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ACQUIRED RIGHTS

Chapter 8

895. As far as I can see, we have now arrived at a point where analysis of the right of ownership will be both clear and useful. Summarising what has been said, the analysis will throw new light upon it by ordering and completing it, and thus serving as a foundation of all that remains to be developed under the heading of rational Right.

896. With this in mind, we need to start at the highest level by reconsidering the concept of the state of nature, and comparing our understanding of it with that of writers whose opinions we do not wholly share. If this concept is not well defined, the following question will not be clear either: `What right is present amongst people in the state of nature?', nor the rather more restricted question: `What is ownership in the state of nature? What elements does it include?' Again, it will be impossible to judge writers whose opinion we do not accept, or explain their errors, if we are ignorant of their concept of the state of nature.

897. There is no doubt that the nature and the constitutive elements of the right of ownership necessarily vary according to the concept expressed by the word `nature'. However, I shall not indicate all these meanings here, nor describe their history. I shall restrict myself to pointing to the three principal meanings which are most useful for our purpose and give three different values to the expression `the state of nature'.

898. The first meaning in which the word `nature' was taken by authors on Right contradistinguishes nature from reason. Taken in this way, nature was understood as the complex of animal inclinations. This meaning is found, for example, when we say: `Reason teaches us to conquer the fear of death; nature is always fearful of death.'

899. The second meaning is used to indicate an isolated individual, cut off altogether from his fellows and left to himself. In this sense, nature is the opposite of communal living. A person in this condition is not strictly speaking deprived of reason, but he is cut off from all association with his fellows, and with all society - which is much more serious.

900. Finally, the third meaning is that which contradistinguishes nature from society. In this sense, the human being in nature is not only furnished with reason and morality, but also with relationships towards his fellows relative to whom he must use his reason and observe the moral precepts.

901. We take the word `nature' in this final meaning in our examination of the rights which exist between people in the state of nature. It would seem that in wanting to define such rights by forming for ourselves a more abstract concept of the state of nature, we run the danger of losing ourselves in a mass of useless subtleties which lead only to harmful mistakes.

902. The sophist Rousseau took the word `nature' in the first of the three meanings. Consequently, natural Right, from which he excluded the effect or requirement of reason and morality, was for him an animal, not a human right. It was a Right that was not Right.(222)

903. The second meaning of the word `nature' expresses the concept of what is innate in the human being (cf. 283). It includes, therefore, his rational as well as his animal part, but excludes his relationship with other people precisely because they are not contained in the simple concept of the humanity of an individual. But holding strictly to this concept of human nature would mean leaving aside all external things as well as other people. Those professing this meaning of `nature' would also have to reject all human actions that do not begin at birth.

904. In this case, no effective natural Right would be possible. Only its potentiality would remain or, as we have already said, certain roots of rights (cf. 873).

905. This would also entail a very demanding and tiring kind of abstraction without any consequent benefit for knowledge or human life.

906. Most writers of this class do not, however, strictly maintain the abstract human nature on which they have based their Right. They are satisfied with the individual human being, surrounded by beasts and material things, but cut off from his fellows. The system of natural Right arising from a method of this kind is not animal, but totally selfish.

907. In this system, the human being taken in isolation is granted an absolute ownership together with strict, inflexible rights, simply because these rights are established without the least regard for other co-existent human beings. Rights conceived in this fashion are inevitably false because they are not derived from human beings as human beings are and must be. These are not true human rights, which are moral relationships between several individuals, not simply qualities inherent to the nature of the individual. True human rights spring from common human nature existent in each human being. On the one hand, therefore, this method endeavours to promote the derivation of rights; on the other, to eliminate that relationship in which right consists.

908. Some comment is needed here.
There are authors who maintain that they consider human beings in relationship with their fellows, and derive the nature of rights from this relationship. However, having begun their treatises in this admirable way, they go on to propose the crudest and most inexorable right of ownership which they declare lawful even while admitting its essentially immoral character.(223)

909. These authors are not consistent. Ownership which remains intact even when detrimental to other people can be derived only from the suppression of intellectual and moral relationships between the individual to whom ownership is attributed and his fellows. Ownership of this kind can only be understood without reference to these relationships. It vanishes, considered as right, when the relationships emanating from human nature are reinstated as part of the calculation from which they had been unlawfully excluded.

910. One meaning given to the word `nature' depends upon considering it in opposition to freedom. Necessary activity is attributed to nature; and the human will itself, if it acts necessarily, is called nature.(224)

911. Consequently, that which pertains to art, considered as an effect of free human activity, is contradistinguished from nature, as we see in the following phrases: `in poetry, nature is more effective than art', `as a speaker, he is too artificial and insufficiently natural', and so on.

912. Society is presumed to be a work of human freedom, and people are presumed to form societies because they freely wish to do so. It cannot be denied that any society whatsoever is bound together by means of willed acts.

913. According to this meaning, the state of nature came to be called that in which the many inhabitants of the earth were found together but not yet associated amongst themselves. Indeed, my co-existence with others, granted that they are not my descendants (as Adam and Eve are not) is not the effect of free will on the part of any individual. It is therefore a condition posited by nature. This is the natural state in which I normally consider human beings when I ask: `What Right has one human being towards another in the state of nature?' and more particularly: `What is the nature of the right of ownership in the state of nature?' (225)

914. Before replying to this question, we have to justify more adequately the sense we give to the phrase `state of nature'. What we have said so far justifies it relatively to the first two meanings of the word `nature'. The first meaning is confined to expressing an animal condition from which no right can be derived; the second, by isolating human beings from one another, also makes Right impossible (Right can only be furthered on the basis of mutual relationships).
The third meaning on the other hand retains both human beings and their intercommunication; only the positive laws of civil society are excluded. Given the totality of natural conditions,(226) this third meaning expresses the rights proper to each individual.

915. But we have to defend the suitability of understanding the phrase `state of nature' in this sense against other meanings, which go to the opposite extreme to those we have already criticised. While the first two meanings detract excessively from human beings in nature, the other meanings, of which we are about to speak, grant them too much.

916. Some writers, in opposition to those about whom we have spoken, maintain that domestic society should be included in the state of nature. The bonds of this society are natural in so far as only the inclinations of nature, not free will, seem required to bring them about.

917. Other writers, for a similar reason, want the state of nature to include civil society taken in general. According to them the human being, drawn and led by nature itself to found civil communities, is naturally social [App., no. 5].

918. Finally, others go so far as to consider that the various forms of government and even positive legislations pertain to the state of nature. According to these authors, human beings exceed the state of nature only when they do evil; all governments, and even the laws which appear as determinations willed by human beings, are simply the development of the natural human being. Like a great tree, which grows from a humble shoot to become a sturdy trunk and rich foliage without losing its nature as a tree, human beings do not abandon but extend and perfect their state of nature when they use and develop their faculties through associating with one another in so many different ways. C. L. Haller employs something akin to this kind of reasoning.

919. We do not want to argue about the use of words, and we willingly grant that in so far as anything is reasonable for human beings it is also natural. It is also true that society is a natural development for humanity. We simply reply that in the treatise on rights it is a useful part of method first to consider human individuals as co-existent but not yet associated, and then as associated; we examine separately the rights resulting from relationships between individuals and individuals, and then those proper to members of a society. We maintain that the state of individuals and the state of associates have to be suitably distinguished, and that this can be done conveniently by using the phrase `state of nature' for the former and `state of society' for the latter. People are first born as individuals, and then become members of artificial society; they cannot be considered as associated in society before they have consented to its existence. Association only begins with an act of one's own will.

920. Those who maintain that family bonds are formed solely by nature have confused the physical juncture and gregarious living common to animals with the juncture which is the characteristic of society proper to human beings alone. Society is not mere physical togetherness, but a union of intelligent wills aiming together at the common good. This is the form of society; physical togetherness provides only a material rudiment of society.(227)

921. The distinction we make between ownership and the right of ownership is somewhat similar(228) to that between physical togetherness and society.

922. Union, nothing more, is included in the concept of ownership or possibly unification of something with a person in such a way that the person believes the thing to be his, to pertain to himself as an appendix of himself.

923. For the person to be persuaded of this, a physical and intellectual juncture between the thing and the person is sufficient. The moral bond in all its fullness is still not necessary.

924. The existence of the person(229) and something useful, and their mutual bonding with the ties we have indicated, is sufficient to place in being the first two junctures, physical and intellectual, and to allow the person to believe that a given thing is his.

925. If there were only one individual on the earth, therefore, ownership would exist. Everything that the person intended to use and enjoy in perpetuity would be his.

926. The right to ownership would not, however, exist, because this right involves in addition a relationship with other people which consists in their moral obligation to respect the ownership of those who have it. Ownership is elevated to the dignity of right only in so far as moral obligation seals and informs it.

927. The distinction between ownership and the right of ownership enables us to explain how a great number of authors on Right have formed an absolute and totally unlimited concept of the right of ownership. Zeiller says:

928. After that, it is not surprising to find the same author maintaining, as we have seen, that the harmless use of what belongs to other people is an injury to right if such use is against the will of the owner, even though the owner's will is evidently irrational and insane. It is very clear that authors like this confuse ownership with the right of ownership.

929. Civil codes normally put a limit to the right of ownership by defining it as `the right to dispose of and enjoy what is owned in any way whatsoever provided the use made of it is not forbidden by laws and ordinances'.(231) These laws and ordinances are intended to prevent owners from using what they own in a way injurious to others or to the commonalty, but can do this only by acknowledging that there is no right to such use. Legislators, therefore, reveal in practice that they share the opinion we defend (ownership as a right has limits), although they do not say so directly.

930. But perhaps the legislators decree laws arbitrarily, or with the tacit consent of owners? Maintaining that positive laws arise from caprice would be to deny their quality as law. If human prescriptions are to be laws, they must be reasonable and just.

931. It is gratuitous to maintain that in the formation of laws on ownership, owners have tacitly renounced the fullness of their ownership. The renunciation of the right to ownership, or of part of it, should be expressed. If owners keep silence, they approve common sense which acknowledges that ownership receives limitations from reason and from morality. It is certain that owners would not have allowed their ownership to be curtailed if they were all persuaded of their right to unlimited ownership; if someone had allowed this, he would have performed an act of generosity, which would not be obligatory for all other owners.

932. We can see this better if we consider more carefully the inner feeling of legislators and in particular - to avoid interminable quotations- that of Roman legislators whose work has provided the source of all our modern legislations.
In Justinian's Institutes under the title The division of things and how their dominion is acquired(232) we read:

This is sufficient. I am not quoting this passage in order to discuss problems that may arise from it, but simply to present the feelings of its authors about the claim to the so-called unlimited nature of ownership.

933. First, we must note that the text is not a law, but a doctrinal exposition; it does not express the will of the ruler, but the reason for things. The language is that of natural Right, that is, the Right of nations.(233)

934. According to this rational Right, therefore, limits are placed to private ownership. But the reason this passage of Justinian disallows appropriation of certain things by human beings is the respect that we should have for our fellows. We are forbidden to take possession of the foreshore, which has to remain public, or to defend it forcefully although we could use it for our own purposes and advantage. Private ownership must observe certain responsibilities of equity and benevolence towards others if it is to be just and moral. If not, the good sense of nations will refuse to acknowledge it as a genuine right.

935. It is true that private citizens are permitted to appropriate the banks of rivers, but only on condition that ships are allowed to draw up to them, and that mooring to their trees and unloading of cargoes is permitted. In a word, navigation is to be free. A right of ownership over beaches is acknowledged, therefore, but it is restricted by the rational Right accepted by all nations. The owner must respect other living people.

936. The opinion held by Roman jurisprudence is clear: no right of ownership is conceived as a crude faculty for untrammelled use of what has been appropriated without reference to others. The right of ownership has to be founded in certain moral relationships with other human beings.
Separating right from morality under the pretext that morality and natural right are different things, means sacrificing the truth to abstract knowledge which, of itself, evaporates. For myself, I would prefer to hold to the uniform feeling of people throughout the ages; I would prefer the truth of Cicero's affirmation about the proper, original essence of human right, which he expressed in a manner worthy of the light of Christianity: `The foundation of RIGHT is found in the inclination we all possess by nature to love our fellows.' (234) This is the constant opinion of a man who had drunk at the sources of all ancient philosophy, who held first place in one of the greatest civilisations, who was an excellent jurist and a most eloquent and moving interpreter of human nature.

937. The limits of mutual ownership have provided some of the most difficult and delicate questions of jurisprudence amongst private individuals as well as nations. It is these questions which witness to the universal, constant opinion that the right of ownership must have moral limits. If moral limits did not exist, there would be no litigation to determine them.

938. We have seen that according to Justinian the sea is free, and the foreshore is public. He drew this limitation of the right of ownership from the human, moral principle that the common good of free navigation should not be impeded. In modern times, this right over the sea has been restricted by jurists and it has been almost universally recognised that the part of the sea around coasts belongs to the country whose coasts they are.

939. The extent of this dominion has, however, been disputed. The lawyers' reply is that it extends as far the sea can be defended, that is, within cannon-range.

940. This reply shows that the question has not been considered as one of private ownership, but as of sovereign dominion. There has never been any argument about the right of the inhabitants of a region to come and go as they please, and to use the sea where it touches the shore provided the government does not forbid them.

941. The reply is equitable precisely because there is no question of private ownership, but of sovereign dominion. It is necessary for the ruler to be able, normally speaking, to defend any place in order to say it belongs to his dominion.

942. Nevertheless, many modern States have abandoned such a decision. Denmark lays claim to the sea for seven leagues around Iceland; England wants to prevent herring fishing by the Dutch within 30 English miles of the North Sea coast. Certain stretches of the sea have been declared the exclusive dominion of a nation: the Irish Sea between England and Ireland has been claimed for the British Empire; the Hellespont, the strait of the Bosphorus, the sea of Marmara, the Aegean and the Black Sea for the Ottoman Empire; the Strait of Messina for the King of Naples; the Zuiderzee for the Low Countries. the Sound and the two Belts for Denmark, and so on. The question of dominion over the sea by Venice, and the English dominion of the sea around its shores, has been much debated in the schools. There was even question of the exclusive right to navigate certain seas for trade. The Hanseatic cities complained bitterly about Dutch vessels landing at Bergen which until that time had been visited only by Hanseatic boats; the Portuguese and the Spaniards were in conflict over mutual claims to exclusion from seas they had navigated and lands they had discovered. This dispute was settled by the supreme Pontiff in 1506.

943. It is clear therefore that in the common feeling of nations the right of ownership is often limited by circumstances, all of which are reduced finally to a moral principle, that is, to appropriating things in a way that preserves due respect for others.

944. On the contrary, there is no limitation to ownership when it is a fact of human nature.

945. This extraordinary fact of human nature called ownership consists in the inclination and the power possessed by the human person for uniting to himself, with all the forces at his disposition, whatever he considers as good. The person immediately thinks of these things as parts of himself, as his own; this act is called appropriation.

946. If appropriation consists in the act with which the person makes things part of himself, in his feeling and persuasion,(235) we should not be surprised if ownership shares in the very characteristics of person.

947. These characteristics are principally: 1. exclusiveness: person, to whom incommunicable being is attributed, is essentially exclusive in its relationship to everyone else. Consequently, one person's ownership also excludes all other persons from participation.

948. 2. Perpetuity: person is identical, unchangeable and perpetual. Consequently, ownership also supposes perpetuity, that is, what is mine is always mine; it forms part of me for as long as I am.

949. 3. Unity and simplicity: person is one and simple. Consequently that which belongs to person also shares in its prerogatives of unity and simplicity.

950. It follows that in ownership, which includes the right to innumerable different actions, all actions depend upon a single, extremely simple concept, the concept of ownership, in which they are all included.

951. Again, we have here the explanation why legislators and philosophers consistently conceive and speak of ownership as a very simple concept. Analysis reveals innumerable elements of ownership none of which, however, taken separately is ownership. Ownership as such is one, simple and indivisible, just as person is. As we have already noted, divisibility does not pertain to ownership as a fact, but to ownership as right.

952. 4. Unlimitedness: person is freedom and cannot therefore be limited in its activity. It would be a contradiction to say that what is essentially free could at the same time be bound. This characteristic is also communicated by person to ownership, which involves the faculty of unlimited activity.

953. This explains the opinion of those who, without separating ownership by right from ownership in fact, attribute to the latter what is proper to the former. As a result, they maintain that the human being can do what he likes with what is his: he can abuse it, prevent others' from using it harmlessly, destroy it without any motive other than caprice, make it harmful to others and even to himself. It is certainly true that person has the physical faculty to do this; person feels this faculty, and such a feeling relative to the instrument it uses and abuses for this purpose is called ownership. But this, according to me, is only the fact of ownership, not the right.

954. But does ownership considered as right retain anything of the four characteristics we have mentioned? Considered as right, ownership retains a great deal of the nature of ownership considered as fact. The former is simply ownership as fact subjected to the rule of moral reason, which prescribes that `ownership in fact is not to be used in such a way that the person using it harms others without any advantage to himself.'

955. But how much does the right of ownership retain of the characteristics of ownership in fact? It retains all the characteristics allowing it to act without falling into the immoral activity already indicated in the proposition: `Ownership must give way as soon as it is no longer of use to the person possessing it, and harms others either by impeding their good or harming them.

956. Note that what we have said does not eliminate the line separating jural justice from benevolence, although incomplete understanding of what we are saying here could give that impression. On the contrary, our position is that this line is to be maintained constantly as an extremely important, true and necessary boundary. Our problem is entirely jural: we want to establish the limit of right, that is, of right in its true, proper meaning.

957. The truth is that what we have said shows the inadequacy of the boundary normally drawn between jural duty and ethical duty.

958. We shall repeat what has been said, and use this opportunity for reducing to a brief formula the whole of the teaching already proposed.
When we sacrifice the smallest good that is ours by right for the sake of someone else, we act benevolently. We are not bound under any jural obligation to make this sacrifice either to spare the other person from the greatest possible evil or to procure for him the greatest possible good. Under the moral law of mutual benevolence there is nevertheless [App., no. 6] an obligation to do this.(236) There is always damage to right, always some violation of the moral-jural law, when we force others, as a matter of fact, to make some sacrifice for us or to cause harm to third parties. This is true however insignificant the sacrifice or harm may be, or however great the evil or good that we want to avoid or procure.(237)

Knowingly preventing good to others or causing them harm with actions that bring us no advantage whatsoever, but which we exercise under the pretext of using our ownership, means acting injuriously, invalidly and vainly. This kind of activity is not sanctioned by any moral law. Consequently there is no obligation in others to respect either the freedom of these actions or the ownership on which they rest.

Acting in a way which avoids harm to oneself or obtains some good, without harm to others or impediment to their good, does no injury to another's right, no matter how ownership of fact is employed. Such activity is always jurally lawful and valid, and can sometimes be upheld by force.

959. The second of these four principles flows from the first; the fourth from the third. Taken together, they express the limits of the obligation of right and of benevolence, the limits of ownership and of the right of ownership.

960. Separation of ownership as a fact of human nature from the right of ownership immediately clarifies what still remains to be done in our proposed analysis of the right of ownership. The preceding distinction also shows us the way forward in this analysis. It provides the extremely important corollary that the right of ownership can be considered from two points of view: in so far as it retains the nature of ownership, and in so far as it moves away from it.

961. This distinction is the first step in the analysis of the right itself which now stands divided in two: one part springs from the animal-intelligent nature of the human being, the other from the human being's moral nature. We have to consider both these parts and submit each of them to further analysis.

962. Ownership does not change its nature when it becomes a right, but retains its four important characteristics of exclusiveness, perpetuity, unity and unlimitedness (cf 946-952).

963. The same thing can be expressed as follows: my right of ownership over anything ceases when this right is no longer exclusive, perpetual, simple and one, and unlimited.

964. The fact that this right is one and simple, as person is, does not prevent its analysis. Person itself in its simplicity acts in multiple ways as we shall see in examining the act of appropriation.

965. Through this act, free personal force takes seigniory over something. In doing this, the person does not merely apply his spiritual force, with which alone he could know, desire and want the thing in question without producing any real effect on it; the thing would remain unthreatened, as it were, by any real action. The person, therefore, uses his corporal forces to dominate the external thing and to dispose it for his own use or at least he prepares himself for this. Bodily forces have necessarily to intervene in order to ensure benefit from a bodily thing. And this is what brings about possession,(238) occupancy, appropriation.

All the person's forces are therefore applied to the thing he wishes to occupy in so far as these forces are necessary. He applies whatever is needed to draw all possible advantage to himself from ownership of that thing.

966. Personal force is first exercised over the thing in order to enjoy it.

If, however, enjoyment is not immediate, the same force is applied to cultivating and improving the thing to produce the desired fruit.
Thirdly, personal force is applied to ensure tranquil possession of the thing, and defend it.
Fourthly, force is applied to drive off aggressors who wish to take the thing into their own power.
Fifthly, it is applied to regain repossession of the thing if it has been taken.
In the sixth place, it is applied in order to obtain compensation for an injury or harm suffered through aggression, and through deterioration or total loss.
Seventhly, in order to extract a guarantee or pledge of security from wayward people threatening what is owned.
Eighthly, in order to cede to others wholly or in part dominion over the thing.

These are the ways in which the right of ownership is exercised. They consist simply in the use of our personal force, with which we make a thing our own through occupancy, and dispose of it in such a way that all impediments to our free use of it are resisted.

967. All these acts, or different ways of disposing of things, possess perfect unity in personal force which works in us all but in different measures according to need. The aim is always the same: there is no difference in the nature of the agent, only in the circumstances which modify the agent's action. Considered under this aspect, the right of ownership is one; the eight ways of exercising it are not eight different species of rights, but properly speaking modes, actions, applications, functions of right itself.

968. Ownership as a fact is brought into being by the person furnished with all the forces he finds at his disposition in the human nature adhering to him. Intervention on the part of the intelligence is provided only in so far as this is necessary for apprehending the thing in question. This constitutes the intellectual-physical bond.
Ownership becomes a right when the intelligence reflects on the fact of ownership and begins to consider it from a moral point of view, submitting it and restricting its title(239) to the laws of morality revealed in human relationships, that is, to the law forbidding others to be harmed. In a word, the right is formed by the moral bond.

969. In simple ownership the subject dominates; in the right, the subject's natural activity is submitted to the moral exigency of the object.

970. The subject, one and simple as it is, produces ownership as a unique, almost `compact' thing. When this ownership is then considered in relationship with other people, it is multiplied and transformed into as many different rights(240) as there are special relationships with these people and different modifications of ownership resulting from the relationships in which it is considered.

971. The multiplicity of rights over things does not arise, therefore, from the nature of ownership, but from the multiple acts which the moral reason exercises relative to ownership by converting it into right. We have said that a very simple act is a sufficient object for constituting a right.(241) This multiplicity is proper to rights precisely because rights are forged by the reflective reason which has power to abstract, analyse and consider the thing under different aspects. In a word, it can render multiple that which in its own reality is one.

972. As a result, what is called `right of ownership' `can be considered almost as a complex of innumerable rights', as Zeiller says.(242)

973. The eight functions of the right of ownership that we have listed in the preceding article do not in reality, therefore, split ownership. In each of these functions ownership is exercised in its entirety. The presence of many functions arises solely because ownership is exercised in several modes, not because it is divided into many parts.

974. The same cannot be said about the rights enclosed in ownership, which we must now enumerate. We consider each one of these as an exercise of a part of ownership, not of all ownership. They are parts of ownership which stand on their own, separate from one another.(243) Here multiplicity arises from the moral reason which puts various real limits, according to circumstances and accidents, on ownership itself or on its exercise.

975. Ownership, together with its exercise, is divided and limited, like right, in two ways. First, it is limited when there is a right to exercise some, but not all the acts of ownership; second, it is limited when the right to exercise acts of ownership is relative to some persons, but not others.

976. The complex right of ownership can be divided into three groups relative to the acts with which it can be exercised. They are
1. the right of predisposition;
2. the right of use;
3. the right of naked ownership, or quite simply of ownership.
These are still complex rights, however, which we shall have to call `groups of rights'.

977. 1. The right of possession is foremost among the rights of predisposition.

978. Relative to possession, we must make a distinction similar to that which we have made in speaking about ownership: that is, possession is one thing, the right of possession is another.

979. Simple possession is only a fact which consists in retaining something either through one's own forces or through the forces of others acting in our name as though the thing were our own. This fact comes about through the intellectual-physical nexus.

980. But we can hold something as our own in good or bad faith. If we know that it is not our own, but intend to keep it as if it were, we are possessors in bad faith. In this case, possession is present, but not the right of possession or jural possession.

981. If, however, we think in good faith that the thing is our own although it is not, we have the right of possession, but not the right of ownership.

982. Others who know that the thing is not ours have a corresponding jural obligation to respect our right of possession and our good faith.(244)

983. The owner himself cannot take the thing away from us without first proving his title of ownership.

984. If this title is proved incontestably, and we still will not cede, we have lost our right, and only retain simple possession. The thing could now be taken from us by the true owner by force because we would no longer be in good faith.

985. But how do matters stand when no jural and incontestable proof can be given to the possessor, although the owner has no doubt about it? In this case, the owner could repossess what is his, but on condition that he did so without harming the possessor in good faith. In this case, the owner's right to claim the thing as his own is limited by the moral-jural duty of not causing harm to an innocent person, even for the sake of vindicating his right.

986. What if the proof of right is doubtful on both sides? According to rational Right, there would an obligation for both to discuss the matter in a friendly way and come to some compromise enabling the thing to be divided in proportion to the doubt. If the thing is indivisible, some other equitable compromise should be made.

987. Other rights of the possessor in good faith can be seen in the treatises on the matter and in the codes of civil law, whose dispositions normally follow those of rational Right.

988. 2. The complex right of use includes all rights to the enjoyment of consumable goods by consuming them, to the use of non-consumable goods, and to usufruct, that is, the right to bring things to fruition for oneself.

989. The first of these three rights became the centre of a great discussion: is this right distinct from the right of substantial ownership of a thing? It is true, of course, that a person can have the right to consume the food he lives on without owning it. Ownership which, in its fullness, would give him the right to alienate food and do what he liked with it, is not necessarily connected with the right to food and drink. This can be a special right, that is, a part of ownership rather than entire ownership. The other two rights of use and usufruct are sufficiently dealt with by the relevant authors.

990. 3. The complex right of naked ownership, which is used as synonymous with `direct ownership' (to distinguish it from indirect ownership or ownership in use, applicable to the usufructuary in the cases of land) and is called simply `ownership'. The right of ownership (naked, or direct) is normally concerned with what relates to the substance of anything.

991. Strictly speaking, however, this is not the case. Substances do not belong to human beings, who can neither produce nor destroy them, but to God, their Creator.

992. Nor can we say that direct ownership is related to the substantial form of anything. This can clearly be seen in the case of a direct owner who could not change a vineyard into a pleasure garden without damaging and violating the right of the person holding the right of use over the vineyard.

993. Direct ownership, therefore, is simply a complex of rights which limit the right of ownership of the person called the `owner in use'; indirect ownership is simply the complex of rights limiting the right of ownership of the person called the `direct owner'. The complex right of ownership is, therefore, divided. The rights which compose it are divided between two owners, and divided in different ways in accordance with what results from the origin of such a division of rights.

994. Sometimes, the owner in use is also obliged to certain provisions relative to the direct owner. This occurs when, for example, the origin of the division we have mentioned lies in contracts dependent upon conveyancing, hereditary tenancy, emphyteusis, land rents, and so on.

995. One of the modes and titles of acquisition of ownership of material things is accession, which may be natural, artificial or mixed.

996. Accession is the name given to everything that arises from the thing, or is joined to it, without its being given to the owner by others.

997. If the right of ownership over a thing is simply divided between the direct owner and the owner in use, accession itself, which is concerned with non-fungibles, is divided between the two owners in the same way as the right of ownership over the principle part of the thing.

998. But the two owners, besides sharing as we have said in the right of ownership, may also have other rights and obligations arising either from the contract which originally stipulated the division or from other agreements. For example, the owner in use may have to pay a share of his produce as a quota. In such cases, prestation increases as the amount of land increases through accession.

999. The same is to be said every time the division of ownership takes place through a contract by which the person having full ownership over land transfers its dominion of the use for a suitable consideration. The contract can in fact only refer to existing land; in other words, that which is united through accession either belongs entirely to the direct owner, or gives him the right to receive from the owner in use some recompense proportioned to the return on the new land. But we shall continue elsewhere this analysis of the right of ownership.(245)

1000. Jural reason, as we have said, also limits ownership from the point of view of persons. For example, someone receiving an article in deposit has the right to look after it. This is classed amongst rights of predisposition, as we call them. But the right to look after a deposited article received from its owner is relative to other persons, not to the owner himself who at any moment can demand the return of what he has deposited.

1001. In the same way, a right entailing a pledge (which also pertains to the class of rights of predisposition) is limited according to relationships between determinate persons. The person holding the pledge has the right (and the obligation also) to take care of it relative to any other person except the owner himself, to whom it must be returned when he liberates it by paying his debt.

1002. Examples may be found in predial servitude such as pasture for cattle, cutting wood, fishing, hunting on others' land, and so on. The owner has full dominion relative to all other persons except the one who has the right to the predial servitude we have indicated. This example is also relevant to the second group of rights, that of rights of utility, into which ownership is subdivided.

1003. Finally, we give an example taken from the third group of rights, that of naked ownership. Here we can examine the right of co-ownership. Let us imagine that the naked or direct ownership of a plot of land belongs to several persons. Each has the right to such ownership without limitation relative to all persons outside the group which owns the land; at the same time, each one's ownership is in reality limited relative to his co-owners. This limitation comes about through acknowledgement of the same ownership in them, and through their being allowed freedom to exercise it equally with him. But this analysis also will be continued elsewhere.

(222) Cf. SP, bk. 1, c. 4, for my opinion of Rousseau's system of natural Right [App., no. 4].

(223) As we have seen, Zeiller, an otherwise excellent author, agrees that right involves some relationship with other human beings. In a note to his Manuale, he expresses the matter very well: `If only one individual existed on earth, the idea of ownership, which always has reference to the exclusion of others, would not exist. In the literal sense of the phrase, we do not have "a right to anything", but only a right to exclude others from it in so far as it belongs to us' (Note to §77). Here Zeiller sees that right supposes the faculty to exclude, but does not observe sufficiently that the right to exclude arises from the moral obligation of others to allow themselves to be excluded. If this obligation did not exist, our right would no longer exist.

(224) The human will sometimes acts spontaneously but necessarily, and sometimes freely. Consequently, metaphysicians have distinguished two kinds of willed acts which they call will as nature, and will as will. - Cf. St. Thomas, S.T., I, q. 83, art 3, ad 4; III, q. 18, art. 3.

(225) What has been said in this article does not prevent the division of a treatise on rational Right (after the distinction between individual Right and social Right) into two subdivisions of individual Right called natural Right and contractual Right, that is, willed right. This is precisely the division of rational Right proposed in the Introduction to this work. In this division, the title `natural Right' does not mean `the Right of human beings in the state of nature' but `the Right that springs from the elements of human nature, not from acts of free decision on the part of individuals'. Natural Right, considered in this way as a part of individual Right, is not subject to the defect we have noted in excessive abstraction. The basis of our natural Right is not an hypothesis concerned with isolated individuals, but supposes that human beings are already in full communication with one another. Our single reservation is that in the accumulation of rights possessed by people who co-exist and communicate with one another in a state anterior to civil society (state of nature), we distinguish rights which have their TITLE in human nature itself from those whose TITLE depends upon agreement, that is, upon a contract established between human beings as a result of free acts of will. In my Society and its Purpose, I have called the whole of individual Right, `natural Right'. It can indeed be called this; what is necessary is that we state clearly the meaning in which we use words.

(226) Note carefully that we are speaking about what is given by nature, not by human free will, and that nature forms the conditions in which natural rights are found, not the rights themselves. In our system acquired-natural rights often have as their cause and title a free action on the part of the human being who acquires them (cf. 293 ss.). The condition in which this person finds himself, however, is natural, not artificial. We call this natural condition the `state of nature'. According to us, therefore, the natural condition which forms the state of nature is the individual in relationship with other individuals. The individual state of the human being is the state of nature, a primitive condition which changes with the formation of society. At that moment, several individuals make up a single artificial individual normally called a `collective person'. This is a new condition and a new state, the state of society as opposed to the state of nature.

(227) Cf. the notion of society developed in my SP, bk. 1.

(228) `Somewhat similar', not `equal', because animality is sufficient for gregarious living despite the lack of the intellectual and moral element. To form society, the intellectual element is also required, although nothing more; for the formation of ownership, both animality and the intellectual element are required; for the formation of right, however, the moral element is needed more.

(229) Person is not present in animals. External things are joined to the animal feeling by means of a physical or animal bond, but the animal knows nothing of its own self, does not think, does not believe anything. The SELF attributed to animals is bestowed upon them by our imagination, nothing more. - If, therefore, no MYSELF and no owner exists, there is no ownership and nothing of one's own. Ownership (and hence a fortiori right) is not found in animals; only a juncture of feeling is present which simulates human ownership. - This observation will be very clear to readers who have accepted the concept of animal which we developed at length in AMS.- Note finally that the first of the two intellective acts forming the physical bond (cf. 386) is sufficient to form ownership (but not the right of ownership). The second element could be lacking provided that the intellect posited no contrary act by judging that the thing in question was not lawfully occupiable. In this case, the individual would be conscious that the thing is not his and that he would not have ownership of it.

(230) §80.

(231) Albertine code, §439.

(232) Bk. 2, tit. 1.

(233) The right of nations is still a natural Right according to Justinian. His concept of it is expressed as follows: `That which NATURAL RIGHT has established amongst all human beings is equally preserved amongst all peoples. It is called THE LAW OF NATIONS, and all nations use it as such' (1, 2).

(234) Nam hae nascuntur ex eo, quod natura propensi sumus ad diligendos homines, QUOD FUNDAMENTUM JURIS EST (De Legib., 1, 15). Cicero touches the true principle of Right with this principle. As we have said, it consists `in the obligation that others have of not causing us harm' by disturbing our freedom and our ownership. This obligation is nothing else than a branch of our duty to love our fellows, a duty imposed by nature. Certain modern authors vainly claim to have discovered a Right without any relationship whatsoever with morality. Morality will always be the sole source of Right.

(235) Note, however, that if a human being knows his fellows and reflects on the moral respect due to them, he cannot acquire this persuasion of unlimited ownership. The ownership of which we are speaking is a fact which takes place when the human being is either cut off from his fellows (cf. 846) or is so preoccupied with himself that he does not reflect on the moral exigencies arising from this presence.

(236) This principle was known to the ancients. - `One's own utility is to be conserved', says Cicero, `if it causes no harm to others. You know this very well, Chrysippus. The runners in the stadium have to make every effort to win, but without committing a foul on their opponents. Life, too, is like that. Without doing evil, anyone can try to use what is his own; but he has no right to harm others in doing so' (De Off. 3, 10).

(237) Cicero expounds this principle magisterially in De Off. 3.

(238) We have already distinguished possession from occupancy in this respect: possession means retaining the thing with the intention of having it as one's own. This is not sufficient for acquiring the right of ownership over something: a thief intends to hold and use as his own something that he has stolen. We rightly have to distinguish between possession in good and bad faith. Occupancy, however, is understood as a title which lacks nothing for producing right of ownership over something (cf. 483).

(239) The `title', because it is the title which must be moral in the establishment of a right, as we have noted elsewhere. Immorality, which does not infringe the title of right, does not destroy right.

(240) These rights are all of the same species, as we said (cf. 967). But species itself takes two principal modes (cf. OT., 648-652), that is, the full species and the abstract species. Both species have many variations. When this scheme is applied to rights, the eight functions of the right of ownership that we have enumerated are seen (cf. 966) to be variations of the species (full or abstract) of the right itself. The eight rights, therefore, do not differ simply as one individual to another, but as variations of the same species. The variations of the species are repeated both in the mode of the full species and in the mode of the abstract species.

(241) Cf. 224-237.

(242) §77.

(243) The division that we attribute here to the right of ownership is not concerned with the essence of this right but with the quantity of its exercise. Hence the logical schema which we have used in ftn. 240 cannot be applied to it.

(244) The right of possession brings with it further obligations on the part of others, for instance, the obligation of restoring the thing to the just possessor. Busembaum, followed by St. Alphonsus, writes: `When goods are certain, they have ordinarily to be restored to the just possessor from whom they were taken or on whom damage has been inflicted, even if this person is not the immediate owner. What has been taken therefore from caretakers, holding agents, carriers, guardians or administrators must be restored to them, not to the owner. Otherwise, some harm would be done to them by depriving them of their right to possession, detention, guardianship or utility. Moreover, damage and pecuniary loss must be compensated. Exceptions to this rule are: 1. if they have no interest in the matter so that no restitution has to be made to the owner for damage or loss of good name; 2. if it is probably thought that they themselves were to carry off or take away the thing with damage to the owner. - Again, if something has been taken from a child, ward, madman, wife or religious who is not entitled to administer what has been taken, restitution is often to be made to the father, guardian, husband or superior' (bk. 3, 596).

(245) Bk. 3, c. 5.

Book 3

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