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ACQUIRED RIGHTS

Chapter 3

382. We shall continue, therefore, to investigate the nature of the juncture between things and persons that constitutes the right of ownership.

383. This juncture must be threefold: physical, intellectual and moral.

384. If we possessed only one or two of the three manners of the juncture of anything to person, ownership over the thing would not be present. We would at least lack that first ownership which is acquired by occupancy of things which are free. However, once the thing has been acquired, that is, as soon as ownership has been formed through occupancy, the physical juncture is no longer necessary in the way it was when the origin of ownership was in question. But we shall explain this more clearly later in the book.

385. The physical juncture arises from two things:

1. From a real relationship of utility between something and a person (this is the third of the constitutive elements of right that we have indicated).(115)
2. From taking possession of the thing. This occurs when the thing is taken and retained with one's own real forces.

386. The intellectual juncture also arises from two things:

1. From an act of intelligence with which the thing is mentally conceived and conceived as good for oneself. This gives rise to the thought of taking possession and making use of the thing.
2. From another intellective act with which we judge that the thing, when known as free, may lawfully be taken possession of without our injuring the ownership of anybody else.

387. Finally, the moral juncture arises from two things:

1. From the act of will with which the person intends to take stable possession of the thing, and retain it exclusively for his own use.
2. And from the jural quality inherent to this act in which the formal appropriation of the thing consists. This jural quality is established through the thing's becoming part of the feeling of myself in such a way that touching it means touching me,(116) as we can see from the pain we feel and the injury we think we receive when it is touched. Thus jural duty arises in everyone else of not causing me pain by placing an obstacle to the full use of anything joined to me in this way.

388. The chronological order of these elements of the jural juncture which constitute external ownership is as follows:

1. the utility of the thing in providing some benefit;
2. an intellectual act conceiving the thing and conceiving it as advantageous;
3. an intellectual act judging the thing as free and jurally capable of occupancy;
4. an act of will which desires to take possession of the thing with jural occupancy (hence the jural quality of the act);
5. another act of will which moves real forces for the purpose of taking possession for the sake of occupancy.

I will comment briefly on each of these elements.

389. 1. The suitability of the thing in providing some benefit. If the thing were altogether useless to us, we could not acquire a right to it as a result of what has been said, nor prevent others from taking it if it were useful to them.

390. It follows that if the thing remains suitable for use by others outside the use we make of it, we cannot prevent such use; blocking its use by others does not increase in any way the advantage that we can draw from it. Hence, several authors have observed that an object has to be exhaustible by the use a person makes of it if it is to become the exclusive property of that person. As Zeiller explains: `It is of such a nature that an individual cannot use it perfectly for his own ends unless he also excludes all others from making use of it.' (117)

391. This explains why intellectual and moral good, such as truth and God, never become the exclusive property of any individual possessing them.

392. This is also a new reason (to be added to that given in 271, 272) demonstrating that all atmospheric air, all light and all spaces cannot become the exclusive property of a single person or of a particular society.(118)

393. The same principle also provides that when a person uses something, or takes possession of it, he must do so in such a way (as far as he is able) that without diminishing the advantage he can obtain from it for himself he does not prevent the least possible good to others or place a narrower limit to their freedom to gain possession.

394. 2 and 3. Acts of understanding by which we perceive the thing and judge it suitable to be possessed jurally. These acts, considered in relationship with those of the will, render right something moral and jural. They show that right does not depend on a simple appropriation or physical juncture, such as that between beasts and their own body, their food, their nests, etc.

395. 4. The act of will which uprightly desires the thing, and uses physical forces to take possession of it. This act, which presupposes those we have already mentioned is, as we said, the formal part of occupancy. In other words, it makes occupancy a way of acquiring a right.

396. 5. The real or physical act with which an individual appropriates or takes the thing for himself so that right is posited in its own real being. Considered by itself, this physical act is only the material part of right and does not of itself alone constitute right, which needs the moral element.

We shall analyse later the act of physical juncture in so far as it concerns occupancy, and indicate the modifications to which it is subject during the time that an individual is owner of an object.

397. Here it is sufficient to note that for the sake of simplifying language and using it more expeditiously we can reduce the three manners of juncture to two, that is, to a physical and a moral juncture. The intellectual juncture is included in the moral juncture where in fact it is implicitly contained.(119)

398. These two kinds of juncture gradually come to acquire the following mutual relationship. The moral juncture is founded upon the physical juncture, which it presupposes; this is its matter. It is clear that I cannot set aside something for my own use without believing that it can be useful to me, nor can I take possession of it with an act of will unless I somehow unite the thing to myself physically.

399. The physical juncture comes from the nature of the subject which seeks in the juncture the subject's own good. This juncture arises, therefore, from the eudaimonological faculty.

400. The moral juncture comes from the nature of the object in so far as the object, clothed with all its circumstances, shows itself as susceptible of occupancy without injury to anyone. In this case, moral reason acknowledges the object's appropriation as lawful, and declares that no one else may lawfully disturb possession which has already taken place. This juncture springs, therefore, from the moral faculty.

401. As we said, the physical juncture is only the matter of right. The form consists in the moral juncture, without which there is no right.

402. Authors on natural Right have not always distinguished clearly between these two kinds of bond, which are contained in the ownership of external things, and it will be helpful if we offer a brief comment on the principal cause of their errors in such an important matter.

403. The cause of such errors is, as usual, the limited, imperfect observation of these authors.

404. Some writers gave all their attention to the physical juncture while disregarding the moral juncture; the right they sought was crude, material and fictitious in other words a non-right.

405. Others, on the contrary, gave all their attention to the moral juncture, overlooked by the first writers. The result was an abstract, ephemeral, systematic right, different altogether from that universally acknowledged by human common sense as right.

406. The common defect of both classes of authors consists in their not having stated clearly the juncture between the thing and the person which establishes ownership. They had, of course, taken it for granted but paid attention only to its consequences; their lack of clarity shows that their minds had not reached the order of reflections necessary for observing and pronouncing directly on the jural juncture.

407. The writers we are speaking of did not reflect directly upon the jural juncture constituting ownership. We cannot, therefore, describe in their own words any systematic treatment of the matter. However, the spirit with which they approached it may be gathered from the way in which they reasoned and from their teaching which shows the consequences they unconsciously deduced from their implicit system.

408. A necessary consequence for those giving partial and exclusive attention to the physical juncture was their affirmation that right is founded in the real nature of things.(120)

409. Starting from this observation about the physical juncture, they elevated self-preservation, paternal governance, natural instinct (even in those cases or modes in which it was condemned by reason) into absolute, unlimited rights, and granted such rights to beasts.(121) Cicero says: `First, nature granted to all kinds of animals the right to defend themselves, their lives and their bodies, to abandon things that appear harmful, and to acquire and attain everything needed for existence, such as food, lodging and the like.' (122)

410. As we said, there is a truth here but contained within a very imperfect mental conception. The truth is that ownership requires a physical juncture, but the defective conception is that physical juncture alone constitutes right. The authors we are investigating had forgotten about moral juncture.

411. Nevertheless, Cicero realises that the law, and therefore right, had to spring from certain eternal norms, and be founded in the rational nature of human beings.(123) We can say that his mind saw all the ideas necessary for a complete notion of right, but that he lacked the power to unite those ideas and derive from them the complete concept they should provide. He saw all the elements individually, but not together.

412. The error of those fixing their attention entirely on the physical juncture has its origin in their deriving rights from the subject rather than the object. How did this come about?

413. The cause, I think, lies in the fact that the subject provides the matter of rights, which is a subjective good. We know the matter of rights only through and in the subject, who experiences in himself (in his own feeling) good and evil. We know that something is good for us or not, we know that it is useful or harmful, solely in the feeling experiences of our nature which always tends to enjoyment. The subject, that is, the primitive feeling of which all other feelings are modifications, is always inclined to move towards good and away from evil, and finds in his various feeling experiences the reason why one thing is good for him and another bad. The subject finds the worth of things and the measure with which to evaluate this worth within himself. He goes on to reserve them for himself, making them the matter of his right.

From this point of view, the subject can indeed be called the source of rights to the extent that his experience of good and evil enables him to understand what it is that other human beings love or detest. The subject comes to know how he does good or evil to others through his actions, and consequently realises when these actions are faultless and when they are morally impeded. In other words, when they can form part of his right, and when they cannot. Properly speaking, therefore, rights and duties do not arise from the subject; only experience and hence knowledge of them springs from the subject.

414. Spedalieri, a very upright person, was caught in this trap. First, he defined right as `a power in harmony with reason',(124) but without realising that reasons very own activity is to receive the law from known objects. He then proceeds almost immediately to forget his definition, and makes right arise from some `attribute essential to the human being', which he discovers to be `the instinct for happiness'!(125) Having established this new source of rights, he shows he has already forgotten what he has seen immediately beforehand, that is, that the instinct for happiness is a kind of physical impulse insufficient to form a right. Reason has to establish the manner and quantity according to which instinct is permitted to operate. But leaving this aside, he states absolutely:

In this passage, he introduces reason only as that which teaches the means for satisfying rights which have already been produced by the instinct for happiness without the use of reason. It is now easy for Spedalieri to derive from this instinct all the rights that he assigns to human beings: the rights to preserve one's own individuality, to perfect it, etc.

415. But it must surely be obvious that a theory of this kind can only result in perpetual strife amongst mankind. If people have a right to all that their reason shows them to be a useful means to their desired happiness, all have the right to everything that pleases them without regard for other people. Taking notice of others would mean losing one's right to those things, which is against the supposition.
The author vainly tries to ward off this consequence by affirming that from rights on one side corresponding obligations flow on the other to preserve and respect such rights.(127) It is entirely reasonable that I respect the rights which others can have over something, but only when I have no right over it myself. It is impossible to defend the peace of mankind, therefore, by making obligations arise in human beings after and as a consequence of their rights.(128) Agreement and peace amongst human beings is guaranteed only by means of the opposite procedure, that is, by making rights spring from moral obligations, as we have done, not vice versa. We must remember that the nature of right is such that its execution can never be morally prevented. If it could, it would no longer be right, and no longer be moral freedom to act on our part. It is absurd and contradictory to admit first rights in all human beings equally, and then make these rights the source of obligations that impede the exercise of the rights.

416. The world stood back horrified when Spinoza unambiguously maintained the same teaching.(129) However, although all were agreed in rejecting the final fruit of the principle that draws rights from the subject, not everyone abandoned the root whence it sprang. Unrecognised in its true colours, it continued to be propounded in books and lectures which nourished and fertilised it. Its development slowed down, but it was encouraged to grow a little at a time. Hobbes' social contract, and the poison of consequent theories, find their origin here.

417. Spedalieri also turned his attention to a false social contract. We should note carefully how he proves the necessity of making sure that civil society is justly formed:

418. First, if natural rights are necessary and unchangeable even relative to divine omnipotence, what power has the human will to restrict or enlarge them?(131) It is also strange to see how Spedalieri's great argument for showing the truth of his imagined contract is the same argument as that used to show that it is morally impossible.

The absurdity contained in this so-called proof stood out clearly for another writer who saw very well that a society resting upon such a poor foundation can easily be undermined and brought down. `We have to see,' affirms an author of the last century, `if mankind has the right to take upon itself lawfully the formulation of such an agreement (the social contract), that is, has mankind the right to undertake such a responsibility?' (132)

In fact, if rights spring from the nature of things, and if God himself cannot change nature or the rights springing from it, how can the human will change or alter them? Let us grant that all rights come from the instinct for happiness in such a way that human beings have the right to all the means they judge useful for this end. If this were so, no one could alter it. Nor could we take upon ourselves any task today that we could be sure of tomorrow because we cannot in fact judge that what is useful today may not be harmful tomorrow, and vice-versa. Is there any possibility, therefore, of any valid contract between human beings?

What I mean is this: granted the cause, the effect must follow. At whatever moment I judge that something is useful for my perfection or my happiness, both the cause of my right and the right itself exists, according to these sages. But this right is unchangeable because its cause is unchangeable. What I know as useful, I know as useful, and not even God himself can bring it about that what I actually know as useful I do not know as useful. My right, therefore, is unchangeable, and any pact that I make to restrict and alter it is invalid and null. The right is as necessary as the nature of things, and as unchangeable as the instinct for happiness which is in my nature. God himself could not make any change here without destroying human beings.

If it is true, therefore, as these authors claim, that all natural right originates from the nature of things as from their source, everything is determined; the human will is despoiled of any power of free choice. We have to begin by eliminating all pacts from the list of the sources of rights because such agreements are simply a momentary declaration of the judgment we make upon the relationship between things and our own utility and happiness, and cannot be brought to bear at other times. We make a judgment, but this could change an instant later.

There is no doubt that if we posit the foundation of right within ourselves we shall indeed be setting our sights on the stars, only to find ourselves travelling into the abyss by the road of arrogant pride.

419. These difficulties were sensed by people whose common feeling, although still confused, affirmed that `the doctrine demanding that rights precede duties is a source of violence'(133) and reasserted `the doctrine that duties precede rights.'

420. Was it impossible then for people to see that in deducing rights from the subject, a system was formed which carried within itself a nucleus destined to destroy rights themselves and the whole of humanity? Yes, this was seen, or at least suspected, but people hoped to remedy the disorder by patching it over. Two principal methods were devised, and these corresponded to the two natural limits whose task it was to contain and limit human actions.

The first of these limits was located in right judgment.

Human beings have a right to a thing only if they judge it useful to their perfection (so the argument runs). Consequently each individual must abandon many things to the power of others, that is, all those things from which he derives no utility.

421. This train of thought was perfected and a system devised which prescribed that human beings should be instructed and persuaded from the beginning of their education that everything helpful to the common good constitutes also their own particular good. This persuasion would depend upon how civil society was regulated so that the common good had the greatest possible bond with the good of private individuals.(134)

422. This would be an excellent argument, provided that the means for carrying it out did not involve any infraction of rights. They are, however, insufficient for their purpose.

In the first place, it is impossible to persuade anyone that all men and women would everywhere think in the same way. Whatever method and form were taken by education and society, no one could ever be sure that an individual's judgment about things would not change in a flash. It would be impossible to persuade an individual who had arrogantly escaped from great danger that private utility coincided with public utility. The same is true about a thief in the process of getting away scot-free with his loot, or about some ambitious usurper who thinks the circumstances favourable for a coup d'tat, even if thousands of lives have to be sacrificed for his aggrandisement and that of his family: neither thief nor usurper would be persuaded that their private utility was the same as public utility. Nor would they be held back by remorse: they would simply be exercising their right to use means towards their own perfection and happiness, means to which they have an immutable right!! Finally, before deciding that children in general should be persuaded of a given opinion, it is necessary to be sure that the opinion is true. Unfortunately, the opinion we are considering is false.

423. It was thought that a second limit could be found in the degree of physical force possessed by each individual. This was the source of the system of force. Some authors claimed that human society could be constrained by force in such a way that the individual's exercise of his rights would be unable to inflict harm upon his fellows, even if he wished to injure them. This is how the problem was set out in the last century. Even a little knowledge of human nature is sufficient to show its absurdity.

For instance, overpowering force is certainly not necessary in order to do harm. As we know, a malicious child can inflict harm. Moreover, anger and other passions find an outlet even when they are clearly going to bring grief to their perpetrator. There is also the difficulty of preventing association in the world at large. Imagine for instance, that the whole of mankind had been imprisoned under the illusion that forestalling its propensity to harm was a benefit conferred upon it. Nothing could now prevent the jailers from inflicting every kind of injury upon the beneficiaries of such a system. And generally speaking, if we grant that force can always be checked by greater force (although this is not true), the superior force must be exercised by someone. In this case, there is no one to prevent injury by this force or check its exercise; no right is available to check another's right. It is incredible that Kant's sophistry disregarded this. But his mind, twisted by the infection present in his century and by Protestantism, brought him to clothe the absurdities of his time in the most perfect philosophical forms. He was a great mind and could have raised up an immortal, scientific monument to truth if he had availed himself of the assistance of Catholic principles.

424. These two systems indicate a total lack of knowledge about the reality of the human condition.

After all, who are the people expected to instruct the human race sufficiently to enable such a prudent, although unlawful, rule of force to be enacted? Do these people form part of the human race, or do they descend upon us as blessings from outer space? If mankind had to act as a brake upon itself, either with persuasion or force, it would be a double-headed monstrosity, simultaneously restraining and being restrained. Again, is the responsibility of restraining oneself and others by persuasion or force a moral duty, or not? It cannot be if we wish to be coherent. The whole system is in fact a surrogate for non-existent moral duties in the face of existent rights.

Will utility be the stimulus to action? First, we have to see if people think it useful to follow without any obligation whatsoever the systems imposed upon them by a horde of philosophers, no two of whom agree. After that, there is no doubt that individuals who consent to the system will accept the common utility as their own utility and endeavour to persuade everyone else of their worthy opinion. But who is then going to prevent them from awaiting a secret opportunity to profit by this belief of others and thus, according to our philosophers, act with perfect justice by seeking their own good in such a cunning way. In the end, the individuals we have in mind are going to turn the argument on its head by maintaining that if the common utility is their own utility, their own is the common utility.

425. It follows that morality is finished, and society with it, if rights and consequent moral obligations are deduced in any way from the subject rather than the object. Authors who teach these principles may deny their consequences, but they cannot forestall their pitiless, inexorable progress.

426. If we look more closely at the logical formation of these errors, we shall see that their authors did not distinguish sufficiently between obligation and the force necessary to mankind to execute it. They saw that human beings could not carry out obligation without following the impulse to good provided by nature an impulse against which the individual cannot act. They went on to conclude from this that obligation consists in satisfying this impulse to good. But here they confused one thing with another.

427. It is not true that obligation consists in satisfying the impulse to good. Obligation exits independently of this impulse just as the notion of what is true and false exists independently of the love bestowed upon what is true and false. We receive obligation, but we can only carry it out by means of the forces with which we act. Human operative forces are summed up, however, in the tendency to eudaimonological good which is as it were their principle. It follows that if we want to carry out our moral obligation, we have to believe that we are obliged to consider its fulfilment as containing our superior eudaimonological good. And this is always possible for human nature (which does not lack help from on high) because it is endowed with free will. The power of this wonderful potency of free will consists precisely in making prevail for itself the good it wants. To say that obligation arises in us from the principle of happiness is the opposite of the truth. What happens is that with our free power we authoritatively direct this principle to the object we want; and it is morality which constrains us to turn it to morality itself. In fact, the supreme genus of human duties could be expressed in the following proposition: `We must direct the instinct for happiness to the execution of the moral law' or: `With our free will we must make our greater eudaimonological good consist in the acquisition of moral good and in its consequences.' (135)

428. The subject's good, therefore, is always that which makes us act. But we have to note that although this is totally true, the good is itself subject to the free will with which we determine it. And free will is always obligated by the law to determine the good in favour of moral goodness.

In the second place, the subject's own good reveals to the individual the good of his fellows. In doing so, it provides us with the opportunity of carrying out the moral law in their regard by doing them good, not evil.

The desire for good and for the felt experience of good provides two kinds of service to morality: it is the instrument which the will makes use of in order to carry out moral obligations, and it gives us knowledge of what is good for our fellow human beings and of what we should do to help and protect them.

Because the subjective good enters into the execution of moral obligation in this twofold way, it is easy to confuse the principle of morality, the source of obligation, with the principle of happiness, the source of the execution of the principle of obligation.(136)

429. We may rightly say that philosophers who gave exclusive attention to the physical juncture, and posited ownership within it, are characteristic of the ancient world. The opposite error pertains to modern times in which many authors have devoted their entire attention to the moral juncture while totally forgetting the physical juncture on which alone the moral connection can be founded. Among these writers must be numbered the ultra-radicals of every country, whatever their name: Sans-Simonists, Chartists, Communists and so on.

430. These authors are divided into four classes.

The first class maintains that `each individual has the right to an equal portion of external ownership'; the second, `to each should be given according to his merit'; the third, `according to need'; the fourth, `that ownership of things belongs to no one in particular but to humanity as a whole, although the use of things belongs to individuals.' The fourth group are split about whether to understand `use' on the basis of arithmetic equality or merit or need.

431. As we can see, all these principles equally ignore the physical juncture. They err in presupposing that for a thing to be mine, it is sufficient that I judge on the basis of certain speculative reasons that it belongs to me. I do not need to take possession of it, nor is it relevant that others have already done so.

432. Our first answer to this error, common to ultra-radicals, is that the human race has never understood the word `ownership' in this manner. Common sense has always understood mine and yours to refer to something that either has of itself or by means of some act has acquired a certain physical connection with the person expressed in me or you. This connection is unique and of such a nature that it does not break any other previous connection between the thing and another person who may be injured by the collision.

433. A second answer, sufficient to illustrate the fundamental deficiency of this system, is its gratuitous, false supposition that an individual has a right to the use of all things.

434. Affirming that human beings have the forces needed to use things proves nothing relative to right. Moreover, it is not true that we have the physical forces to use all things.

435. Saying that human beings need to use things (and these needs are limited if we abstract from fictitious, imaginary requirements) proves nothing. Having a need for things does not form a right.

436. Appealing to intentions of the Creator in order to prove the point means taking the matter beyond its proper limits. It is impossible to know the mind of the Creator without turning to revelation. But if we depend upon revelation, the argument is ended by reference to the seventh commandment, which acknowledges ownership in the sense always recognised by mankind, not in that accepted by the ultra-radicals.

437. Nevertheless, a system would be useful (this is truly the Achilles' heel of these people) which, dependent upon the principles expounded earlier, wanted to have things or their use distributed independently of any existing possession.

438. My first answer is that the ultra-radicals, who do not recognise ownership in the sense in which it is recognised by the human race and safeguarded by civil laws,(137) are still in disagreement on this matter. The three or four principles they profess, and which we have indicated, are utterly irreconcilable.

439. Second, the calculation which claims to resolve the problem about `the most useful system for humanity' is so complicated and difficult that it is beyond the power of human understanding. And if some god-like genius existed capable of making the calculation, he would never succeed in persuading others who did not grasp it. And what obligation would there be for everyone to solve the problem in the same way? If each individual were free to resolve the calculation according to his degree of intelligence, which of the many solutions would become the universal law? Finally, individuals will necessarily find varying solutions because each will be in a different position and governed according to a rule of action modified as a result of his circumstances

440. Third, if all could and should agree about a solution to the problem and decide harmoniously about the greater common utility, it does not follow that utility, common to all mankind, forms right, and that each individual is obliged to renounce what he has until now possessed. I agree that this would be a wonderfully generous and beneficial thing to do, but it cannot be shown that it is an obligation in justice. In order to prove this, we would first have to remove the distinction between just actions and beneficial actions, or establish as a principle `that each is obliged, by a title of strict justice, to do the greatest possible good to all human beings.' But this unheard-of tyranny is utterly cruel although cloaked, as we have seen, under the apparently kind appearance of changing all beneficent actions into equivalent jural obligations.(138) This is not the freedom and equality we are looking for.

441. Fourth, and finally, before seeing whether the system proposed by the ultra-radicals is useful for mankind, we have to decide whether it is possible. What is impossible can never be useful. Its impossibility will be seen, however, as soon as we consider it closely.

442. Some of those urging the adoption of this system require the distribution of property to be made in arithmetically equal parts although it is clear that if substances are divided in this way some people will have plenty and others insufficient.

443. Moreover, the proposed division will be carried out either by the whole of mankind or by a few individuals.
It would be absurd to imagine that the whole of mankind should divide all available substances.
But if responsibility is given to a few, will they be judged by the multitude in cases of injustice? In this case, the whole of mankind would again have to intervene either as distributors or as judges of the distribution. But it would be impossible for all mankind to reach agreement even if all could take part in the operation and had the time and all the necessary conditions available for engaging in such work. It is rare enough to find a few reaching agreement about matters touching upon their own interests. Children, when they arrived at the age of discretion, would have reason to complain that their rights had been damaged by their absence from the division to which all have an equal right. But let us imagine that against all the odds the sharing out has been completed satisfactorily: if a single person is now born or dies, the immense work is rendered useless and has to be restarted.

444. Similar comments may be made about the other system which would share out substances according to merit. An additional difficulty arises, however, as we search for a human tribunal capable of infallibly judging true merit, the only foundation on which we could hope to sustain ownership. The desire to found ownership on apparent merit only (which is not merit) would not result in discussion about principle, but in worthless talk about fantasy. Granted even that we could measure each individual's true merit with some kind of moral yardstick, we would still have accomplished nothing useful because different people exist at different times, and the merit of each person ebbs and flows from moment to moment. Moreover, if merit can claim what is available, demerit (which is something over and above merit) requires deprivation of what is available. A good number of people are going to die of hunger, I suspect, granted the kind of legislation these ultra-liberals would produce.

445. Need is also an insufficient explanation as a rule for the division of what is available as long as we are discussing a division of right, not of beneficence. There would be no one to judge the needs of individuals. Each person would claim, with apparent reason, that he should measure his own needs. After all, he is the one who feels his needs, especially in the case of his right. Again, therefore, agreement in these cases would be impossible.

We would also have to consider that needs are of many kinds. Some, such as intellectual and moral needs, cannot be calculated, although they are at times more pressing and acute than physical needs. Needs are also subject to continual, rapid change in various periods, circumstances and moments of life. They increase and decrease in an extraordinary fashion.

446. Claiming that everything available should be administered in common, and that only income from what is available should be distributed, has all the disadvantages of the preceding systems as well as the dubious privilege of being a totally arbitrary disposition. The impossibility of administering in common all that is available cannot be overlooked. Because we are dealing always with rigorous right, all should take part in the administration, or act as judges of what is being done in the vast business. And no individual or group could impose upon even a single person the obligation of renouncing his right and his opinion. In a word, there would be as many administrators and judges in this system as there are human beings. No one could stand outside the inevitable conflicts to intervene as supreme judge when necessary. Strife and war would be necessary because every possibility of discussion would be impossible.

447. We must conclude that all these systems are gratuitous relative to their first fundamental propositions and impossible relative to their execution.

448. But let us reflect now on the system that I am proposing. There is no need to prove that it is possible because we can see it put into practice throughout the whole world, and followed everywhere, from the earliest times or at least from the time of Peleg.

449. It is not gratuitous, as we can see if we consider that it revolves around a totally clear, moral precept and a fact of nature. The precept states: `It is forbidden for one human being to cause pain to another.' The fact is: `Pain is caused whenever a part of anything united to an individual through feeling and upright will is detached from him.'

But taking possession of something real is a juncture which is felt and willed. Consequently, once such juncture has taken place, the moral law forbids our separating occupancy from the person because it is forbidden to cause the person pain. I cannot, therefore, unite that thing to myself or use it for my own advantage without at least the consent of the person who already possesses it; I must respect this jural possession called ownership.

450. It will perhaps assist us if we come to understand better the series of reasonings which led the writers we have been discussing to abandon the physical connection, the foundation of ownership, and go on to believe that ownership arose simply from speculative principles, whether eudaimonological or moral.

As we said, this is a modern error. In fact, it could only have arisen long after people had taken possession of unoccupied territory and divided it amongst themselves. After that, occupancy, the original title of ownership, became less important; fewer occasions of using it were available. Other agreed titles (titles of transmission of ownership such as succession, donation and bilateral contract, etc.) took its place. These titles were indirect modes of acquisition; the direct mode, occupancy, had almost vanished, absorbed, as it were, by the acts of those who had first taken possession of ownerless things. We have to consider now that only the moral bond changes when already constituted ownership is transmitted in various ways from one owner to another. The owner changes, but the physical bond of occupancy and possession remains substantially what it was before. Our attention however is drawn more to what changes, and we easily forget that which remains the same. As a result, occupancy, the felt, physical juncture, was totally overlooked by our publicists who concluded that ownership arose solely from intellectual and moral principles.

451. They were led to confirm this error with some force by their having observed that loss of physical possession on the part of an owner who suffered unjust depredation by others did not in any way affect his right of ownership. He could in fact make it prevail by using force against the unjust aggressor. This fact permitted the publicists to believe that the entire substance of ownership consisted solely in a rational or moral law. The error could only be detected by noting that a factual invasion or usurpation cannot take place unless the owner has already taken possession. It is this occupancy that he is vindicating. All acts of ownership, therefore, which are carried out by successive owners of any thing are referred in the last analysis to the first taking of possession, that is, to the first corporal bond of a thing with a person. This is both the origin of ownership and the aim of all acts of ownership.

(115) ER, 252-255.

(116) I have shown, mainly in AMS (764 ss.), that subject is a feeling-substance.

(117) §65.

(118) `Anyone making a fire with his own wood can indeed exclude all others from use of the wood and the ash because these are exhaustible objects, but he cannot prevent another from looking at any object in the light coming from the fire' (Zeiller, §65). The light of the fire, we may add, and the eye seeing it, have a juncture established by nature.

(119) Roman laws indicate very clearly this twofold connection which gives rise to external ownership. For example,: `As no possession can be acquired without SPIRIT AND BODY, so no possession is lost except that in which BOTH act in a contrary fashion' (L. 8 ss. de acquir. et amitt. poss.) - Spirit and body indicate the two connections which we have called `physical' and `moral'.

(120) `That which can be called and entitled `right' is so by nature' (Cic., De Finib., bk. 3, c. 21).

(121) Blackstone, speaking of animals, wrote: `They, too, have a claim to a kind of permanent ownership relative to the area around their lairs, especially for the defence and protection their young. Birds have their nests, wild beasts their caves and woods, and it would seem an evident injustice to them, which they would oppose even by risking their lives, if their territory were invaded' (bk. 2, 1). If we want to give a reasonable meaning to the word `injustice' as it is used in this passage, we have to take it as a figurative expression and, therefore, something which should have been avoided by an author on Right who wishes to prevent doubt and ambiguity in the minds of his readers. If this were not figurative language, the author would be predicating right, and therefore knowledge of what is just and unjust, of animals. He would also be contradicting his other opinion which states that no right to external ownership existed before the institution of civil society.

(122) De Off., 1, 4.

(123) Cf. De Leg., 1, 5. He says: `The nature of right has to be explained, and this explanation is to be found in human nature.' Shortly afterwards, he adds: `For it is a power of nature; it is mind and the understanding of prudence; it is the rule of right and of injury,' etc.

(124) Dei diritti dell'Uomo, bk. 1, c. 2.

(125) Ibid., bk 1, c. 3.

(126) Ibid., bk 1, c. 3, §2.

(127) Ibid., bk 1, c. 4.

(128) It is certainly true that there are obligations in others corresponding to the rights present in a human being. These obligations arise, however, from the law as their first source. Rights are such only in relationship to the moral law. The error in Spedalieri's system consists in making rights themselves the cause of the obligating force, in making rights the law itself. `When rights and obligations correspond, no one can lord it over others, and no one can complain; but this is a state of peace, not of war' (bk 1, c. 5, §5). I grant that rights and obligations can exist together if rights and obligations in the same person have different objects, but it is absurd to suppose that this is the case when they have the same object. For example, how can I impose an obligation on myself not to use an object which I know I have a right to use?

(129) The following passage from Spinoza's Tractatus theologico-politicus (c. 15) is a summary of his system. `I understand as natural right and institution only this: the rules of nature for each individual according to which we mentally conceive each one as determined to exist and act in a certain way. For example, fish are naturally determined to swim, and larger fish to devour smaller fish. Fish therefore use water, and bigger fish eat smaller fish, with full natural right. It is undoubtedly the case that nature, absolutely considered, has full right to whatever lies within its powers. In other words, the right of nature has the same extent as nature's power. Nor do we accept the existence of any difference between human beings and other individuals in nature. The natural right of each human being, therefore, is not determined by sound reason, but by desire and capacity. Consequently, the individual, considered under the rule of nature alone, lawfully desires whatever he judges useful for himself, either on the basis of sound reasoning or as a result of stimulus from his desires; he does this because full natural right enables him to take what he desires for whatever reason by force, fraud, request or in any way he thinks easiest. And it follows that he can lawfully consider as an enemy anyone who wants to prevent him from fulfilling his desire.

(130) Dei diritti, etc., bk. 1, c. 12, §6.

(131) Spedalieri teaches that rights are equal in all human beings, and goes on to explain social inequalities by means of a subtle distinction between right, and the matter of right (bk. 1, c. 7, §9-14). But surely it is clear to everyone that, if the matter of a right differs, the right is different. His recourse to the inequality of human faculties is also unfortunate. He begins by affirming that each individual has the right to use all the means which he judges useful to acquire his own perfection. But if this is the case, it is not the inequality of their faculties but the difference in their judgment, opinions and desires that makes them unequal in their ownership. No one can prevent an individual endowed by nature with extremely limited faculties from desiring the whole world if he believes its possession to be useful for his own perfection. In Spedalieri's system, therefore, inequality of intellective faculties cannot be the source of inequality of ownership amongst human beings.

(132) Des Erreurs et de la verité etc., Edinburgh, 1782. - Part 2, pp. 7-9.

(133) This is the argument used by Giuseppe Droz in his La Morale applicata alla Politica etc.

(134) Spedalieri proposed this in bk. 2. But he found it insufficient even when it received the support of all possible natural means. To save society this author is forced in the end to turn to the Christian religion, that is, to abandon the system he had embraced. Christianity, in fact, instructs us about our rights only after having found us faithful to our duties. The last five books of Spedalieri's work, which are devoted to showing the necessity of religion, can be considered as a refutation of the first book.

(135) When we say `principle or tendency to happiness or eudaimonological good', we do not always mean a calculated good, but in addition the good to which we incline spontaneously. As we noted in Storia comparativa dei Sistemi morali (c. 4, art. 4), we cannot call this good either selfish or unselfish.

(136) This enables us to see the place occupied in morality by Hutcheson's benevolence and Adam Smith's sympathy. They cannot form the principle of morality, but have to be considered as modifications of the system of happiness, presented by their authors in a noble or ignoble way. By establishing the system of happiness upon the natural propensities of human beings, it was possible to fix one's gaze upon one propensity rather than another. If a noble inclination was kept in view, the moral system deriving from it had the appearance of nobility; if an ignoble inclination was the object of vision, an ignoble, despicable moral system resulted. It is clear, therefore, that we must all feel pleasure in acknowledging the pure feeling to which the two authors we have mentioned endeavoured to recall mankind, just as on the contrary we all find cynicism hateful. Nevertheless, sympathy and the inclination to love of our fellow human beings can only constitute aids to our execution of virtue; they do not have any power to impose on us obligation, which they presuppose.

(137) I do not want to justify those laws which either safeguard ownership insufficiently (because they do not safeguard it completely nor always in the same way) or which may go so far as to damage some part of ownership. I acknowledge the presence of such laws which have always existed and which still exist even in the best known codes. But this proves nothing. Positive legislation requires centuries for its perfection. I am speaking of civil laws as a whole, according to their spirit, and relative to what has been perfected in them.

(138) Cf. SP, bk. 2, c. 13.

Chapter 4