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ACQUIRED RIGHTS

Chapter 2

293. In connatural rights, the fact containing the title to the right is given by nature without any human intervention. In acquired rights the fact is posited by the human being and called an act of acquisition.

294. The fact given by nature as the first of all connatural rights (pure jural freedom) is the existence of the person. We have seen that person is the very essence of right.

295. The fact given by nature for the second of innate rights (connatural ownership) is the connection between the supreme power (person) and the different powers and parts of the human being. This connection is given by nature itself.(90)

296. What facts then do we posit to procure rights for ourselves, that is, rights which in their origin receive nothing from nature? To answer this question accurately we must consider both what is experienced and what is done by a human being in so far as all such actions influence the complex of his rights relative to jural freedom and ownership, the two great categories to which we have reduced rights. We begin with the rights of freedom.

297. The human being undergoes experiences and posits actions from the moment of birth. He finds around him beings devoid of intelligence, and intelligent beings like himself. They are all in a given state or position, which is not determined by his nature or will, but by causes foreign and antecedent to him. Furthermore, those devoid of intelligence continually change, while the beings similar to him change their position, state and experience, and act just as he himself does. All this notably alters the complex of his rights. Other rights, which we call acquired rights, also accrue to him.

298. But is every change and modification to which the human jural state is subject, an acquisition? Is it a case of other rights always being added to connatural rights without a diminution in the number of connatural rights? This question must be examined; let us consider it relative to freedom.

299. If we are talking about pure, simply personal freedom, this freedom cannot by its very nature be increased or diminished. It does not have quantity; it is a quality, an essence; it is jural, essential freedom itself.(91)

300. But if we are talking about the sphere in which personal freedom can act, this sphere can certainly be extended and diminished. Indeed, its extension and diminution can take place simultaneously.

301. The position of inanimate things does not depend on the nature of human beings. At the moment of our birth this position is fixed. Sometimes it can help our development; at other times it retards development. At different times it offers us wider or more limited scope for exercising our freedom; many accidental things succeed one another, independently of us, helping or hindering our actions in varying degrees.

302. But leaving aside the question about greater or lesser development, we can affirm that there is at the same time, as I said, an increase or restriction in the sphere of human freedom. The increase comes from the actions with which we exercise our freedom; these actions increase our sphere of freedom. The restriction originates from the actions with which those around us exercise their own freedom their actions limit and restrict our freedom.
It is clear that by exercising our freedom we both develop our powers and create external ownership for ourselves. This ownership is then pervaded by freedom, because, as we said, ownership is only a kind of extra instrument acquired by persons, in order to operate according to their ends.
Conversely, another's ownership, like all rights in general acquired by others, restricts more and more our sphere of freedom, which was already limited by the mere fact of our co-existence on the earth with our fellow human beings.

303. The increase of the sphere in which freedom operates, an increase resulting from the acquisition of external ownership, is inherent to this ownership and does not form something different from it. I will speak about this in the following article, where I will deal with ownership.

304. The only acquired rights to be classified amongst rights of freedom are those which come into being through the abilities and skills we learn with the use of our powers.
Our activity, extended by means of these habits added to our native powers, is rendered capable of greater activity. All other human beings must respect activity which has increased in this way. Its exercise therefore, when it does not harm the rights of others, itself acquires the characteristic of a right.

305. We must also consider the contemporary limitation of our liberty consequent on the activity of others. It has two causes.
We have already spoken about the first: acquired rights and the connatural rights of others diminish the sphere of our freedom because our freedom can no longer take possession of the things they possess, nor can we perform actions which disturb or obstruct the rights they have taken possession of.

306. The second cause arises from the right of defence and security. This right reveals itself in all human beings as soon as it is clear that either through malice, ignorance or incompetence others are going to act without regard for their rights, which they put at risk.

307. As I have said, this can happen from malice, when a person will not respect the sanctity of another's rights; or from ignorance, when someone makes no effort to know another's rights or, if an effort has been made, either does not know them well or how far he may go without offending them. Finally, I said it sometimes happens from incompetence in the use of our faculties. If we exercised our faculties competently, the quantity of our exercise could be the same, but if the exercise is incompetent, inexpert or imprudent, it conflicts with others' rights especially when it could easily avoid them.

308. Under these circumstances, not knowing how to use our freedom competently, we cannot use it to the full extent to which we would otherwise have a right.

309. If because of malice some will not make good use of their freedom, or, because of ignorance and incompetence, cannot make use of it, people will naturally be more on their guard, taking further precautions and requiring more guarantees.

310. This feeling of the need of defence explains the varying rigour and strictness of State laws. It also explains different forms of government or political constitutions of varying benignity, which allow their citizens various degrees of exercise of freedom.

311. If therefore freedom at the level of nature is `the faculty to do all that is lawful, freedom in civil society can be defined with greater precision as `the faculty to do all that is lawful' in itself except what is forbidden by law.' (92)

312. We have said that the common characteristic of all ownership, whether connatural or acquired, consists in the connection of a thing with the personal principle, so that the thing can be used as an instrument by the person for his own ends.

313. The act of acquisition therefore is the act by which a person joins to himself things different from himself in order to use them for his own ends.
But how is this union possible and really brought about?

314. The act of acquisition of external ownership can be found only in morally free or lawful actions.

315. Morally free actions are of two kinds: some leave no observable result, others leave a result in which the action itself seems to continue habitually, as it were, in us. For example, I want to rest under an oak. If someone else has taken the place I want, the action is morally forbidden me. I cannot do it without harming another, because I cannot take the place without sending the other away. If the place is empty, I can occupy it; my action is morally free. However my action leaves no result if, after resting under the tree, I go on my way without further ado.
On the other hand, if I build a house on unoccupied land as my family home, I am still doing something morally free. Without harming anyone else I am making use of an unoccupied area, intending my family to live there . But the action of building the house, together with my intention of living there permanently, leaves a result, because it extends into the future. An action of this kind, we can say, will never completely cease; it will continue habitually and virtually in me, even when my positive act of will ceases.

316. The result of the final act of building is a moral-physical connection acquired with me by the house, or better by me with the house. The house I have built with the aim in view belongs to me, is connected with my being and becomes part of my feeling, part of myself.

317. This is so true that if the house were burnt down, I would find it more painful than if one of my fingers had been cut off or I had been physically assaulted. I would consider that a good had been taken from me, from my very person; a good, whose loss would be extremely upsetting. All this clearly indicates that the house was joined to me in my feeling, forming a single thing with me, as my finger is joined to my person, although it is not my person.

318. It would be just as painful, and perhaps worse, to have another man force me out of the house so that he could live there. Clearly, his action harms what is proper to me, cutting me off from a part of myself. He cannot morally perpetrate such an action that causes me pain. Here precisely is jural duty, the fifth of the characteristics of right mentioned above,(93) and the certain sign of its existence.

319. My occupation of the vacant spot, the construction of the house and my intention to reside there have all morally prohibited everybody else from an action which earlier had been free for them. And the prohibition endures until I abandon both the house and the place. At the same time I have acquired a right to both.

320. My rest under the oak, therefore, followed by my abandoning the place without any decision to reserve it for my use in the future, was a lawful action which left no effective consequence morally prohibiting the actions of another person. But my decision to live in the house I had built brought with it a consequence morally preventing the use of the place by others, so that I would be hurt if another used it. On the other hand, before my decision, anyone could have used it without upsetting me in any way.

321. We have then two kinds of actions: the simple use of something and a decision about its continual use. These are two natural human acts, and the primitive sources of external ownership. The first, as the simple use of something, is short-lived,(94) while the second endures. The second requires a greater act of reflection than the first; to carry it out, we need to have reflected on the future use of the thing. To do the first act, however, we need to know only its present use. It is probable therefore that people performed the first act before passing to the second.(95)

322. Analysis of the act of acquisition by which we became owners of the land and of the house built upon it reveals four successive levels, each of which is a right. These four successive rights are present every time we acquire something external:

323. 1. The first level and right, origin of the other three, is innate. This right, which pertains to relative freedom, is the right to lawful actions not encroaching on another's ownership.

324. 2. When we exercise the first right, we produce the second level, the action itself. Every time the action is posited in the actuality of its being, something real is done which adheres to, and is part of us. The thing we do is also our right as long as it endures in act. This right pertains to ownership.

325. The first of these rights can be called the right of relative freedom of action; the second, the right of ownership over action.

326. 3. If the action is such that it can join an external object to us, we also have, granted our right to the action, a right to join the object to ourselves and make it our own.

327. 4. Finally, when the action has been posited in reality, we have joined the thing to ourselves and at the same time increased our power to act. The union gives us the faculty or right to do all the acts contained in the complete, continuous use of the thing, a faculty we did not previously possess.

328. The first of the last two rights can be called the right of relative freedom to the thing; the second, the right of ownership over the thing.

329. It seems to me that this deduction of the right of ownership over external things is very simple, and I am surprised that it escaped the minds of many writers on rational Right.
However it will receive greater light if we compare it with the principal opinions put forward so far concerning the origin of the right under discussion.

330. The deduction of the right of ownership over external things, when considered in the state of nature, seemed to certain authors to present insuperable difficulties. They joined those who completely denied its possibility until the institution of civil society.

331. Such a system is not only gratuitous, but contradictory.

332. If ownership of external things could not exist before the institution of civil society, how would a society's laws have attained sufficient authority to establish as a right that which nature had not made a right?

333. If ownership did not exist and could not exist before civil society, the founders themselves, before establishing civil society, did not own anything. How therefore could they have made laws without an arbitrary decision about something to which they themselves had no right?

334. It may be objected that the law of ownership was established by the consent of all in the civil society.

335. First, it is impossible to explain how present consent could bind future consent, especially if the consent appears merely arbitrary and without any necessity in nature.

336. Second, we are talking about either an explicit or a tacit, universal consent.
Explicit consent given by all at the beginning of civil societies is an empty hypothesis and a vain pipe-dream.(96)

337. Tacit and arbitrary consent, capable of creating agreed rights, is also entirely imaginary and false. In order to consent tacitly and validly to a particular law or custom which needs the support of our consent, we must first have substantial knowledge of the whole extent of the law or custom. Second, we must be able to withhold consent, even if we do not wish to do so.
A large section of the human race has never reflected on the extent of the law of ownership, and has not made any internal judgment on its utility. People have simply adapted to the fact and submitted to circumstances as they found them.

338. Moreover, let us suppose that ownership of external things has no justice of its own and that the justice we believe it has originates solely in the arbitrary consent given it by all individuals from one generation to the next. It is clear that they would give their consent only on condition that ownership was divided equally among them all. It would be absurd to think that the poor would consent to the rich retaining their riches if the latter's ownership depended on the arbitrary consent of the poor.(97)

339. Again, in this system where the justice of ownership depends not on ownership itself, but on the common consent of those who judge it useful for themselves, theft would be a protest against this so-called unanimous consent. And theft of this kind would be more than sufficient to destroy a system of ownership founded on the unanimous consent of all in pursuit of their own utility.

340. Finally, we must not confuse the question, `Does the establishment of ownership require a tacit consent?' with `Does the establishment of ownership derive its authority from civil laws?'

341. These are entirely different questions although very often intermingled. This becomes clear when we consider that human beings could give their tacit consent in the absence of established civil regimes; they could consent tacitly or expressly among themselves in the state of nature. Consequently, it could reasonably be maintained that for the establishment of ownership tacit consent, but not necessarily the authority of civil government, is needed.

342. I answer this as follows.
If we are talking about arbitrary consent, the supposed universal unanimity of consent is absurd, as I have shown.
If we are talking about consent originating in a feeling of justice and reason, ownership is indeed admitted and certainly consented to by all, because it is just - but its justice does not come from unanimous admission and consent.
I acknowledge that there is tacit consent by all human beings to the fact of ownership. But this consent is guided by a feeling of justice, not simply by a consideration of utility. Hence we are obliged to give this kind of consent in the way we are obliged to consent to all just natural laws. If we failed to do so, we would be reproved by synderesis.
This kind of consent presupposes, but does not explain the right of ownership. The consent itself needs explanation: why, for example, does the common sense of humanity see in ownership a just law; what is this justice?

343. I have tried to derive the justice of ownership from the principle of `not doing harm to anyone'. We harm others every time we touch, damage or remove what is joined to them and to their feeling of themselves by nature and by their own natural acts. We have seen that human nature is so made that it can in fact join to itself things which are different from person and from human nature itself. This fact becomes a right immediately the duty of not doing harm is established, because by destroying the fact we harm our fellow human beings, causing them trouble and distress.(98)

344. Thinkers who attribute the origin of the right of external ownership to civil laws are themselves divided in opinion when giving their reasons.

345. I. Some authors attribute the establishment of external ownership to civil laws because, they say, in the state of nature everybody has a right to everything and consequently no one can peacefully retain anything

346. This is Hobbes' system. - The so-called right of everybody to everything results from an illusion dominating the mind of its author. According to Hobbes, everything in the state of nature is considered unoccupied and free. But it is clear that everybody can lawfully take possession of things that are free and unoccupied. Therefore, in that state, everybody has the right to everything.

347. We reply: the right to take possession of things causes no difficulty whatsoever, provided possession has not already been taken.(99) Something already occupied and appropriated cannot be occupied or appropriated by another. To do so would be to harm the other, and therefore to act immorally.
In order to avoid this ambiguity, I said that the right to occupancy is relative, not absolute. It is conditioned and endures only as long as things lack an owner. Before their appropriation, things must not be thought of as belonging to everybody; in fact they belong to no one. After appropriation they belong to the one who has first appropriated them. Thus there is never a time when they belong to all.(100)

348. II. Others attribute the establishment of external ownership to civil laws because, they argue, the sanction of ownership is found solely in a civilly constituted society.

349. Bentham holds this opinion. He claims that there cannot be a right without physical force to protect it, that is, coercion sufficient to make it enforceable. But we have seen that right is a moral, not a physical power; it is a freedom to act without injury to our fellow human beings.(101)

350. He says, `Even the most uncivilised human can possess something, but this is simply direct, uncertain possession which lasts only as long as it goes undisputed by any other person, or for as long as the holder can defend it. But a right supposes both present and future guarantee and enjoyment.' (102) These words contain a further error: they presuppose as essential to the constitution of right that right extends to the future, but they do not distinguish the two categories of rights we spoke about earlier: rights to actions, which do not extend to the future, and rights to things (cf. 325, 328), that are acquired by actions in which we had a right, and extend to the future.

351. An apparently more acceptable explanation for those who do not recognise rights of ownership outside civil society, is the condition of reciprocity. This condition seems to be necessary for constituting jural duty, and can be described as follows.

352. Outside the civil state no sufficient guarantee for the rights of individuals can be found. When this guarantee is lacking, infringements of rights become very frequent. But our duty to respect others' rights binds us only when others generally respect ours, that is, our duty is conditioned by reciprocity. Therefore, outside the state of civil society, jural duty, the fifth constitutive element of rights, disappears;(103) rights are not fully constituted in these conditions.

353. The argument seems conclusive. But if we examine it carefully, we will find it lacks solidity.

354. The proposition: `It is impossible to find a sufficient guarantee of rights outside the civil state', is too universal and cannot be accepted. Early human beings lived for a long time in a state of domestic society. In this state, and granted the favourable circumstance in which they lived, they easily found sufficient defence of their rights in a common, reciprocal feeling of uprightness, in the reciprocal interests which often impelled them to form alliances,(104) and in the adequate strength of the family for maintaining itself in the midst of other families. This was the state of the patriarchs, and is still the state of many nomadic tribes on the earth.

355. Reciprocity, as necessary to give binding force to the duty of respecting others' ownership, is another case in which the principle is extended too far and causes interminable sophistry. It must be kept within just limits and be deduced from the principle of justice which in the state of nature authorises human beings `to redress offences against them, to be indemnified for damage and, if necessary, to protect themselves by strong measures against those whose will to do evil has shown itself, and been proved habitual'.

356. When the principle of reciprocity is limited in this way, we can truthfully say that, provided we ourselves were at peace, we would not be obliged to respect others' rights of ownership if those amongst whom we lived lacked all feeling of justice and were always intent on doing us harm. We would be at war relative to such people, and therefore could defend ourselves, seek redress and indemnity, and claim guarantees.

357. Nevertheless, if we were strong enough to require and obtain all this, we could not afterwards harm those people in the least way, because we would still have duties to them. All this shows that rights or jural duties exist even in these conditions.

358. But the conditions are hypothetical; they never were universal, and never will be. Human beings, no matter how evil, cannot lose entirely all feeling of what is upright and just; in fact they act justly on a great number of occasions. And we must act justly towards them, particularly in the case of actions which give us no cause for encroaching on the sphere of their ownership. Furthermore, no matter how foolish we think these people are, they are not so foolish as to be unaware of what is advantageous to themselves in reciprocal respect for ownership and rights.

Hence, throughout the whole human race, and even amongst human beings not bound into civil associations, a common exchange of respect, regard and feelings must always be present. This is particularly so when we consider that we are not born into isolation but into the warmth of a domestic society, where so many affections arise and increase with us. All this affection, esteem and natural, reciprocal respect, which never ceases in the mass of human beings, is foundation enough for the duty (exercised at least to a corresponding level) to honour another's ownership.

359. The principle of reciprocity, therefore, as an absolute condition of jural duty, does not exclude in any way the existence of rights and duties in any period prior to civil societies.(105)

360. Nearly all writers who accept ownership as a right pertaining to the state of nature, agree that its origin is occupancy. They differ however in their explanation of the moral force necessary for occupancy, in order that occupancy may be the mode of acquiring the right.

361. A). Grotius,(106) Pufendorf and De Felice had recourse to the tacit and implicit assent of all human beings, which we have already discussed.(107)

362. But what is the origin of this assent? How do all the people of a nation, in the absence of any assembly or discussion or even knowledge of each other, always agree fully in judging that ownership must be respected? Cicero's excellent opinion is relevant here: `The consent of the people must in every thing be considered a law of nature'(108) If all peoples agree that the first occupier has the right to the thing occupied, they recognise in occupancy a just title to that right. But, to repeat, their consent is purely an act of recognition, not of creation.

363. B). Barbeyrac, Titius and Locke deny this implicit consent.

364. To deny it however is to reject a very obvious fact.

365. These authors give occupancy moral force by positing a principle of corporal labour and substituting this principle for the common consent of the people. Because a person's labour on a thing makes the thing the work of that person's hands, the thing therefore is the person's property.

366. This is a contrived solution. First of all, not all labour on a thing makes the thing the property of the labourer. But why do other labours on the thing not render that thing a person's own, while the labour of occupancy does? This is the heart of the problem, and still remains unanswered despite the opinion above.

367. Second, even if we grant that labour renders a thing a labourer's own, we are justified in requesting an explanation of the supposition, with all due respect to these authors. Does labour in fact have the power to appropriate to an individual the things he is working on? What is this appropriation, and what is its moral nature? How do others come to have the duty of respecting the appropriation? All these questions are concerned precisely with the origin of ownership. Our authors ignore this question and content themselves with only a superficial answer, which simply veils the problem by diverting attention from it. It certainly offers no solution.

368. Accepting labour as the universal source of the right of ownership means failing to see that the essence of right is moral, and that its moral essence is found solely in a corresponding jural duty. The determination of the jural duty is therefore the explanation of right. We began from the very obvious fact that `the human being clearly has a moral duty not to harm, injure or molest another.' Having established this very simple principle, we investigated the human person and found the extraordinary but general and abiding fact that `while some things are naturally joined to the human person, others are joined by his own act (a moral-physcial act) and cannot be taken from him against his will without causing pain.' If we now apply the ethical principle to this psychological fact, the direct consequence is: `No one must separate from the human person that which he has lawfully attached to himself.' In other words, `Everybody must respect others' ownership, which we have defined as `that which is united by a moral-physical bond to the human person'.(109)

369. We can easily discern the weakness of these teachings about the origin and foundation of the right of external ownership. Nothing is more familiar to us than our needs, nothing more familiar than what we frequently discuss and common sense least doubts.
Let us now see whether the German philosophers succeeded better in unravelling this important problem of rational Right.

370. C). A number of these authors accepted Kant's principle that `everyone has the right to do anything which does not prevent others from living in the same way.' In this principle (which I have discussed above)(110) they thought they could find the intrinsic reason for the right of external ownership.

371. However I must acknowledge that some of these writers had expressly indicated that the ownership of a thing consists in some kind of connection with personship. The Italian, Baroli, makes the following astute and important observation: `Consequently the acquisition of a right necessarily requires a fact, by means of which an object is so joined to the personship of a particular subject that it can be considered (partly or entirely) within his sphere of freedom.' (111)

372. Much earlier, some theologians had said that ownership was rooted in a kind of connection.(112) However no one had explicitly stated that the connection must be with personship. Kant has the merit of focusing his thoughts on the dignity of person, and of finding appropriate expressions for focusing the thoughts of others on the matter. Nevertheless, he was unable to give a truly satisfying definition of person; in fact he did not try.

373. So far everything would be quite acceptable, although the right of external ownership has not yet been explained. In order to establish the foundation of this right, its moral necessity must be shown. How then do these authors we are discussing explain and demonstrate the moral necessity of the connection between things and person which constitutes ownership?

374. To begin with, they do not examine and analyse the connection as an anthropological fact an omission which itself is of great importance in theorists dealing with the science of Right. They are satisfied with having summarily indicated the connection as known and incontrovertible, and so pass on to their jural law. Zeiller says:

375. This affirmation is gratuitous. How can everybody else's activity be compatible with the activity of the person who has already taken possession of all the things the others could have taken? The first possessor's activity has in fact nullified the activity of all the others. Hence the real limitation of freedom is not equal for everyone; they cannot co-exist in the same way.

376. Let us suppose that the first person or his family, or a society he has formed (for example, a nation that takes possession of a whole country), had not occupied everything but only a major part of what is available. This alone is sufficient to make the limitation of the activity unequal. Everything that the first party has occupied limits the real activity of the others, while the others, who have not yet taken possession of anything, do not in any way limit his activity; they are not therefore truly on a par with him. They could invoke the Kantian principle and say to those who had preceded them in taking possession of the things: `According to the law of rational Right we must also limit our freedom in such a way that an equal portion remains for all. But this principle cannot be applied unless all external things are divided equally among us. If anyone has an advantage over another, we will not be able to co-exist in an equal way. The freedom of some will have to be sacrificed for the freedom of others more fortunate who alone would fully maintain their freedom.' Clearly, the argument would be unanswerable if this sole principle were to be the law by which the disagreement is settled.

377. Zeiller says that `such a procedure would almost entirely remove the use of things from human will and right, which is contrary to the law of Right.' (114)

378. First of all, it is not true that the partition we are talking about would almost entirely remove the use of things from human will and right. The partition would in fact make the use equal for all.

379. In the second place, this kind of partition would in no way conflict with the Kantian law of Right which Zeiller has accepted. It would only be a rigorous and legitimate application of it. The law simply states that `another's freedom must not be limited for one's own advantage. Others must be left a part equal to that which is kept for oneself,' which would indeed happen in the case of the equal division of external goods.

380. But have I misunderstood the jural law I cited? Kant, its author, is precisely the man who applies it to deny a stable, permanent ownership in the state of nature. It is Kant who finds that the only way to deduce the right of external ownership is recourse to a reciprocal agreement. At the same time he states that the agreement is obligatory for all, not arbitrary. But if there is a moral obligation to determine private ownership by agreement, it is clear that such an agreement could only be the recognition of a right in nature, that is, of something morally necessary, not indifferent. There can be no duty to agree about things which do not have within themselves an intrinsic moral necessity. It is also clear that any agreement which determines the ownership of each individual, would need to begin from a principle of justice, for example, from the principle unicuique suum [to each his own]. The law of ownership would be presupposed by means of this principle, and the agreement under discussion would deal solely with the way in which the ownership indicated by the right is put into practice.

381. The jural principle of the German philosophers, therefore, is in itself powerless to produce the right of external ownership.

(90) There are some rights whose bond is effected by nature although they arise from a human act, for example, marital rights. But I will speak about this special class of acquired rights later.

(91) Nevertheless human freedom can be raised to a higher degree of excellence by a supernatural, divine action. This is one of the sublime truths contained in the Christian system, the religion of civilised peoples. I will deal with it in Supernatural Anthropology. We should not be surprised therefore that a new kind of freedom given to human beings can modify the teaching on right, elevate it and constitute a new right immensely different from, and superior to right in nature.

(92) Justinian's Institutes define civil freedom as `the faculty for everyone to do as they please unless prohibited by law' (De jure personarum).

(93) Cf. ER, 301-303.

(94) Here again we have an example of jural duty in another, although it lasts only as long as the action lasts. If, while resting, I am forced out of an otherwise unoccupied place, the aggressor causes me harm and acts immor-ally. He injures my right, which is posited in being by my action. The action is momentary, of course, but is mine, however short its duration.

(95) Very probably, when people were few on the earth and everything was available in abundance, no one would have thought of reserving the use of things exclusively for himself. Instead each would have been satisfied to use for a short while what first came to hand. Virgil speaks of this in the following verses:

This is the way we must understand the poets of the golden age, when there was no fixed possession of land. - Cf. Hesiodus, Opere e Giorni.

(96) In saying this, I do not deny that human beings have often divided land among themselves, either by private agreements or by some kind of agrarian laws. But these procedures regulate ownership, they do not create it.

(97) Even if we supposed per absurdum that children could be bound by the arbitrary agreements of their fathers, it would be quite unlikely that the fathers would readily consent to an agreement exposing some members of their family to the danger of extreme poverty, while other members were able to enjoy great riches. Great human inequalities like these are indeed the work of nature, but cannot be the work of a valid but arbitrary human agreement.

(98) Cicero wisely said that natural love for our fellow human beings is the foundation of right: `These things arise because we are inclined by nature to love human beings, WHICH IS THE FOUNDATION OF RIGHT' (De leg., 1, 15).

(99) Cf. Martini, De Leg. Nat. Positiones, etc., c. 13.

(100) Cicero's statement, `Nothing is by nature private' (De Off., 1, 7) seems to contain an ambiguity. It could lead us to believe that natural public ownership existed. But such an ownership is a pipe-dream. We can conceive the public as a proprietor only on condition that they are constituted a collective person, and that things are appropriated under the same conditions as the acts and methods of acquisition of private persons. Thus the ownership of a public body is also private.

(101) On this point, the confusion and contradiction in ideas is at its worst in Romagnosi. In some places he does admit the common sense distinction between fact and right; he says, for example, `To have a reason for doing something is not the same as being able to do it in practice' (Assunto I, etc, §7). In other places he abolishes the distinction by confusing right and fact. For example, he maintains that `rights and duties are not really different from effective human power; in themselves they are simply external or internal human force acting in a given way' (ibid., §3 and 6). He then explains the given way as a mode of operation of human force, regulated by reason in such a way that reason directs the operator to obtain maximum satisfaction. But if rights consisted in force, only the strong, not the weak, would have them; only the strong would have the force on the one hand, and reason on the other to guide the force to maximum satisfaction for themselves. I too have said that right is an activity, or if preferable, a force, but it is activity protected by the moral law. Physical activity, even when directed by reason towards maximum satisfaction, can certainly constitute the material part of right, but never the formal. This distinction easily frees us from the sophistry by which Romagnosi required the existence of civil society not only as a guarantee of right but also for its existence.

(102) Traité des sophismes politiques. - Examen critique de la déclaration des droits de l'homme, etc.

(103) ER, 301-303.

(104) For example, the treaty between Isaac, Abimelech, Ochozath [Ahuzzath] and Phicol (Gen 26), and the treaty that Abraham had previously made with these leaders (Gen. 21).

(105) Blackstone attributes the establishment of the right of ownership to civil laws without giving a satisfactory reason for his opinion (cf. Commentaires sur les lois anglaises, bk. 2, c. 1). He is not the only writer to adhere gratuitously to a system because of the difficulties encountered in all other systems.

(106) `We must have due regard for the intention of those who first introduced individual dominion. We must accept that they intended to depart as little as possible from fairness' (De Jure B et P., bk. 2, c. 2, §6). - Here we see what effect the habit of living under positive law has on the human mind: the natural law is easily forgotten, and authority substituted for reason. And when there is no authority, it is invented. Grotius argues that, although we have no trace at all of the will of our ancestors who instituted ownership, we can guess at it by mentally conceiving what is fairer or what harmonises more closely with natural fairness. He has to have recourse to fairness in order to interpret the will of our ancestors who established ownership. But would it not be easier to have recourse to fairness in order to know what we ourselves must maintain about ownership? Even if the first proprietors had been unjust, is it any less true that we must pursue fairness? What role then does their will play if we of ourselves know what is just and fair?

(107) Gribner explains the right of ownership as an special agreement between neighbouring families.

(108) Tuscul., 1.

(109) It may be objected that, if human beings possess stable and movable good things which they restrict to their own private use, they harm all other human beings by preventing them from using things they previously had power to use. But if an action done in accordance with the principles you lay down harms another person, it is already forbidden and unlawful. Possession therefore cannot give a right to the exclusive use of anything, because possession causes harm to another. - The objection has already been fully answered, but I will say a few words more about it here. I do not deny that possession of external things could indirectly cause harm (if you wish to call it that) to human beings by reducing the amount of good things they could use and by forbidding previously free actions. However, the harm does not consist in taking from them what they have, but in preventing their having what they could acquire. We are talking about potential, not actual harm. In the second place, potential harm cannot always be avoided, because the very use we make of a thing prevents another from using it. If we intended to avoid all potential harm, we would have to forbid the use of anything at all and thus cause real, universal harm. Furthermore, the objector confuses harm done to a person with injury to right, and sees a lesion of right wherever there is harm. I answer: not all harm is an injury and lesion of right. Lesion of right is an injury to person, but person is not injured by disposing of something that has as yet no real connection with it. This is demonstrated by the fact that a person shows no natural resentment if another takes possession of something which the person has not joined to himself. No natural pain is caused, and the harm forbidden by law is not experienced.

(110) ER, 342.

(111) Diritto naturale privato, §95. - I think it would have been more accurate to say `within his sphere of ownership'.

(112) For example, Giovanni de Lugo had excellently stated: `Right, relative to commutative justice is defined as a certain moral choice, by which a particular human being is morally preferred to others in the use of some thing because of a special CONNECTION between the thing and him. For example, a wild animal has a special connection with its captor. But if the owner gives it to someone else, its special connection is now with this second person in so far as the donor has morally transferred to another the connection which he had through his capture of it' (De Just, et Jure, bk. 1, Disput. 1, Sect. 2, 5. Cf. the same author, De Incarnat., Disp. 3, Sect. 3, n. 42.

(113) Il Diritto privato naturale, §59.

(114) Ibid., §62.

Chapter 3