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ACQUIRED RIGHTS

Chapter 7

864. We must now see how ownership, acquired through occupancy and the other ways we have examined, may be preserved and lost.
Does the preservation of ownership require the continuation of the conditions we have laid down for occupancy? If this were the case, would ownership be lost when one of the conditions - for example, the commencement of useful work on something - ceased altogether? Is ownership such that, once acquired, it cannot be lost through inaction on the part of the owner?

865. As we have seen, ownership is the result of a moral-physical bond (cf. 397). If this bond is formed by nature itself and not by some act on our part, it is unbreakable by us, and breakable only in certain cases by nature, which formed it. For example, ownership of our body could not eliminated by any act of our own. Only nature, through death, can remove the body from our power by separating it from our personal principle and thus destroying it as an object of right.

866. What belongs to us through a bond formed by nature cannot therefore pass to the ownership of others by any kind of prescription or usucaption. This explains why civil laws themselves acknowledge that such titles are inapplicable to certain objects.(214)

867. But if the bond of ownership is not formed by nature, so that we are dealing only with acquired rights which are not contemporaneously moral obligations, the bond that we make may also be dissolved by us.(215)

868. There is no doubt that in such a case our ownership ceases first of all as a result of a simple act of our will which renounces that right. The act of will is the first necessity in possession and dominion and, as such, is the principal element of the moral-physical bond.

869. Granted, however, that we have not willingly renounced ownership of anything, could ownership cease as a result of some deficiency in the conditions necessary for occupancy? Let us examine the matter carefully. One of the conditions was the usefulness of the object for the occupier.(216) Now it seems clear that if an object becomes evidently and perpetually useless to me and mine, rational Right requires that it be considered no longer as occupied by me, but free.

870. This object could, therefore, be occupied by another provided that the new occupier shows the necessary moral regard due to the person who wrongly wishes to continue his occupation. In other words, the new owner must provide a clear explanation of what he is doing so that the other person does not suffer reasonable displeasure.

871. It may be objected that the right not to make use of something is included in its ownership. - This right not to use something that is one's own is generally acknowledged by authors. I acknowledge it also, but I think that more careful consideration is required if it is not to be misunderstood.

872. Let us imagine that a person declares and obliges himself not to want now or in the future any use or profit for himself or his family from some given thing which, however, he retains as his own to prevent its use by others. I am sure that every person of good sense would see this as unreasonable and therefore against right. The thing under discussion would be considered as free, and as such could be occupied by others. It could even be removed from the unreasonable occupier by force if he tried to retain it by force. In the state of nature this would be idle retention, and in our case declared so by the occupier himself.

873. But why is this the only limit placed upon the non-use of something by its owner? - The reason is as follows.
If we consider human beings in the state of nature, we start by mentally conceiving them as isolated, without any relationships amongst themselves. In these circumstances, our first question is: `What are the duties and rights which have their foundation in nature alone?'

Strictly speaking, there are no rights except in relationship with others. Nevertheless, the roots of rights, that is, the faculties for doing forcefully and lawfully all that one pleases, are found in every isolated individual of the human species considered without reference to others. Solitary individuals think only of themselves, but not as a result of selfishness or lack of benevolence towards their fellows. Others do not yet exist for them; they suppose others not to be, and abstract completely from their existence.

The freedom of such individuals cannot therefore be limited by relationships proceeding from others who have been totally eliminated from the calculation. An individual's thoughts, affections and actions are subject to certain moral laws, but not to anything else. In such a hypothetical state, personship develops with all its force; it can only believe that no obstacle will impede whatever it wishes to do; when anything does impede its action, personship can only feel pain and indignation. In these circumstances it emerges in all its freedom wherever it pleases, carrying out once and for all whatever it wishes. Everything is affected by the real force which the human person possesses and with which the person refers everything exclusively to itself. Taken up with itself as it is, the human person cannot refer things to any other end, which is still unknown to it.

874. Human personship is also naturally inclined to this absolute dominion over things for other reasons:
1. because of its own excellence which is such that it cannot subject itself to anything except the truth;
2. because it does not as yet know any other personship which merits the same esteem as that attributed to itself;
3. because nature has joined to personship certain things, such as its own body and the faculties available to the person, with a bond that is of itself unbreakable and inviolable.

875. Imitating the natural dominion that it possesses and exercises over the inferior powers and over its animal body, human personship also reaches out to dispose of everything that can be useful to it. It draws everything into the whirlpool of its existence without regard or consideration for others to whom it reacts with irritation and displeasure if they place any obstacle to its activity.

876. Such absolute dominion of personship over things could never be blameworthy if human beings always did what was good. If this were the case, dominion could be loved and willed by personship only for the sake of some real advantage.

877. Human depravity, however, is such that personship delights in its dominion over things not for the benefit and justice accruing from dominion, but solely for the sake of naked dominion and the pleasure of feeling its own superiority. The more dominion is exercised capriciously, the more pleasure is felt as absolute and free from any limitation exercised by reason. When ambition and longing for seigniory over things has entered corrupt, human spirits, it is clear that any attempt to disturb their pretended seigniory is going to cause great offence; anyone occupying something already possessed by another is going to cause trouble whether the thing is held according to a reasonable state of satisfaction or simply for the power that possession brings with it. Consequently, it was thought that in both cases some injury would be inflicted as a result of the disturbed possession and its ensuing discomfort, and that the first occupiers of a thing had the right of ownership over it even if they held it only for the sake of dominion. Finally, it was also thought that this right extended to any use whatsoever, however capricious it might be, and even to non-use intended to prevent the thing's use by others.

878. But careful consideration will show that this is not human nature's natural Right; it is not rational for a rational creature to act against reason. Antiquity was very clear about this when it placed the foundation of Right in the law of probity which is as natural to humanity as reason itself.(217)
It is true that we all have to abstain from causing others displeasure when displeasure is natural to human beings, that is, when displeasure is rational, as in the case of harm to just ownership; but there is no moral obligation to do this when displeasure is unnatural because irrational. In this case, the discomfort arises from a vitiated, capricious desire to prevent others' using things which, according to our hypothesis, the present occupier cannot and does not wish to use either now or in the future.

879. Let us move on now from consideration of the isolated individual who appropriates things without regard for his fellow human beings to a reflection on the same individual who has made some progress in the state of nature. He now co-exists with other human beings to whom he is related through his intelligence and moral status. When he makes things his own, therefore, he has to take others into consideration. Mere caprice can no longer provide a good foundation for the right of ownership. Moreover, the person at the first stage of the state of nature has still not acquired ownership by right, although a material ownership has come into being; he has united things to himself instinctively, almost in the same way as an animal appropriates its lair and the food it requires for itself and its offspring. A physical bond exists, and pain when the bond is broken; but right, the moral form, and jural resentment arising from its violation, is not yet present. This begins only in the instant that the physical bond becomes a source of moral obligation forbidding others from doing harm. However, the physical bond, which is not morally worthy of respect because it is not reasonable, is only an abuse of power and freedom entailing contempt and damage for others. It neither requires reverence nor is it informed by law. It is a fact, but it is not yet a right.(218)

880. Our question has been decided, therefore, solely on the basis of the rather improbable supposition that someone capriciously retains things for the sole motive of having them or excluding others from enjoying them. The supposition is not, however, impossible, nor could we do without it as a means of first offering a general solution to the essence of the problem, considered bereft of its accidents. But we can now go on to consider the accidents which may accompany the problem and solve it with reference to them and the changes they may bring about.

881. In fact, it is hardly likely that anyone will go so far as to declare that he has no wish either now or in the future to use something he possesses for himself or his family. If he does not make such an unusual declaration, it cannot be presumed, nor can frivolous arguments be employed to establish it. Indubitable arguments in its favour have be present before it can be used as a basis for action. Such proofs are, however, very difficult to procure.

882. If it is difficult to find such a case in practice, others can be found. For example, there is no doubt that if I were present when someone in a furious rage was about to smash a precious vase, and I managed to save the vase from certain destruction (if I caught it before it reached the ground), it would now belong to me, not to the previous owner,(219) who has shown only too clearly that he never wanted to use it again.

883. It is certainly not correct to conclude from temporary non-use of anything that its owner has no intention of ever using it again. Nor can another person's ownership be disturbed if he makes little use of what he owns and draws less benefit from it than he could. An owner has to be granted full power of decision about the quantity and quality of the use of the things he owns, provided that he makes some use of them.

884. At most, lack of understanding, power or will in the use of some given thing authorises others to complain to the owner, according to rational Right, if they suffer harm from the privation of some good that might accrue to all from better use of the thing. They may come to some agreement with him about better use of what he owns, and even put pressure on him with due moderation if he evades the agreement, and resultant harm is serious, evident and common.(220)

885. If this right did not exist in nature, there would be no foundation in natural Right for the laws with which civil society places wastrels under supervision. It is just and in accordance with reason for the rest of the community to appeal in favour of minors or the public, or even of private good. This kind of natural limit is contained in the right of ownership.

886. If the simple temporary non-use of something is insufficient to prove the owner's desire never to use it, lack of adequate defence of the thing provides still less proof that it has been abandoned to occupancy by others. Some kind of force, although always present in the case of occupancy, entails use of the thing, but does not form the physical bond (cf. 469).

887. Generally speaking, the defence of private ownership is always present when civil society has been constituted. If the private owner himself is incapable of defending what he owns, society itself undertakes this responsibility.

888. In addition, we know that human nature has to be handled with respect even when necessarily subjected to unpleasant treatment (that is, to what defective human nature sees as harsh treatment) (cf. 457). This is even more to the point when proof that something has been abandoned is still uncertain.

889. This uncertainty provides us with no right except that of verifying the proof.

890. One way of doing this is to ask the owner about it. At times, it may even be possible to attempt, in the presence of the supposed owner, to use the thing or the right whose use has apparently been abandoned. If the owner is silent, and refrains from complaining, we have a sign that he is not displeased. This proof can be considered satisfactory because damage to ownership would provoke pain or complaint on his part as a definite natural symptom of the damage.

891. It may be objected that it is impossible to begin to use something which could belong to another. - Yes, but there would not seem to be any injury or harm done if such use, intended simply as a proof, were done without damage, and if accompanied by a readiness to withdraw when the doubtful owner insisted on his right. This in fact is what normally happens.

892. On the other hand, this is the usual reaction of anyone who doubts whether he owns something. If a doubtful owner of something remains silent when I use it freely under his eyes, a reasonable persuasion arises in favour of my ownership and against that of the other person, provided that the silence cannot be explained in some other way. For example, as a sign of fear, ignorance about one's own titles, and so on.

893. Civil laws often have recourse to this proof when dealing with doubtful rights. Prescription and usucaption, which positive law considers as titles or modes of acquisition, are examples of such proof. However, they are not recognised as means of ascertaining rights unless the apparent owner has failed to complain, when he could have done so, against the use he sees others making of the uncertain right.(221)

894. All this clearly shows that the principal questions arising about rights are normally concerned with the signs that make rights known and publicised, rather than with the matter of right itself. In other words, we are dealing with that which imposes the obligation to respect rights.

(214) Cf. the Austrian code, §§1451, 1452, 1455, 1459, 1481, 1483 - the Albertine code AA. 169, 2361.

(215) Amongst our acquired rights it is possible to find ownership which depends simultaneously on an act of ours and upon nature which intervenes to sanction this bond of ownership with moral obligations inherent to the acquired rights. For example, marital rights draw their origin from an act of ours although nature intervenes to form and consecrate the marital tie. Consequently, the relationships between husband and wife, like those between father and son, are unalterable. This is true even though we can say that their origin, relative to their real subsistence, springs from some willed act of ours. Connatural rights are not the sole category of rights over which prescription and usucaption are unable to prevail; acquired rights in the formation of which nature intervenes are also free of all prescription and usucaption. Because of nature's intervention they belong more to nature than to ourselves, and are sanctioned in their very being by moral obligations.

(216) ER, 252-255.

(217) `Those who have received reason from NATURE have also been given right reason. They have therefore been given law, which, as right reason, commands and prohibits; but if they have been given law, they have also been given RIGHT' (De leg., 1, 12). - Hence, right has its source in the moral law, the moral law in reason, and reason is given by nature. According to Cicero, natural right is the child of reason and of the moral law. This is not the so-called right shared with animals, but `the right proper to human nature', as we have said.

(218) The same principles resolve the question: `Does ownership cease in the case of necessity?' It is certain that if an owner, even in the state of nature, has to consider others, he also has the jural obligation to allow others to use what is his when this is necessary for the preservation of their existence, provided it is not necessary for his own existence. Whoever uses another's property in these circumstances should, however, make known to the owner the dire need in which he finds himself. If the goods were just as necessary to the existence of the owner, no one could take them from him. - Finally, the person in need may find it possible to take what is necessary as a loan rather than in absolute ownership. If this is possible, it must be done, and the loan restored as soon as possible. His need to preserve his existence gives him the right to use the property of another only for his own preservation, and with the least possible disturbance to the owner.

(219) If, for instance, some wood is swept away by a river, and its owner does not come after it, what I save from the water and collect belongs to me. In this case, it is mine under the title of salvage. The difference between the titles of salvage and occupancy is this: in occupancy, I can hurry, along with others, to be the first to occupy and take possession of what is free; in salvage, I must give precedence to the person who has lost what is his (provided he wishes to save it); I can save it only if the owner shows that he does not want or is not able to save it. There is another difference in rational Right: if the owner does not save something because he does not want to do so, he has no right to restitution. If however he does not save it because he cannot, but I save it, I must in equity give it back to him. Compensation is due for my expenses and effort; if the favour I do has cost me no effort (for example, when I have found something), some reward seems appropriate from an equitable, moral point of view. I have only a moral, not a jural obligation to save the lost property of others if I can do so.

(220) Common sense is inclined to excuse thefts against people who do not know how to benefit or profit from what they have, and to look favourably upon well-maintained fields and houses, etc.

(221) Cf. §§1459, 1478, 1482, 1483, 1487, 1490, 1495-1497 of the Austrian Civil Code. - This code first recognises the right of an owner not to make use of the thing he owns (§1456, 1481). - Simple non-use of a right does not invalidate that right. Some other sign is needed from which it may be inferred that the possessor of the right considers it as abandoned and conferred upon someone else. One such sign is seen in his not complaining when others use the right, or in his not making use of it when there was an occasion for doing so and circumstances would lead people to believe that he would use it if indeed he believed he possessed it. Another sign would be his failure to prohibit its use. - Notice that in the state of nature prescription and occupancy serve as signs for recognising if the rights of others are extinct, and hence if it is lawful to dispose of the objects of these rights. Under civil law, prescription and occupancy are also used as penalties against negligent owners in order to make them more vigilant in the administration of their goods, and as a means for resolving disputes. Nevertheless, the principal concept under which civil laws consider prescription and usucaption is always that of signs indicating where right exists between two parties. For instance, if someone has paid a debt without appealing to prescription, he loses the right to appeal to it. He has acknowledged the debt in paying it (§1497 of the Austrian code). For the same reason, a judge is under no obligation to consider prescription unless the parties to a dispute have spoken about it. Prescription is a means of ascertaining the persuasions of the parties; it has no other purpose (§1501 of the Austrian code).

Chapter 8