10.: The general Principle of External Acquisition.
I acquire a thing when I act (efficio) so that it becomes mine.—An external thing is originally mine, when it is mine even without the intervention of a juridical Act. An Acquisition is original and primary, when it is not derived from what another had already made his own.
There is nothing External that is as such originally mine; but anything external may be originally acquired when it is an object that no other person has yet made his. — A state in which the Mine and Thine are in common, cannot be conceived as having been at any time original. Such a state of things would have to be acquired by an external juridical Act, although there may be an original and common possession of an external object. Even if we think hypothetically of a state in which the Mine and Thine would be originally in common as a ‘Communio mei et tui originaria,’ it would still have to be distinguished from a primeval communion (Communio primæva) with things in common, sometimes supposed to be founded in the first period of the relations of Right among men, and which could not be regarded as based upon Principles like the former, but only upon History. Even under that condition the historic Communio, as a supposed primeval Community would always have to be viewed as acquired and derivative (Communio derivativa).
The Principle of external Acquisition, then, may be expressed thus: ‘Whatever I bring under my power according to the Law of external Freedom, of which as an object of my free activity of Will I have the capability of making use according to the Postulate of the Practical Reason, and which I will to become mine in conformity with the Idea of a possible united common Will, is mine.’
The practical Elements (Momenta attendenda) constitutive of the process of original Acquisition are:—
1. Prehension or Seizure of an object which belongs to no one; for if it belonged already to some one the act would conflict with the Freedom of others that is according to universal Laws. This is the taking possession of an object of my free activity of Will in Space and Time; the Possession, therefore, into which I thus put myself is sensible or physical possession (possessio phenomenon);
2. Declaration of the possession of this object by formal designation and the act of my free-will in interdicting every other person from using it as his;
3. Appropriation, as the act, in Idea, of an externally legislative common Will, by which all and each are obliged to respect and act in conformity with my act of Will.
The validity of the last element in the process of Acquisition, as that on which the conclusion that ‘the external object is mine’ rests, is what makes the possession valid as a purely rational and juridical possession (possessio noumenon). It is founded upon the fact that as all these Acts are juridical, they consequently proceed from the Practical Reason, and therefore in the question as to what is Right, abstraction may be made of the empirical conditions involved, and the conclusion ‘the external object is mine’ thus becomes a correct inference from the external fact of sensible possession to the internal Right of rational Possession.
The original primary Acquisition of an external object of the action of the Will, is called Occupancy. It can only take place in reference to Substances or Corporeal Things. Now when this Occupation of an external object does take place, the Act presupposes as a condition of such empirical possession, its Priority in time before the act of any other who may also be willing to enter upon occupation of it. Hence the legal maxim, ‘qui prior tempore, potior jure.’ Such Occupation as original or primary is, further, the effect only of a single or unilateral Will; for were a bilateral or twofold Will requisite for it, it would be derived from a Contract of two or more persons with each other, and consequently it would be based upon what another or others had already made their own.—It is not easy to see how such an act of free-will as this would be, could really form a foundation for every one having his own.—However, the first Acquisition of a thing is on that account not quite exactly the same as the original Acquisition of it. For the Acquisition of a public juridical state by union of the Wills of all in a universal Legislation, would be such an original Acquisition, seeing that no other of the kind could precede it, and yet it would be derived from the particular Wills of all the individuals, and consequently become all-sided or omnilateral; for a properly primary Acquisition can only proceed from an individual or unilateral Will.
Division of the Subject of the Acquisition of the external Mine and Thine.
I. In respect of the Matter or Object of Acquisition, I acquire either a Corporeal Thing (Substance), or the Performance of something by another (Causality), or this other as a Person in respect of his state, so far as I have a Right to dispose of the same (in a relation of Reciprocity with him).
II. In respect of the Form or Mode of Acquisition, it is either a Real Right (jus reale), or a Personal Right (jus personale), or a Real-Personal Right (jus realiter personale), to the possession, although not to the use, of another Person as if he were a Thing.
III. In respect of the Ground of Right or the Title (titulus) of Acquisition—which, properly, is not a particular member of the Division of Rights, but rather a constituent element of the mode of exercising them—any thing External is acquired by a certain free Exercise of Will that is either unilateral, as the act of a single Will (facto), or bilateral, as the act of two Wills (pacto), or omnilateral, as the act of all the Wills of a Community together (lege).
FIRST SECTION. Principles of Real Right.
11.: What is a Real Right?
The usual Definition of Real Right, or ‘Right in a Thing’ (jus reale, jus in re), is that ‘it is a Right as against every possessor of it.’ This is a correct Nominal Definition. But what is it that entitles me to claim an external object from any one who may appear as its possessor, and to compel him, per vindicationem, to put me again, in place of himself, into possession of it? Is this external juridical relation of my Will a kind of immediate relation to an external thing?—If so, whoever might think of his Right as referring not immediately to Persons but to Things, would have to represent it, although only in an obscure way, somewhat thus. A Right on one side has always a Duty corresponding to it on the other, so that an external thing, although away from the hands of its first Possessor, continues to be still connected with him by a continuing obligation; and thus it refuses to fall under the claim of any other possessor, because it is already bound to another. In this way my Right, viewed as a kind of good Genius accompanying a thing and preserving it from all external attack, would refer an alien possessor always to me! It is, however, absurd to think of an obligation of Persons towards Things, and conversely; although it may be allowed in any particular case, to represent the juridical relation by a sensible image of this kind, and to express it in this way.
The Real Definition would run thus: ‘Right in a Thing is a Right to the Private Use of a Thing, of which I am in possession—original or derivative—in common with all others.’ For this is the one condition under which it is alone possible that I can exclude every other possessor from the private use of the Thing (jus contra quemlibet hujus rei possessorem). For, except by presupposing such a common collective possession, it cannot be conceived how, when I am not in actual possession of a thing, I could be injured or wronged by others who are in possession of it and use it.—By an individual act of my own Will I cannot oblige any other person to abstain from the use of a thing in respect of which he would otherwise be under no obligation; and, accordingly, such an Obligation can only arise from the collective Will of all united in a relation of common possession. Otherwise, I would have to think of a Right in a Thing, as if the Thing had an Obligation towards me, and as if the Right as against every Possessor of it had to be derived from this Obligation in the Thing, which is an absurd way of representing the subject.
Further, by the term ‘Real Right’ (jus reale) is meant not only the ‘Right in a Thing’ (jus in re), but also the constitutive principle of all the Laws which relate to the real Mine and Thine.—It is, however, evident that a man entirely alone upon the earth could properly neither have nor acquire any external thing as his own; because between him as a Person and all external Things as material objects, there could be no relations of Obligation. There is therefore, literally, no direct Right in a Thing, but only that Right is to be properly called ‘real’ which belongs to any one as constituted against a Person, who is in common possession of things with all others in the Civil state of Society.
12.: The First Acquisition of a Thing can only be that of the Soil.
By the Soil is understood all habitable Land. In relation to everything that is moveable upon it, it is to be regarded as a Substance, and the mode of the existence of the Moveables is viewed as an Inherence in it. And just as, in the theoretical acceptation, Accidents cannot exist apart from their Substances, so, in the practical relation, Moveables upon the Soil cannot be regarded as belonging to any one unless he is supposed to have been previously in juridical possession of the Soil so that it is thus considered to be his.
For, let it be supposed that the Soil belongs to no one. Then I would be entitled to remove every moveable thing found upon it from its place, even to total loss of it, in order to occupy that place, without infringing thereby on the freedom of any other; there being, by the hypothesis, no possessor of it at all. But everything that can be destroyed, such as a Tree, a House, and such like—as regards its matter at least—is moveable; and if we call a thing which cannot be moved without destruction of its form an immoveable, the Mine and Thine in it is not understood as applying to its substance, but to that which is adherent to it, and which does not essentially constitute the thing itself.
13.: Every part of the Soil may be originarily acquired; and the Principle of the possibility of such Acquisition is the original Community of the Soil generally.
The first Clause of this Proposition is founded upon the Postulate of the Practical Reason (§ 2); the second is established by the following Proof.
All Men are originally and before any juridical act of Will in rightful possession of the Soil; that is, they have a Right to be wherever Nature or Chance has placed them without their will. 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 primæval 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), as being at its beginning the physical appropriation of a corporeal thing in space (possessionis physicæ), 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 à 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.
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 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 à priori—which does not presuppose any juridical act as requisite for this union. This Law can only take form in the Civil State (lex justitiæ distributivæ); 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 I am;’ 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 à priori. This is therefore the rational intelligible possession of things as by pure Right, although they are objects of sense.
Property.
An external Object, which, in respect of its Substance, can be claimed by some one as his own, is called the Property (dominium) of that Person to whom all the Rights in it as a thing belong, like the Accidents inhering in a Substance, and which, therefore, he as the Proprietor (dominus) can dispose of at will (jus disponendi de re sua). But from this it follows at once, that such an object can only be a Corporeal Thing towards which there is no direct personal Obligation. Hence a man may be his own Master (sui juris) but not the Proprietor of himself (sui dominus), so as to be able to dispose of himself at will, to say nothing of the possibility of such a relation to other men; because he is responsible to Humanity in his own person. This point, however, as belonging to the Right of Humanity as such, rather than to that of individual men, would not be discussed at its proper place here, but is only mentioned incidentally for the better elucidation of what has just been said. It may be further observed that there may be two full Proprietors of one and the same thing, without there being a Mine and Thine in common, but only in so far as they are common Possessors of what belongs only to one of them as his own. In such a case the whole Possession without the Use of the thing, belongs to one only of the Co-proprietors (condomini); while to the other belongs all the Use of the thing along with its Possession. The former as the direct Proprietor (dominus directus), therefore, restricts the latter as the Proprietor in use (dominus utilis) to the condition of a certain continuous performance, with reference to the thing itself, without limiting him in the use of it.
SECOND SECTION. Principles of Personal Right.
18.: Nature and Acquisition of Personal Right.
The possession of the active free-will of another person, as the power to determine it by my Will to a certain action, according to Laws of Freedom, is a form of Right relating to the external Mine and Thine, as affected by the Causality of another. It is possible to have several such Rights in reference to the same Person or to different persons. The Principle of the System of Laws, according to which I can be in such possession, is that of Personal Right, and there is only one such Principle.
The Acquisition of a Personal Right can never be primary or arbitrary; for such a mode of acquiring it would not be in accordance with the Principle of the harmony of the freedom of my will with the freedom of every other, and it would therefore be wrong. Nor can such a Right be acquired by means of any unjust act of another (facto injusti alterius), as being itself contrary to Right; for if such a wrong as it implies were perpetrated on me, and I could demand satisfaction from the other, in accordance with Right, yet in such a case I would only be entitled to maintain undiminished what was mine, and not to acquire anything more than what I formerly had.
Acquisition by means of the action of another, to which I determine his Will according to Laws of Right, is therefore always derived from what that other has as his own. This derivation, as a Juridical act, cannot be effected by a mere negative relinquishment or renunciation of what is his (per derelictionem aut renunciationem); because such a negative Act would only amount to a cessation of his Right, and not to the acquirement of a Right on the part of another. It is therefore only by positive Transference (translatio), or Conveyance, that a Personal Right can be acquired; and this is only possible by means of a common Will, through which objects come into the power of one or other, so that as one renounces a particular thing which he holds under the common Right, the same object when accepted by another, in consequence of a positive act of Will, becomes his. Such transference of the Property of one to another is termed its Alienation. The act of the united Wills of two Persons, by which what belonged to one passes to the other, constitutes Contract.
19.: Acquisition by Contract.
In every Contract there are four Juridical Acts of Will involved; two of them being preparatory Acts, and two of them constitutive Acts. The two Preparatory Acts, as forms of treating in the Transaction, are Offer (oblatio) and Approval (approbatio); the two Constitutive Acts, as the forms of concluding the transaction, are Promise (promissum) and Acceptance (acceptatio). For an offer cannot constitute a Promise before it can be judged that the thing offered (oblatum) is something that is agreeable to the Party to whom it is offered, and this much is shown by the first two declarations; but by them alone there is nothing as yet acquired.
Further, it is neither by the particular Will of the Promiser nor that of the Acceptor that the property of the former passes over to the latter. This is effected only by the combined or united Wills of both, and consequently so far only as the Will of both is declared at the same time or simultaneously. Now, such simultaneousness is impossible by empirical acts of declaration, which can only follow each other in time, and are never actually simultaneous. For if I have promised, and another person is now merely willing to accept, during the interval before actual Acceptance, however short it may be, I may retract my offer, because I am thus far still free; and, on the other side, the Acceptor, for the same reason, may likewise hold himself not to be bound, up till the moment of Acceptance, by his counter-declaration following upon the Promise. — The external Formalities or Solemnities (solemnia) on the conclusion of a Contract, — such as shaking hands or breaking a straw (stipula) laid hold of by two persons, — and all the various modes of confirming the Declarations on either side, prove in fact the embarrassment of the contracting parties as to how and in what way they may represent Declarations, which are always successive, as existing simultaneously at the same moment; and these forms fail to do this. They are, by their very nature, Acts necessarily following each other in time, so that when the one Act is, the other either is not yet or is no longer.
It is only the philosophical Transcendental Deduction of the Conception of Acquisition by Contract, that can remove all these difficulties. In a juridical external relation, my taking possession of the free-will of another, as the cause that determined it to a certain Act, is conceived at first empirically by means of the declaration and counter-declaration of the free-will of each of us in time, as the sensible conditions of taking possession; and the two juridical Acts must necessarily be regarded as following one another in time. But because this relation, viewed as juridical, is purely Rational in itself, the Will as a law-giving faculty of Reason represents this possession as intelligible or rational (possessio noumenon), in accordance with conceptions of Freedom and under abstraction of those empirical conditions. And now, the two Acts of Promise and Acceptance are not regarded as following one another in time, but, in the manner of a pactum re initum, as proceeding from a common Will, which is expressed by the term ‘at the same time,’ or ‘simultaneous,’ and the object promised (promissum) is represented, under elimination of empirical conditions, as acquired according to the Law of the pure Practical Reason.
20.: What is acquired by Contract?
But what is that, designated as ‘External,’ which I acquire by Contract? As it is only the Causality of the active Will of another, in respect of the Performance of something promised to me, I do not immediately acquire thereby an external Thing, but an Act of the Will in question, whereby a Thing is brought under my power so that I make it mine.—By the Contract, therefore, I acquire the Promise of another, as distinguished from the Thing promised; and yet something is thereby added to my Having and Possession. I have become the richer in possession (locupletior) by the Acquisition of an active Obligation that I can bring to bear upon the Freedom and Capability of another. — This my Right, however, is only a personal Right, valid only to the effect of acting upon a particular physical Person and specially upon the Causality of his Will, so that he shall perform something for me. It is not a Real Right upon that Moral Person, which is identified with the Idea of the united Will of All viewed à priori, and through which alone I can acquire a Right valid against every Possessor of the Thing. For, it is in this that all Right in a Thing consists.
21.: Acceptance and Delivery.
A thing is not acquired in a case of Contract by the Acceptance (acceptatio) of the Promise, but only by the Delivery (traditio) of the object promised. For all Promise is relative to Performance; and if what was promised is a Thing, the Performance cannot be executed otherwise than by an act whereby the Acceptor is put by the Promiser into possession of the Thing; and this is Delivery. Before the Delivery and the Reception of the Thing, the Performance of the act required has not yet taken place; the Thing has not yet passed from the one person to the other, and consequently has not been acquired by that other. Hence the Right arising from a Contract, is only a Personal Right; and it only becomes a Real Right by Delivery.
THIRD SECTION. Principles of Personal Right that is Real in Kind.
(Jus realiter personale.)
22.: Nature of Personal Right of a Real Kind.
Personal Right of a real kind is the Right to the possession of an external object as a Thing, and to the use of it as a Person.—The Mine and Thine embraced under this Right relate specially to the Family and Household; and the relations involved are those of free beings in reciprocal real interaction with each other. Through their relations and influence as Persons upon one another, in accordance with the principle of external Freedom as the cause of it, they form a Society composed as a whole of members standing in community with each other as Persons; and this constitutes the Household.—The mode in which this social status is acquired by individuals, and the functions which prevail within it, proceed neither by arbitrary individual action (facto), nor by mere Contract (pacto), but by Law (lege). And this Law as being not only a Right, but also as constituting Possession in reference to a Person, is a Right rising above all mere Real and Personal Right. It must, in fact, form the Right of Humanity in our own Person; and, as such, it has as its consequence a natural Permissive Law, by the favour of which such Acquisition becomes possible to us.
23.: What is acquired in the Household?
The Acquisition that is founded upon this Law is, as regards its objects, threefold. The Man acquires a Wife; the Husband and Wife acquire Children, constituting a Family; and the Family acquire Domestics. All these objects, while acquirable, are inalienable; and the Right of Possession in these objects is the most strictly personal of all Rights.
THE RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY.
TITLE FIRST. Conjugal Right. (Husband and Wife.)
24.: The Natural Basis of Marriage.
The domestic Relations are founded on Marriage, and Marriage is founded upon the natural Reciprocity or intercommunity (commercium) of the Sexes. This natural union of the sexes proceeds either according to the mere animal Nature (vaga libido, venus vulgivaga, fornicatio), or according to Law. The latter is Marriage (matrimonium), which is the Union of two Persons of different sex for life-long reciprocal possession of their sexual faculties.—The End of producing and educating children may be regarded as always the End of Nature in implanting mutual desire and inclination in the sexes; but it is not necessary for the rightfulness of marriage that those who marry should set this before themselves as the End of their Union, otherwise the Marriage would be dissolved of itself when the production of children ceased.
And even assuming that enjoyment in the reciprocal use of the sexual endowments is an end of marriage, yet the Contract of Marriage is not on that account a matter of arbitrary will, but is a Contract necessary in its nature by the Law of Humanity. In other words, if a man and a woman have the will to enter on reciprocal enjoyment in accordance with their sexual nature, they must necessarily marry each other; and this necessity is in accordance with the juridical Laws of Pure Reason.
25.: The Rational Right of Marriage.
For, this natural ‘Commercium’—as a ‘usus membrorum sexualium alterius’—is an enjoyment for which the one person is given up to the other. In this relation the human individual makes himself a ‘res,’ which is contrary to the Right of Humanity in his own Person. This, however, is only possible under the one condition, that as the one Person is acquired by the other as a res, that same Person also equally acquires the other reciprocally, and thus regains and re-establishes the rational Personality. The Acquisition of a part of the human organism being, on account of its unity, at the same time the acquisition of the whole Person, it follows that the surrender and acceptation of, or by, one sex in relation to the other, is not only permissible under the condition of Marriage, but is further only really possible under that condition. But the Personal Right thus acquired is at the same time, real in kind; and this characteristic of it is established by the fact that if one of the married Persons run away or enter into the possession of another, the other is entitled, at any time, and incontestably, to bring such a one back to the former relation, as if that Person were a Thing.
26.: Monogamy and Equality in Marriage.
For the same reasons, the relation of the Married Persons to each other is a relation of Equality as regards the mutual possession of their Persons, as well as of their Goods. Consequently Marriage is only truly realized in Monogamy; for in the relation of Polygamy the Person who is given away on the one side, gains only a part of the one to whom that Person is given up, and therefore becomes a mere res. But in respect of their Goods, they have severally the Right to renounce the use of any part of them, although only by a special Contract.
27.: Fulfilment of the Contract of Marriage.
The Contract of Marriage is completed only by conjugal cohabitation. A Contract of two Persons of different sex, with the secret understanding either to abstain from conjugal cohabitation or with the consciousness on either side of incapacity for it, is a simulated Contract; it does not constitute a marriage, and it may be dissolved by either of the parties at will. But if the incapacity only arises after marriage, the Right of the Contract is not annulled or diminished by a contingency that cannot be legally blamed.
The Acquisition of a Spouse either as a Husband or as a Wife, is therefore not constituted facto—that is, by Cohabitation—without a preceding Contract; nor even pacto—by a mere Contract of Marriage, without subsequent Cohabitation; but only lege, that is, as a juridical consequence of the obligation that is formed by two Persons entering into a sexual Union solely on the basis of a reciprocal Possession of each other, which Possession at the same time is only effected in reality by the reciprocal ‘usus facultatum sexualium alterius.’
RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY.
TITLE SECOND. Parental Right. (Parent and Child.)
28.: The Relation of Parent and Child.
From the Duty of Man towards himself—that is, towards the Humanity in his own Person—there thus arises a personal Right on the part of the Members of the opposite sexes, as Persons, to acquire one another really and reciprocally by Marriage. In like manner, from the fact of Procreation in the union thus constituted, there follows the Duty of preserving and rearing Children as the Products of this Union. Accordingly Children, as Persons, have, at the same time, an original congenital Right—distinguished from mere hereditary Right—to be reared by the care of their Parents till they are capable of maintaining themselves; and this provision becomes immediately theirs by Law, without any particular juridical Act being required to determine it.
For what is thus produced is a Person, and it is impossible to think of a Being endowed with personal Freedom as produced merely by a physical process. And hence, in the practical relation, it is quite a correct and even a necessary Idea to regard the act of generation as a process by which a Person is brought without his consent into the world, and placed in it by the responsible free will of others. This Act, therefore, attaches an obligation to the Parents to make their Children—as far as their power goes—contented with the condition thus acquired. Hence Parents cannot regard their Child as, in a manner, a Thing of their own making, for a Being endowed with Freedom cannot be so regarded. Nor, consequently, have they a Right to destroy it as if it were their own property, or even to leave it to chance; because they have brought a Being into the world who becomes in fact a Citizen of the world, and they have placed that Being in a state which they cannot be left to treat with indifference, even according to the natural conceptions of Right.
29.: The Rights of the Parent.
From the Duty thus indicated, there further necessarily arises the Right of the Parents to the Management and Training of the Child, so long as it is itself incapable of making proper use of its body as an Organism, and of its mind as an Understanding. This involves its nourishment and the care of its Education. This includes, in general, the function of forming and developing it practically, that it may be able in the future to maintain and advance itself, and also its moral Culture and Development, the guilt of neglecting it falling upon the Parents. All this training is to be continued till the Child reaches the period of Emancipation (emancipatio), as the age of practicable self-support. The Parents then virtually renounce the parental Right to command, as well as all claim to repayment for their previous care and trouble; for which care and trouble, after the process of Education is complete, they can only appeal to the Children by way of any claim, on the ground of the Obligation of Gratitude as a Duty of Virtue.
From the fact of Personality in the Children, it further follows that they can never be regarded as the Property of the Parents, but only as belonging to them by way of being in their possession, like other things that are held apart from the possession of all others and that can be brought back even against the will of the Subjects. Hence the Right of the Parents is not a purely Real Right, and it is not alienable (jus personalissimum). But neither is it a merely Personal Right; it is a Personal Right of a real kind, that is, a Personal Right that is constituted and exercised after the manner of a Real Right.
It is therefore evident that the Title of a Personal Right of a Real Kind must necessarily be added, in the Science of Right, to the Titles of Real Right and Personal Right, the Division of Rights into these two being not complete. For, if the Right of the Parents to the Children were treated as if it were merely a Real Right to a part of what belongs to their house, they could not found only upon the Duty of the Children to return to them in claiming them when they run away, but they would be then entitled to seize them and to impound them like things or runaway cattle.
RIGHTS OF THE FAMILY AS A DOMESTIC SOCIETY.
TITLE THIRD. Household Right. (Master and Servant.)
30.: Relation and Right of the Master of a Household.
The Children of the House, who, along with the Parents, constitute a Family, attain majority, and become Masters of Themselves (majorennes, sui juris), even without a Contract of release from their previous state of Dependence, by their actually attaining to the capability of self-maintenance. This attainment arises, on the one hand, as a state of natural Majority, with the advance of years in the general course of Nature; and, on the other hand, it takes form, as a state in accordance with their own natural condition. They thus acquire the Right of being their own Masters, without the interposition of any special juridical act, and therefore merely by Law (lege); and they owe their Parents nothing by way of legal debt for their Education, just as the parents, on their side, are now released from their Obligations to the Children in the same way. Parents and Children thus gain or regain their natural Freedom; and the domestic society, which was necessary according to the Law of Right, is thus naturally dissolved.
Both Parties, however, may resolve to continue the Household, but under another mode of Obligation. It may assume the form of a relation between the Head of the House as its Master, and the other members as domestic Servants, male or female; and the connection between them in this new regulated domestic economy (societas herilis) may be determined by Contract. The Master of the House, actually or virtually, enters into Contract with the Children, now become major and masters of themselves; or, if there be no Children in the Family, with other free Persons constituting the membership of the Household; and thus there is established a domestic relationship not founded on social equality, but such that one commands as Master, and another obeys as Servant (Imperantis et subjecti Domestici).
The Domestics or Servants may then be regarded by the Master of the household, as thus far his. As regards the form or mode of his Possession of them, they belong to him as if by a Real Right; for if any of them run away, he is entitled to bring them again under his power by a unilateral act of his will. But as regards the matter of his Right, or the use he is entitled to make of such persons as his Domestics, he is not entitled to conduct himself towards them as if he was their proprietor or owner (dominus servi); because they are only subjected to his power by Contract, and by a Contract under certain definite restrictions. For a Contract by which the one party renounced his whole freedom for the advantage of the other, ceasing thereby to be a person and consequently having no duty even to observe a Contract, is self-contradictory, and is therefore of itself null and void. The question as to the Right of Property in relation to one who has lost his legal personality by a Crime, does not concern us here.
This Contract, then, of the Master of a Household with his Domestics, cannot be of such a nature that the use of them could ever rightly become an abuse of them; and the judgment as to what constitutes use or abuse in such circumstances is not left merely to the Master, but is also competent to the Servants, who ought never to be held in bondage or bodily servitude as Slaves or Serfs. Such a Contract cannot, therefore, be concluded for life, but in all cases only for a definite period, within which one party may intimate to the other a termination of their connection. Children, however, including even the children of one who has become enslaved owing to a Crime, are always free. For every man is born free, because he has at birth as yet broken no Law; and even the cost of his education till his maturity, cannot be reckoned as a debt which he is bound to pay. Even a Slave, if it were in his power, would be bound to educate his children without being entitled to count and reckon with them for the cost; and in view of his own incapacity for discharging this function, the Possessor of a Slave, therefore, enters upon the Obligation which he has rendered the Slave himself unable to fulfil.
SYSTEMATIC DIVISION Of all the Rights capable of being acquired by Contract.
31.: Division of Contracts. Juridical Conceptions of Money and A Book.
It is reasonable to demand that a metaphysical Science of Right shall completely and definitely determine the members of a logical Division of its Conceptions à priori, and thus establish them in a genuine System. All empirical Division, on the other hand, is merely fragmentary Partition, and it leaves us in uncertainty as to whether there may not be more members still required to complete the whole sphere of the divided Conception. A Division that is made according to a Principle à priori may be called, in contrast to all empirical Partitions, a dogmatic Division.
Every Contract, regarded in itself objectively, consists of two juridical Acts: the Promise and its Acceptance. Acquisition by the latter, unless it be a pactum re initum which requires Delivery, is not a part, but the juridically necessary Consequence of the Contract. Considered again subjectively, or as to whether the Acquisition, which ought to happen as a necessary Consequence according to Reason, will also follow, in fact, as a physical Consequence, it is evident that I have no Security or Guarantee that this will happen by the mere Acceptance of a Promise. There is therefore something externally required connected with the mode of the Contract, in reference to the certainty of Acquisition by it; and this can only be some element completing and determining the Means necessary to the attainment of Acquisition as realizing the purpose of the Contract. And in his connection and behoof, three Persons are required to intervene—the Promiser, the Acceptor, and the Cautioner or Surety. The importance of the Cautioner is evident; but by his intervention and his special Contract with the Promiser, the Acceptor gains nothing in respect of the Object, but the means of Compulsion that enable him to obtain what is his own.
According to these rational Principles of logical Division, there are properly only three pure and simple Modes of Contract. There are, however, innumerable mixed and empirical Modes, adding statutory and conventional Forms to the Principles of the Mine and Thine that are in accordance with rational Laws. But they lie outside of the circle of the Metaphysical Science of Right, whose Rational Modes of Contract can alone be indicated here.
All Contracts are founded upon a purpose of Acquisition, and are either
A. The Gratuitous Contracts (pacta gratuita) are—
B. The Onerous Contracts, are Contracts either of Permutation or of Hiring.
C. The Cautionary Contracts (cautiones) are:—
This List of all the modes in which the property of one Person may be transferred or conveyed to another, includes conceptions of certain objects or Instruments required for such transference (translatio). These appear to be entirely empirical, and it may therefore seem questionable whether they are entitled to a place in a Metaphysical Science of Right. For, in such a Science the Divisions must be made according to Principles à priori; and hence the matter of the juridical relation, which may be conventional, ought to be left out of account, and only its Form should be taken into consideration.
Such conceptions may be illustrated by taking the instance of Money, in contradistinction from all other exchangeable things as Wares and Merchandise; or by the case of a Book. And considering these as illustrative examples in this connection, it will be shown that the conception of Money as the greatest and most useable of all the Means of human intercommunication through Things, in the way of Purchase and Sale in commerce, as well as that of Books as the greatest Means of carrying on the interchange of Thought, resolve themselves into relations that are purely intellectual and rational. And hence it will be made evident that such Conceptions do not really detract from the purity of the given Scheme of pure Rational Contracts, by empirical admixture.
Illustration of Relations of Contract by the Conceptions of Money and A Book.
I.: What is Money?
Money is a thing which can only be made use of, by being alienated or exchanged. This is a good Nominal Definition, as given by Achenwall; and it is sufficient to distinguish objects of the Will of this kind from all other objects. But it gives us no information regarding the rational possibility of such a thing as money is. Yet we see thus much by the Definition: (1) that the Alienation in this mode of human intercommunication and exchange is not viewed as a Gift, but is intended as a mode of reciprocal Acquisition by an Onerous Contract; and (2) that it is regarded as a mere means of carrying on Commerce, universally adopted by the people, but having no value as such of itself, in contrast to other Things as mercantile Goods or Wares which have a particular value in relation to special wants existing among the people. It therefore represents all exchangeable things.
A bushel of Corn has the greatest direct value as a means of satisfying human wants. Cattle may be fed by it; and these again are subservient to our nourishment and locomotion, and they even labour in our stead. Thus by means of corn men are multiplied and supported, who not only act again in reproducing such natural products, but also by other artificial products they can come to the relief of all our proper wants. Thus are men enabled to build dwellings, to prepare clothing, and to supply all the ingenious comforts and enjoyments which make up the products of industry.—On the other hand, the value of Money is only indirect. It cannot be itself enjoyed, nor be used directly for enjoyment; it is, however, a Means towards this, and of all outward things it is of the highest utility.
We may found a Real Definition of Money provisionally upon these considerations. It may thus be defined as the universal means of carrying on the Industry of men in exchanging intercommunications with each other. Hence national Wealth, in so far as it can be acquired by means of Money, is properly only the sum of the Industry or applied Labour with which men pay each other, and which is represented by the Money in circulation among the people.
The Thing which is to be called Money must, therefore, have cost as much Industry to produce it, or even to put it into the hands of others, as may be equivalent to the Industry or Labour required for the acquisition of the Goods or Wares or Merchandise, as natural or artificial products, for which it is exchanged. For if it were easier to procure the material which is called Money than the goods that are required, there would be more Money in the market than goods to be sold; and because the Seller would then have to expend more labour upon his goods than the Buyer on the equivalent, the Money coming in to him more rapidly, the Labour applied to the preparation of goods and Industry generally, with the industrial productivity which is the source of the public Wealth, would at the same time dwindle and be cut down. — Hence Bank Notes and Assignations are not to be regarded as Money although they may take its place by way of representing it for a time; because it costs almost no Labour to prepare them, and their value is based merely upon the opinion prevailing as to the further continuance of the previous possibility of changing them into Ready Money. But on its being in any way found out that there is not Ready Money in sufficient quantity for easy and safe conversion of such Notes or Assignations, the opinion gives way, and a fall in their value becomes inevitable. Thus the industrial Labour of those who work the Gold and Silver Mines in Peru and Mexico—especially on account of the frequent failures in the application of fruitless efforts to discover new veins of these precious metals—is probably even greater than what is expended in the manufacture of Goods in Europe. Hence such mining Labour, as unrewarded in the circumstances, would be abandoned of itself, and the countries mentioned would in consequence soon sink into poverty, did not the Industry of Europe, stimulated in turn by these very metals, proportionally expand at the same time so as constantly to keep up the zeal of the Miners in their work by the articles of luxury thereby offered to them. It is thus that the concurrence of Industry with Industry, and of Labour with Labour, is always maintained.
But how is it possible that what at the beginning constituted only Goods or Wares, at length became Money? This has happened wherever a Sovereign as a great and powerful consumer of a particular substance, which he at first used merely for the adornment and decoration of his servants and court, has enforced the tribute of his subjects in this kind of material. Thus it may have been Gold, or Silver, or Copper, or a species of beautiful shells called Cowries, or even a sort of mat called Makutes, as in Congo; or Ingots of Iron, as in Senegal; or Negro Slaves, as on the Guinea Coast. When the Ruler of the country demanded such things as imposts, those whose Labour had to be put in motion to procure them were also paid by means of them, according to certain regulations of commerce then established, as in a Market or Exchange. As it appears to me, it is only thus that a particular species of goods came to be made a legal means of carrying on the industrial labour of the Subjects in their commerce with each other, and thereby forming the medium of the national Wealth. And thus it practically became Money.
The Rational Conception of Money, under which the empirical conception is embraced, is therefore that of a thing which, in the course of the public permutation or Exchange of possessions (permutatio publica), determines the Price of all the other things that form products or Goods — under which term even the Sciences are included, in so far as they are not taught gratis to others. The quantity of it among a people constitutes their Wealth (opulentia). For Price (pretium) is the public judgment about the Value of a thing, in relation to the proportionate abundance of what forms the universal representative means in circulation for carrying on the reciprocal interchange of the products of Industry or Labour. The precious metals, when they are not merely weighed but also stamped or provided with a sign indicating how much they are worth, form legal Money, and are called Coin.
According to Adam Smith, ‘Money has become, in all civilised nations, the universal instrument of Commerce, by the intervention of which Goods of all kinds are bought and sold or exchanged for one another.’—This Definition expands the empirical conception of Money to the rational idea of it, by taking regard only to the implied form of the Reciprocal Performances in the Onerous Contracts, and thus abstracting from their matter. It is thus conformable to the conception of Right in the Permutation and Exchange of the Mine and Thine generally (commutatio late sic dicta). The Definition, therefore, accords with the representation in the above Synopsis of a Dogmatic Division of Contracts à priori, and consequently with the Metaphysical Principle of Right in general.
II.: What is a Book?
A Book is a Writing which contains a Discourse addressed by some one to the Public, through visible signs of Speech. It is a matter of indifference to the present considerations whether it is written by a pen or imprinted by types, and on few or many pages. He who speaks to the Public in his own name, is the Author. He who addresses the writing to the Public in the name of the Author, is the Publisher. When a Publisher does this with the permission or authority of the Author, the act is in accordance with Right, and he is the rightful Publisher; but if this is done without such permission or authority, the act is contrary to Right, and the Publisher is a counterfeiter or unlawful Publisher. The whole of a set of Copies of the original Document, is called an Edition.
The unauthorized Publishing of Books is contrary to the Principles of Right, and is rightly prohibited.
A Writing is not an immediate direct presentation of a conception, as is the case, for instance, with an Engraving that exhibits a Portrait, or a Bust or Caste by a Sculptor. It is a Discourse addressed in a particular form to the Public; and the Author may be said to speak publicly by means of his Publisher. The Publisher, again, speaks by the aid of the Printer as his workman (operarius), yet not in his own name,—for otherwise he would be the Author,—but in the name of the Author; and he is only entitled to do so in virtue of a Mandate given him to that effect by the Author.—Now the unauthorized Printer and Publisher speaks by an assumed authority in his Publication; in the name indeed of the Author, but without a Mandate to that effect (gerit se mandatarium absque mandato). Consequently such an unauthorized Publication is a wrong committed upon the authorized and only lawful Publisher, as it amounts to a pilfering of the Profits which the latter was entitled and able to draw from the use of his proper Right (furtum usus). Unauthorized Printing and Publication of Books is therefore forbidden—as an act Counterfeit and Piracy—on the ground of Right.
There seems, however, to be an impression that there is a sort of common Right to print and publish Books; but the slightest reflection must convince any one that this would be a great injustice. The reason of it is found simply in the fact that a Book, regarded from one point of view, is an external product of mechanical art (opus mechanicum), that can be imitated by any one who may be in rightful possession of a Copy; and it is therefore his by a Real Right. But from another point of view, a Book is not merely an external Thing, but is a Discourse of the Publisher to the public, and he is only entitled to do this publicly under the Mandate of the Author (præstatio operæ); and this constitutes a Personal Right. The error underlying the impression referred to, therefore, arises from an interchange and confusion of these two kinds of Right in relation to Books.
Confusion of Personal Right and Real Right.
The confusion of Personal Right with Real Right may be likewise shown by reference to a difference of view in connection with another Contract, falling under the head of Contracts of Hiring (B. II. 1), namely, the Contract of Lease (jus incolatus). The question is raised as to whether a Proprietor when he has sold a house or a piece of ground held on lease, before the expiry of the period of Lease, was bound to add the condition of the continuance of the Lease to the Contract of Purchase; or whether it should be held that ‘Purchase breaks Hire,’ of course under reservation of a period of warning determined by the nature of the subject in use.—In the former view, a house or farm would be regarded as having a Burden lying upon it, constituting a Real Right acquired in it by the Lessee; and this might well enough be carried out by a clause merely indorsing or ingrossing the Contract of Lease in the Deed of Sale. But as it would no longer then be a simple Lease, another Contract would properly be required to be conjoined, a matter which few Lessors would be disposed to grant. The proposition, then, that ‘Purchase breaks Hire’ holds in principle; for the full Right in a Thing as a Property, overbears all Personal Right which is inconsistent with it. But there remains a Right of Action to the Lessee, on the ground of a Personal Right for indemnification on account of any loss arising from breaking of the Contract. [See Supplementary Explanations, IV.]
EPISODICAL SECTION. The Ideal Acquisition of external Objects of the Will.
32.: The Nature and Modes of Ideal Acquisition.
I call that mode of Acquisition ideal which involves no Causality in time, and which is founded upon a mere Idea of pure reason. It is nevertheless actual, and not merely imaginary Acquisition; and it is not called real only because the Act of Acquisition is not empirical. This character of the Act arises from the peculiarity that the Person acquiring, acquires from another who either is not yet, and who can only be regarded as a possible Being, or who is just ceasing to be, or who no longer is. Hence such a mode of attaining to Possession is to be regarded as a mere practical Idea of Reason.
There are three Modes of Ideal Acquisition:—
I. Acquisition by Usucapion;
II. Acquisition by Inheritance or Succession;
III. Acquisition by Undying Merit (meritum immortale), or the Claim by Right to a good name at Death.
These three Modes of Acquisition can, as a matter of fact, only have effect in a public juridical state of existence, but they are not founded merely upon the Civil Constitution or upon arbitrary Statutes; they are already contained à priori in the conception of the state of Nature, and are thus necessarily conceivable prior to their empirical manifestation. The Laws regarding them in the Civil Constitution ought to be regulated by that rational Conception.
33.: I. Acquisition by Usucapion.
(Acquisitio per Usucapionem.)
I may acquire the Property of another merely by long possession and use of it (Usucapio). Such Property is not acquired, because I may legitimately presume that his Consent is given to this effect (per consensum præsumptum); nor because I can assume that as he does not oppose my Acquisition of it, he has relinquished or abandoned it as his (rem derelictam). But I acquire it thus, because even if there were any one actually raising a claim to this Property as its true Owner, I may exclude him on the ground of my long Possession of it, ignore his previous existence, and proceed as if he existed during the time of my Possession as a mere abstraction, although I may have been subsequently apprized of his reality as well as of his claim. This Mode of Acquisition is not quite correctly designated Acquisition by Prescription (per præscriptionem); for the exclusion of all other claimants is to be regarded as only the Consequence of the Usucapion; and the process of Acquisition must have gone before the Right of Exclusion. The rational possibility of such a Mode of Acquisition, has now to be proved.
Any one who does not exercise a continuous possessory activity (actus possessorius) in relation to a Thing as his, is regarded with good Right as one who does not at all exist as its Possessor. For he cannot complain of lesion so long as he does not qualify himself with a Title as its Possessor. And even if he should afterwards lay claim to the Thing when another has already taken possession of it, he only says he was once on a time Owner of it, but not that he is so still, or that his Possession has continued without interruption as a juridical fact. It can, therefore, only be by a juridical process of Possession, that has been maintained without interruption and is proveable by documentary fact, that any one can secure for himself what is his own after ceasing for a long time to make use of it.
For, suppose that the neglect to exercise this possessory activity had not the effect of enabling another to found upon his hitherto lawful, undisputed and bona fide Possession, an irrefragable Right to continue in its possession so that he may regard the thing that is thus in his Possession as acquired by him. Then no Acquisition would ever become peremptory and secured, but all Acquisition would only be provisory and temporary. This is evident on the ground that there are no historical Records available to carry the investigation of a Title back to the first Possessor and his act of Acquisition.—The Presumption upon which Acquisition by Usucapion is founded is, therefore, not merely its conformity to Right as allowed and just, but also the presumption of its being Right (præsumtio juris et de jure), and its being assumed to be in accordance with compulsory Laws (suppositio legalis). Any one who has neglected to embody his possessory Act in a documentary Title, has lost his Claim to the Right of being Possessor for the time; and the length of the period of his neglecting to do so—which need not necessarily be particularly defined—can be referred to only as establishing the certainty of this neglect. And it would contradict the Postulate of the Juridically Practical Reason to maintain that one hitherto unknown as a Possessor, and whose possessory activity has at least been interrupted, whether by or without fault of his own, could always at any time reacquire a Property; for this would be to make all Ownership uncertain (Dominia rerum incerta facere).
But if he is a member of the Commonwealth or Civil Union, the State may maintain his Possession for him vicariously, although it may be interrupted as private Possession; and in that case the actual Possessor will not be able to prove a Title of Acquisition even from a first occupation, nor to found upon a Title of Usucapion. But in the state of Nature Usucapion is universally a rightful ground of holding, not properly as a juridical mode of requiring a Thing, but as a ground for maintaining oneself in possession of it where there are no Juridical Acts. A release from juridical claims is commonly also called Acquisition. The Prescriptive Title of the older Possessor, therefore, belongs to the sphere of Natural Right (est juris naturæ). [See Supplementary Explanations, VI.]
34.: II. Acquisition by Inheritance.
(Acquisitio hæreditatis.)
Inheritance is constituted by the transfer (translatio) of the Property or goods of one who is dying to a Survivor, through the consent of the Will of both. The Acquisition of the Heir who takes the Estate (hæredis instituti) and the Relinquishment of the Testator who leaves it, being the acts that constitute the Exchange of the Mine and Thine, take place in the same moment of time—in articulo mortis—and just when the Testator ceases to be. There is therefore no special Act of Transfer (translatio) in the empirical sense; for that would involve two successive acts, by which the one would first divest himself of his Possession, and the other would thereupon enter into it. Inheritance as constituted by a simultaneous double Act is, therefore, an ideal Mode of Acquisition. Inheritance is inconceivable in the State of Nature without a Testamentary Disposition (dispositio ultimæ voluntatis); and the question arises as to whether this mode of Acquisition is to be regarded as a Contract of Succession, or a unilateral Act instituting an Heir by a Will (testamentum). The determination of this question depends on the further question, Whether and How, in the very same moment in which one individual ceases to be, there can be a transition of his Property to another Person. Hence the problem as to how a mode of Acquisition by Inheritance is possible, must be investigated independently of the various possible forms in which it is practically carried out, and which can have place only in a Commonwealth.
‘It is possible to acquire by being instituted or appointed Heir in a Testamentary Disposition.’ For the Testator Caius promises and declares in his last Will to Titius, who knows nothing of this Promise, to transfer to him his Estate in case of death, but thus continuing as long as he lives sole Owner of it. Now by a mere unilateral act of Will, nothing can in fact be transmitted to another person, as in addition to the Promise of the one party there is required Acceptance (acceptatio) on the part of the other, and a simultaneous bilateral act of Will (voluntas simultanea) which, however, is here awanting. So long as Caius lives, Titius cannot expressly accept in order to enter on Acquisition, because Caius has only promised in case of death; otherwise the Property would be for a moment at least in common possession, which is not the Will of the Testator.—However, Titius acquires tacitly a special Right to the Inheritance as a Real Right. This is constituted by the sole and exclusive Right to accept the Estate (jus in re jacente), which is therefore called at that point of time a hæreditas jacens. Now as every man—because he must always gain and never lose by it—necessarily, although tacitly, accepts such a Right, and as Titius after the death of Caius is in this position, he may acquire the succession as Heir by Acceptance of the Promise. And the Estate is not in the meantime entirely without an Owner (res nullius), but is only in abeyance or vacant (vacua); because he has exclusively the Right of Choice as to whether he will actually make the Estate bequeathed to him, his own or not.
Hence Testaments are valid according to mere Natural Right (sunt juris naturæ). This assertion, however, is to be understood in the sense that they are capable and worthy of being introduced and sanctioned in the Civil state, whenever it is instituted. For it is only the Common Will in the Civil state that maintains the possession of the Inheritance or Succession, while it hangs between Acceptance or Rejection and specially belongs to no particular individual. [See Supplementary Explanations, VII.]
35.: III. The continuing Right of a good Name after Death.
(Bona fama Defuncti.)
It would be absurd to think that a dead Person could possess anything after his death, when he no longer exists in the eye of the Law, if the matter in question were a mere Thing. But a good Name is a congenital and external, although merely ideal possession, which attaches inseparably to the individual as a Person. Now we can and must abstract here from all consideration as to whether the Persons cease to be after death or still continue as such to exist; because in considering their juridical relation to others, we regard Persons merely according to their humanity and as rational Beings (homo noumenon). Hence any attempt to bring the Reputation or good Name of a Person into evil and false repute after death, is always questionable, even although a well-founded charge may be allowed—for to that extent the brocard ‘De mortuis nil nisi bene’ is wrong. Yet to spread charges against one who is absent and cannot defend himself, shows at least a want of magnanimity.
By a blameless life and a death that worthily ends it, it is admitted that a man may acquire a (negatively) good reputation constituting something that is his own, even when he no longer exists in the world of sense as a visible Person (homo phænomenon). It is further held that his Survivors and Successors—whether relatives or strangers—are entitled to defend his good Name as a matter of Right, on the ground that unproved accusations subject them all to the danger of similar treatment after death. Now that a Man when dead can yet acquire such a Right is a peculiar and, nevertheless, an undeniable manifestation in fact, of the à priori law-giving Reason thus extending its Law of Command or Prohibition beyond the limits of the present life. If some one then spreads a charge regarding a dead person that would have dishonoured him when living, or even made him despicable, any one who can adduce a proof that this accusation is intentionally false and untrue, may publicly declare him who thus brings the dead person into ill repute to be a Calumniator, and affix dishonour to him in turn. This would not be allowable unless it were legitimate to assume that the dead person was injured by the accusation, although he is dead, and that a certain just satisfaction was done to him by an Apology, although he no longer sensibly exists. A Title to act the part of the Vindicator of the dead person does not require to be established; for every one necessarily claims this of himself, not merely as a Duty of Virtue regarded ethically, but as a Right belonging to him in virtue of his Humanity. Nor does the Vindicator require to show any special personal damage, accruing to him as a friend or relative, from a stain on the character of the Deceased, to justify him in proceeding to censure it. That such a form of ideal Acquisition, and even a Right in an individual after death against survivors, is thus actually founded, cannot, therefore, be disputed, although the possibility of such a Right is not capable of logical Deduction.
PRIVATE RIGHT.