第14章

Possession (possessio), which is to be distinguished from residential settlement (sedes) as a voluntary, acquired, and permanent possession, becomes common possession, on account of the connection with each other of all the places on the surface of the earth as a globe.For, had the surface of the earth been an infinite plain, men could have been so dispersed upon it that they might not have come into any necessary communion with each other, and a state of social community would not have been a necessary consequence of their existence upon the earth.Now that possession proper to all men upon the earth, which is prior to all their particular juridical acts, constitutes an original possession in common (communio possessionis originaria).The conception of such an original, common possession of things is not derived from experience, nor is it dependent on conditions of time, as is the case with the imaginary and indemonstrable fiction of a primaeval community of possession in actual history.Hence it is a practical conception of reason, involving in itself the only principle according to which men may use the place they happen to occupy on the surface of the earth, in accordance with laws of right.

14.The Juridical Act of this Original Acquisition is Occupancy.

The act of taking possession (apprehensio), being at its beginning the physical appropriation of a corporeal thing in space (possessionis physicae), can accord with the law of the external freedom of all, under no other condition than that of its priority in respect of time.

In this relation it must have the characteristic of a first act in the way of taking possession, as a free exercise of will.The activity of will, however, as determining that the thing- in this case a definite separate place on the surface of the earth- shall be mine, being an act of appropriation, cannot be otherwise in the case of original acquisition than individual or unilateral (voluntas unilateralis s.propria).Now, occupancy is the acquisition of an external object by an individual act of will.The original acquisition of such an object as a limited portion of the soil can therefore only be accomplished by an act of occupation.

The possibility of this mode of acquisition cannot be intuitively apprehended by pure reason in any way, nor established by its principles, but is an immediate consequence from the postulate of the practical reason.The will as practical reason, however, cannot justify external acquisition otherwise than only in so far as it is itself included in an absolutely authoritative will, with which it is united by implication; or, in other words, only in so far as it is contained within a union of the wills of all who come into practical relation with each other.For an individual, unilateral will- and the same applies to a dual or other particular will-cannot impose on all an obligation which is contingent in itself.This requires an omnilateral or universal will, which is not contingent, but a priori, and which is therefore necessarily united and legislative.Only in accordance with such a principle can there be agreement of the active free-will of each individual with the freedom of all, and consequently rights in general, or even the possibility of an external mine and thine.

15.It is Only within a Civil Constitution that Anything can be Acquired Peremptorily, whereas in the State of Nature Acquisition can only be Provisory.

A civil constitution is objectively necessary as a duty, although subjectively its reality is contingent.Hence, there is connected with it a real natural law of right, to which all external acquisition is subjected.

The empirical title of acquisition has been shown to be constituted by the taking physical possession (apprehensio physica) as founded upon an original community of right in all to the soil.And because a possession in the phenomenal sphere of sense can only be subordinated to that possession which is in accordance with rational conceptions of right, there must correspond to this physical act of possession a rational mode of taking possession by elimination of all the empirical conditions in space and time.This rational form of possession establishes the proposition that "whatever I bring under my power in accordance with laws of external freedom, and will that it shall be mine, becomes mine."The rational title of acquisition can therefore only lie originally in the idea of the will of all united implicitly, or necessarily to be united, which is here tacitly assumed as an indispensable condition (conditio sine qua non).For by a single will there cannot be imposed upon others an obligation by which they would not have been otherwise bound.But the fact formed by wills actually and universally united in a legislation constitutes the civil state of society.Hence, it is only in conformity with the idea of a civil state of society, or in reference to it and its realization, that anything external can be acquired.Before such a state is realized, and in anticipation of it, acquisition, which would otherwise be derived, is consequently only provisory.The acquisition which is peremptory finds place only in the civil state.

Nevertheless, such provisory acquisition is real acquisition.For, according to the postulate of the juridically practical reason, the possibility of acquisition in whatever state men may happen to be living beside one another, and therefore in the state of nature as well, is a principle of private right.And in accordance with this principle, every one is justified or entitled to exercise that compulsion by which it alone becomes possible to pass out of the state of nature and to enter into that state of civil society which alone can make all acquisition peremptory.