therefore abstracts from the matter of the act of Will, as regards the other qualities of the object, which is considered only in so far as it is an object of the activity of the Will. Hence the practical Reason cannot contain, in reference to such an object, an absolute prohibition of its use, because this would involve a contradiction of external freedom with itself.—An object of my free Will, however, is one which I have the physical capability of making some use of at will, since its use stands in my power (in potentia). This is to be distinguished from having the object brought under my disposal (in potestatem meam reductum), which supposes not a capability merely, but also a particular act of the free-will. But in order to consider something merely as an object of my Will as such, it is sufficient to be conscious that I have it in my power. It is therefore an assumption a priori of the practical Reason, to regard and treat every object within the range of my free exercise of Will as objectively a possible Mine or Thine.

This Postulate may be called 'a Permissive Law' of the practical Reason, as giving us a special title which we could not evolve out of the mere conceptions of Right generally. And this Title constitutes the Right to impose upon all others an obligation, not otherwise laid upon them, to abstain from the use of certain objects of our free Choice, because we have already taken them into our possession. Reason wills that this shall be recognised as a valid Principle, and it does so as practical Reason; and it is enabled by means of this Postulate a priori to enlarge its range of activity in practice.

3. Possession and Ownership.
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.

4. Exposition of the Conception of the External Mine and Thine.
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 (praestatio);
 * (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 possession 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 inner '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 household, 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 themselves 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 possessions, only when and so far as I can assert this as a matter of Right.

5. Definition of the conception of the external Mine and Thine.
Definitions are nominal or real. A nominal Definition is sufficient merely to distinguish the object defined from all other objects, and it springs out of a complete and definite exposition of its conception. A real Definition further suffices for a Deduction of the conception defined, so as to furnish a knowledge of the reality of the object.—The nominal Definition of the external 'Mine' would thus be: 'The external Mine is anything outside of myself, such that any hindrance of my use of it at will, would be doing me an injury or wrong as an infringement of that Freedom of mine which may coexist with the freedom of all others according to a universal Law.' The real Definition of this conception may be put thus: 'The external Mine is anything outside of myself, such that any prevention of my use of it would be a wrong, although I may not be in possession of it so as to be actually holding it as an object.'—I must be in some kind of possession of an external object, if the object is to be regarded as mine; for, otherwise, any one interfering with this object would not, in doing so, affect me; nor, consequently, would he thereby do me any wrong. Hence, according to § 4, a rational Possession (possessio noumenon) must be assumed as possible, if there is to be rightly an external 'Mine and Thine.' Empirical Possession is thus only phenomenal possession or holding (detention) of the object in the sphere of sensible appearance (possessio phenomenon), although the object which I possess is not regarded in this practical relation as itself a Phenomenon,—according to the exposition of the Transcendental Analytic in the Critique of Pure Reason—but as a Thing in itself. For in the Critique of Pure Reason the interest of Reason turns upon the theoretical knowledge of the Nature of Things, and how far Reason can go in such knowledge. But here Reason has to deal with the practical determination of the action of the Will according to Laws of Freedom, whether the object is perceivable through the senses or merely thinkable by the pure Understanding. And Right, as under consideration, is a pure practical conception of the Reason in relation to the exercise of the Will under Laws of Freedom.

And, hence, it is not quite correct to speak of 'possessing' a Right to this or that object, but it should rather be said that an object is possessed in a purely juridical way; for a Right is itself the rational possession of an Object, and to 'possess a possession,' would be an expression without meaning.

6. Deduction of the conception of a purely juridical Possession of an External Object.
(Possessio noumenon.)

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 a 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 in direct 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 possession 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 a 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 a 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 (de 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, however, 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 domiciliary 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 me to regard it as Mine. Relative to others, so far as they know, it appears as a first possession in harmony with the law of external freedom; and, at the same time, it is embraced in the universal original possession which contains a priori the fundamental principle of the possibility of a private possession. Hence to disturb the first occupier or holder of a portion of the soil in his use of it, is a lesion or wrong done to him. The first taking of Possession has therefore a Title of Right (titulus possessionis) in its favour, which is simply the principle of the original common possession; and the saying that '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 a ground 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, something 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 consideration, 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 consequence 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.

7. Application of the Principle of the Possibility of an external Mine and Thine to Objects of Experience.
The conception of a purely juridical Possession, is not an empirical conception dependent on conditions of Space and Time, and yet it has practical reality. As such it must be applicable to objects of experience, the knowledge of which is independent of the conditions of Space and Time. The rational process by which the conception of Right is brought into relation to such objects so as to constitute a possible external Mine and Thine, is as follows. The Conception of Right, being contained merely in Reason, cannot be immediately applied to objects of experience, so as to give the conception of an empirical Possession, but must be applied directly to the mediating conception in the Understanding, of Possession in general; so that, instead of physical holding (Detentio) as an empirical representation of possession, the formal conception or thought of 'Having,' abstracted from all conditions of Space and Time, is conceived by the mind, and only as implying that an object is in my power and at my disposal (in potestate mea positum esse). In this relation, the term 'external' does not signify existence in another place than where I am, nor my resolution and acceptance at another time than the moment in which I have the offer of a thing: it signifies only an object different from or other than myself. Now the practical Reason by its Law of Right wills, that I shall think the Mine and Thine in application to objects, not according to sensible conditions, but apart from these and from the Possession they indicate; because they refer to determinations of the activity of the Will that are in accordance with the Laws of Freedom. For it is only a conception of the Understanding that can be brought under the rational Conception of Right. I may therefore say that I possess a field, although it is in quite a different place from that on which I actually find myself. For the question here is not concerning an intellectual relation to the object, but I have the thing practically in my power and at my disposal, which is a conception of Possession realized by the Understanding and independent of relations of space; and it is mine, because my Will in determining itself to any particular use of it, is not in conflict with the Law of external Freedom. Now it is just in abstraction from physical possession of the object of my free-will in the sphere of sense, that the Practical Reason wills that a rational possession of it shall be thought, according to intellectual conceptions which are not empirical, but contain a priori the conditions of rational possession. Hence it is in this fact, that we found the ground of the validity of such a rational conception of possession (possessio noumenon) as the principle of a universally valid Legislation. For such a Legislation is implied and contained in the expression, 'This external object is mine,' because an Obligation is thereby imposed upon all others in respect of it, who would otherwise not have been obliged to abstain from the use of this object.

The mode, then, of having something External to myself as Mine, consists in a specially juridical connection of the Will of the Subject with that object, independently of the empirical relations to it in Space and in Time, and in accordance with the conception of a rational possession.—A particular spot on the earth is not externally Mine because I occupy it with my body; for the question here discussed refers only to my external Freedom, and consequently it affects only the possession of myself, which is not a thing external to me, and therefore only involves an internal Right. But if I continue to be in possession of the spot, although I have taken myself away from it and gone to another place, only under that condition is my external Right concerned in connection with it. And to make the continuous possession of this spot by my person a condition of having it as mine, must either be to assert that it is not possible at all to have anything External as one's own, which is contrary to the Postulate in § 2, or to require, in order that this external Possession may be possible, that I shall be in two places at the same time. But this amounts to saying that I must be in a place and also not in it, which is contradictory and absurd.

This position may be applied to the case in which I have accepted a promise; for my Having and Possession in respect of what has been promised, become established on the ground of external Right. This Right is not to be annulled by the fact that the promiser having said at one time, 'This thing shall be yours,' again at a subsequent time says, 'My will now is that the thing shall not be yours.' In such relations of rational Right the conditions hold just the same as if the promiser had, without any interval of time between them, made the two declarations of his Will, 'This shall be yours,' and also 'This shall not be yours;' which manifestly contradicts itself.

The same thing holds, in like manner, of the Conception of the juridical possession of a Person as belonging to the 'Having' of a subject, whether it be a Wife, a Child, or a Servant. The relations of Right involved in a household, and the reciprocal possession of all its members, are not annulled by the capability of separating from each other in space; because it is by juridical relations that they are connected, and the external 'Mine' and 'Thine,' as in the former cases, rests entirely upon the assumption of the possibility of a purely rational possession, without the accompaniment of physical detention or holding of the object.


 * Reason is forced to a Critique of its juridically Practical Function in special reference to the conception of the external Mine and Thine, by the Antinomy of the propositions enunciated regarding the possibility of such a form of Possession. For these give rise to an inevitable Dialectic, in which a Thesis and an Antithesis set up equal claims to the validity of two conflicting Conditions. Reason is thus compelled, in its practical function in relation to Right,—as it was in its theoretical function,—to make a distinction between Possession as a phenomenal appearance presented to the senses, and that Possession which is rational and thinkable only by the Understanding.


 * .—The Thesis, in this case, is, ‘It is possible to have something external as mine, although I am not in possession of it.’


 * .—The Antithesis is, ‘It is not possible to have anything external as mine, if I am not in possession of it.’


 * .—The Solution is, 'Both Propositions are true;' the former when I mean empirical Possession (possessio phaenomenon), the latter when I understand by the same term, a purely rational Possession (possessio noumenon).


 * But the possibility of a rational possession, and consequently of an external Mine and Thine, cannot be comprehended by direct insight, but must be deduced from the Practical Reason. And in this relation it is specially noteworthy that the Practical Reason without intuitional perceptions, and even without requiring such an element a priori, can extend its range by the mere elimination of empirical conditions, as justified by the law of Freedom, and can thus establish synthetical Propositions a priori. The proof of this in the practical connection, as will be shown afterwards, can be adduced in an analytical manner.

8. To have anything External as one's own is only possible in a Juridical or Civil State of Society under the regulation of a public legislative Power.
If, by word or deed, I declare my Will that some external thing shall be mine, I make a declaration that every other person is obliged to abstain from the use of this object of my exercise of Will; and this imposes an Obligation which no one would be under, without such a juridical act on my part. But the assumption of this Act, at the same time involves the admission that I am obliged reciprocally to observe a similar abstention towards every other in respect of what is externally theirs; for the Obligation in question arises from a universal Rule regulating the external juridical relations. Hence I am not obliged to let alone what another person declares to be externally his, unless every other person likewise secures me by a guarantee that he will act in relation to what is mine, upon the same Principle. This guarantee of reciprocal and mutual abstention from what belongs to others, does not require a special juridical act for its establishment, but is already involved in the Conception of an external Obligation of Right, on account of the universality and consequently the reciprocity of the obligatoriness arising from a universal Rule.—Now a single Will, in relation to an external and consequently contingent Possession, cannot serve as a compulsory Law for all, because that would be to do violence to the Freedom which is in accordance with universal Laws. Therefore it is only a Will that binds every one, and as such a common, collective, and authoritative Will, that can furnish a guarantee of security to all. But the state of men under a universal, external, and public Legislation, conjoined with authority and power, is called the Civil state. There can therefore be an external Mine and Thine only in the Civil state of Society.

.—It follows, as a Corollary, that if it is juridically possible to have an external object as one's own, the individual Subject of possession must be allowed to compel or constrain every person, with whom a dispute as to the Mine or Thine of such a possession may arise, to enter along with himself into the relations of a Civil Constitution.

9. There may, however, be an external Mine and Thine found as a fact in the state of Nature, but it is 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 accordance 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 be held 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 by 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, as regards all proper use of it.