All men are originally in a common collective possession of the soil of the whole earth (communio fundi originaria), and they have naturally each a will to use it (lex justi).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 in action, according to which a particular possession can be determined to every one upon the common soil.This is the juridical law (lex juridica).But the distributive law of the mine and thine, as applicable to each individual on the soil, according to the axiom of external freedom, cannot proceed otherwise than from a primarily united will a priori-which does not presuppose any juridical act as requisite for this union.This Law can only take form in the civil state (lex justitiae distributivae); 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 according 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.
17.Deduction of the Conception of the Original Primary Acquisition.
We have found the title of acquisition in a universal original community of the soil, under the conditions of an external acquisition in space; and the mode of acquisition is contained in the empirical fact of taking possession (apprehensio), conjoined with the will to have an external object as one's own.It is further necessary to unfold, from the principles of the pure juridically practical reason involved in the conception, the juridical acquisition proper of an object- that is, the external mine and thine that follows from the two previous conditions, as rational possession (possessio noumenon).
The juridical conception of the external mine and thine, so far as it involves the category of substance, cannot by "that which is external to me" mean merely "in a place other than that in which Iam"; for it is a rational conception.As under the conceptions of the reason only intellectual conceptions can be embraced, the expression in question can only signify "something that is different and distinct from me" according to the idea of a non-empirical possession through, as it were, a continuous activity in taking possession of an external object; and it involves only the notion of having something in my power, which indicates the connection of an object with myself, as a subjective condition of the possibility of making use of it.This forms a purely intellectual conception of the understanding.Now we can leave out or abstract from the sensible conditions of possession, as relations of a person to objects which have no obligation.This process of elimination just gives the rational relation of a person to persons; and it is such that he can bind them all by an obligation in reference to the use of things through his act of will, so far as it is conformable to the axiom of freedom, the postulate of right, and the universal legislation of the common will, conceived as united a priori.This is therefore the rational intelligible possession of things as by pure right, although they are objects of sense.
It is evident that the first modification, limitation, or transformation generally, of a portion of the soil cannot of itself furnish a title to its acquisition, since possession of an accident does not form a ground for legal possession of the substance.
Rather, conversely, the inference as to the mine and thine must be drawn from ownership of the substance according to the rule:
Accessarium sequitur suum principale.Hence one who has spent labour on a piece of ground that was not already his own, has lost his effort and work to the former owner.This position is so evident of itself that the old opinion to the opposite effect, that is still spread far and wide, can hardly be ascribed to any other than the prevailing illusion which unconsciously leads to the personification of things; and, then, as if they could be bound under an obligation by the labour bestowed upon them to be at the service of the person who does the labour, to regard them as his by immediate right.Otherwise it is probable that the natural question- already discussed- would not have been passed over with so light a tread, namely: "How is a right in a thing possible?" For, right as against every possible possessor of a thing means only the claim of a particular will to the use of an object so far as it may be included in the all-comprehending universal will, and can be thought as in harmony with its law.
