We shall now pass on to the second rule of morals of individual man; this rule protects not the life but the property of the human person, whatever his social group, against unlawful attack. The first problem we have to tackle is to know the causes that decided the laying down of this rule. How are we to explain this respect that the property of others inspires—a respect that the law endorses by means of penal sanctions? How does it happen that things should attach so closely to the person that they share his inviolability? It would demand long research and method to deal with such a question, which is simply the origin of the right of ownership. But some outstanding points at least can be fixed.
Let us begin by studying the most usual solutions. The problem is to know what the bond consists of that links objects exterior to him with the person, objects which of course do not form part of himself. How does it happen that a man may dispose of certain things as he may dispose of his body—that is, to the exclusion of all else, since it is the lawfulness of this exclusion which makes the encroachments of others unlawful. The simplest and most radical answer would be that this bond could be resolved into elements and this means there was some element in the nature of man, some constitutional peculiarity which logically implied the allocation and appropriation of certain things. The notion of property could be deduced from the very notion of human activity. We have only to analyse this activity to discover why man is and must be an owner of property. The theory has been held by many thinkers that the idea of labour meets the case. In fact, work is the work of man: it displays the abilities of the individual and is no more than the person in action. Therefore it has a right to the same sentiments as those inspired by the person. On the other hand, it tends by its nature to be externalized, to be projected beyond itself, to be embodied in exterior objects whose whole value it creates. Here then we have things which are just human activity in crystallized form. There is no need, then, to wonder how they become attached to the person whose product they are, since they derive from and form part of, himself. He owns them just as he owns himself. Here we have not two different and heterogeneous terms, between which a third has to be found, to unite them; there would be a complete sequence between the two, and the one would be only a particular aspect of the other. “Nothing is implied in property” says Stuart Mill “but the right of each to his (or her) own faculties, to what he can produce by them, and to whatever he can get for them in a fair market.” (Polit. Econ., Vol. I, 7th Ed., p. 270.)
The postulate on which this theory rests seems so self-evident that we can find it at the basis of the most varying systems: the socialists invoke it just as the classical economists do. Yet it is far from being a truism. Let us take the proposition in itself, without considering the conclusions to be drawn or the application that is made of it. It is said that we should be free to dispose of the fruits of our labour because we are free to dispose of the talents and energies involved in this labour. But are we able to dispose of our abilities with such freedom? Nothing can be more debatable. We do not belong to ourselves entirely: we owe something of ourselves to others, to the various groups we form part of. We give them and are bound to give them the best of ourselves; why should we not be equally bound (and with even better reason) to give them the material products of our labours? Society takes years of our life and on occasion, requires our life of us. Why should it not be justified in requiring of us these external belongings of ours? The cult of the human person in no wise excludes the possibility of such obligations. For the human person whom this cult concerns is the human person in general; and if, to realize this ideal, it were necessary for the individual to yield up in part or entirely, the creations of the work which he had toiled over, this act would be a strict duty. Thus, in order that property be justified, it is not enough to invoke the rights that man has over himself; these rights are not absolute but limited by the claims of the moral aims, in which a man has to co-operate. It must therefore be made quite clear that these claims demand that the individual should dispose freely of the things he produces. In any case, there are many circumstances in which a man’s right to free disposal is withdrawn: that is, when he is not able to make effective use of it, when he is not of age, when he is insane or when he is a confirmed spendthrift. This means that the right is subject to circumstances and is not a matter of course.
Let us go further, and accept this postulate. In order to justify property it should, to begin with, be quite differently framed. Property, in fact, is not exclusively acquired by labour, but may be derived from other sources:
(1) by exchange, (2) by donations inter vivos or legacy by will, (3) by inheritance.
Exchange is not labour. True, if it is done with strict equity, an exchange does not enrich, since the values exchanged are supposed equal. If they have been entirely created by labour, nothing will have been added to the property of those exchanging; on both sides, all they possess has been made by labour, either direct or indirect. But for this to be so, the exchange must have been absolutely equitable and the things exchanged balance exactly. To achieve this, many conditions would have to be fulfilled that do not exist in societies of the present day. It is even doubtful if they could ever be entirely realized. In any case, here we have property subject to a condition other than labour, that is, to the equity of contract. This simple interpretation of Mill does not, then, suffice in itself. In the second place, even if the system of contracts were changed in a way to satisfy all demands of absolute justice, property could still be acquired by other means which can in no way be related to labour.
Take inheritance, to begin with. The inheritor is endowed with goods and chattels of which he is not the originator and which he does not even owe to any act of the one who did create them. In certain circumstances, it is kinship alone that confers the right to property. Should we say that inheritance, no matter how it is governed, is a survival of the past that should disappear from the statute-book? There still remain donations and legacies by will or otherwise. Mill, who admits that inheritance goes against the moral notion of property, believes on the other hand that the right to bequeath by will or dispose of property by favour, is logically implicit in the notion. “The right of property”, he says, “implies the right to give at will the product of his labour to another individual and the right of that other to receive and enjoy it.” (ibid. p. 273.) If property, however, is to be respected and normal only where it is based on labour, how could it be justified when it is based on a legacy or donation? And if it be immoral to acquire it by way of a gift by favour, the practice in general of gifts would be condemned by that very fact. But, it is said, does not the right to possess logically carry with it the right to give? This proposition is not in the least self-evident; the right to enjoy the things we possess has never been absolute; it is always hedged about with restrictions. Why should one of these restrictions not have a bearing on the right to give? In fact, the right to give is already limited. An individual is not allowed to dispose of his property by fixing in advance to whom it should go after the death of the beneficiary. The right of gift or donation can therefore only be exercised to the benefit of one generation. This means that there is no immunity about the right. So there is no inherent anomaly in its being even more strictly limited. Furthermore, Mill himself admits that a limitation is needed, precisely because it is neither moral nor socially desirable for men to get richer in this way without any effort of their own. He proposes to decide the quota of what anyone might receive by way of a legacy. “I see nothing objectionable in fixing a limit to what any one may acquire by the mere favour of others, without any exercise of his faculties.” (ibid. p. 281). This is an admission that a gift or donation contravenes the principle whereby property is the product of labour.
Thus, if we admit this principle, we have to say that property, as it exists at present and as it has been since the beginning of societies, cannot in the main be justified as an institution. True, it is extremely likely that property will not be in the future what it has been up to the present; but the right to say that this or that form of it must disappear, requires more from us than merely showing that these forms conflict with an earlier principle. There still remains to demonstrate how they were able to establish themselves and under the influence of what causes, and to prove that these same causes are no longer actually present and active. We cannot demand that existing practices be put down on the score of an a priori axiom. Is it indeed possible that any contract could be absolutely equitable, or that there could be any society in which all gifts or donations would be prohibited? These are big problems, for which it is difficult to presume any answer. In any case, before knowing what property ought to be or should become, we should first have to know how it has become what it is and how we can account for the form it has in present-day societies. To this question, the theory of labour gives no answer at all.
But to go further, I would say that in itself labour could in no case become the primary cause of property. In every age, we see that labour does not produce the raw materials to which it is applied and that it presupposes implements or, at very least, physical media that it has not produced. The answer to this objection has been that these physical media have no value in themselves; that they must have been previously elaborated by the hand of man. We must recognize, however, that if these media are to acquire their value, they need to be elaborated to a greater or lesser degree, according to their state of development, and this in turn calls for labour of greater or lesser intensity. To get all it can yield out of the land, little effort is needed when the soil is fertile, but a great deal when it is not. And so properties that are equal in value may be founded on measures of labour that are very far from being equal. This means that in the one instance, the labour is replaced by something else. Furthermore, even when the natural means are in themselves without value, labour divorced from these means must needs be fruitless. So that the labour presupposes something other than itself, some point to which it must be applied, and that is this virtual value which the labour translates into the act. And this virtual value is not a negative one. The objection mentioned above might however apply in a more general way. In reducing property to terms of labour, we admit that the value of things derives from objective and impersonal causes, not subject to any appraisal. But nothing of the kind. The value depends on opinion and is a matter of opinion. If I build a house in a spot that suddenly becomes sought after for its qualities of charm or some other reason, its value becomes much enhanced. If, on the contrary, favour turns against it, it may reach the point of having no value at all. A mere whim of fashion can make this or that object or stuff, for instance, and hence the natural means employed in manufacturing them, rise in price. My property, or what I own, might double its market value without my lifting a finger. On the other hand, the moment the new improved machines were invented, Jacquard machines became thereby valueless. The man who owned them was in the same position as one who owned nothing, even if he had had them built entirely by the fruits of his own labour. Thus, in all property, there is an element over and above the labour of the owner, even if the object owned is the product of his own hands. Besides the initial contribution—that of the raw material, there is an element in it that comes from the society. According to the trend of social tastes and needs, so our property may grow or decrease as we hold it, although we have no hand in these fluctuations. Shall we say that it is necessary and even imperative that things should be so, and that these positive or negative shifts must be, if the society is to be well served? Must there not be a stimulus to individual initiative and the spirit of novelty, and a kind of penalty for the spirit of routine and inertia? It is certain that however economic life be organized, the value of things will depend always on public opinion and it is a good thing this should be so. Nevertheless, the fact remains that there are values, too, and hence, elements in property that do not derive from labour. We may even admit that sometimes these elements are the fruits of some timely foresight, and we can see in them the expression of a natural talent. How often it happens that these elements become an addition to the things we own, or are taken away from them, owing to some simple encounter or by pure chance. I could not foresee that a main highway was to run alongside my property, but this brings an increase in value, that is, it grows automatically. And again, drastic changes in machinery may bring ruin on the real property of a manufacturer.
So it is in vain that we may try to make any deduction about things, starting from the person. These terms are heterogeneous. The law that associates them is synthetic in its effect. There is a cause exterior to them, which brings about their association.
Kant was well aware of this fact. It is true, he says, that if we see in property only a material holding, it is easy to demolish it by a process of analysis. If I am linked physically to a certain object, if I keep it in my hands, for example, any one who lays hold of it without my consent is trespassing on my internal freedom. “The proposition expressing the principle of an empirical rightful possession does not thus go beyond the right of a person in reference to himself.” (Princ. of Priv. Right, para. vi.) But how does it happen that I can call a thing my own when I do not possess it physically? In the first case the thing made one with myself; now, it is separate, it is something different from myself. It can, then, only be attached to me by a synthetic bond. What forms the basis of this bond? (ibid. para. vi.)
Such a bond, by definition, can only be an intellectual one, since it is independent of any condition imposed by time or place. Since the thing remains independent of my person whatever the place I may be living in, this dependence must have its source in some mental state which is itself, in some way, beyond space. I may say that I own a field—one that is situated where I myself am not: “the question here is only one of an intellectual relation between the object and myself.” This relation is founded on an act of my will. Indeed, my will also is free of any spatial condition; what the will decrees is valid and binding for all men alike, wherever they are placed. The will determines their relations, independent of any place they may be in, for it is universal. It is beyond what is perceptible by the senses and therefore the rules it lays down do not allow of their application being limited by any condition that is perceptible by the senses. This proposition is especially obvious if we admit the principles of the Critique. Indeed, according to Kant, whilst intelligence and thought are subject to the laws of time and place, it is quite otherwise with the will.
Thought is related to phenomena; it is in the world of phenomena, and the mind cannot apprehend phenomena outside of a spatial or temporal milieu. But the will is the faculty of the noumenon, of the entity or thing in itself. The will, then, is outside these phenomenal appearances, to which, therefore, its actions cannot be subject. If, then, I am justified in willing an object exterior to me to be mine, this act of my will is valid whenever I happen to be in space, since space is unknown to my will. Since, on the other hand, my will has a right to respect, whenever it is legitimately exercised, it is enough that my will shall have legitimately decided to declare this object its own, for the appropriation in itself to be valid de jure and not only de facto. So it would be this particular feature (by virtue of which my will is to be respected and to have sanctity for others whenever it is exercised without violating the rule of law) which alone could create an intellectual bond between these things and my person. It is clear, however, that this interpretation can be dissociated from the hypothesis of the Critique and maintained by some other method. For, in general, it is recognized that a decision of my will is not subject to laws, like the movements of my body. By my will, I can free myself of space. I can will a thing to be mine independently of any local situation. The essential point of this doctrine is not the philosophic theory on the relativity of time and space: it is the idea that when my will has asserted itself according to its right it must be respected; in a word, it is the sacred character of the will, so long as it itself conforms to the law of conduct.
But, as we see, the interpretation is not complete. It still remains to demonstrate that I may will an object to be my own without failing in the principle of the right, whereby this exercise of my will is legitimate. Kant invoked another principle to make this clear.
Let us first clearly define the range of the right that I thus assume as mine.
“If, by word or deed, I declare my will that some external thing shall be mine, I make a declaration that every other person is obliged to abstain from the use of this object upon which my will is exercised. … But this claim assumes that I, reciprocally, acknowledge myself bound to observe a similar abstention towards every other in respect of what is externally theirs. I am therefore not bound to respect what another person declares to be his, unless every other person likewise guarantees for his part that he will act in relation to what is mine on the same principle.” (ibid. para. viii.)
My own individual will, being only individual, cannot lay down the law for others. Such an obligation cannot be decreed except by a collective will set above each individual will taken separately. “I cannot, in the name of my own individual will, oblige any one to abstain from the use of a thing, in respect of which he would otherwise be under no obligation; I can do this therefore only in the name of the collective will of all united in a relation of common possession.” (ibid. para. viii.) Each one must be bound by all, and a collectivity can bind its members concerning a given thing only if it has rights over this thing, that is, if it possesses it, collectively. We thus arrive at the following conclusion: in order that men may be justified in wishing to appropriate individual things, those things must have been originally possessed by a collectivity. And since the sole natural collectivity is that made up of the whole human race (since it is the only one that is complete, all others being only partial), the right of the intended appropriation implies an original community of things and derives from this fact. If we leave aside the idea of this common possession, the binding and reciprocal character presented by individual ownership becomes unintelligible. To what degree and in what sense has this original community of things any logical basis?
Let us suppose that the earth were an infinite plain, and that human beings were dispersed over it in such a way that they did not form any community amongst themselves: in these conditions it would not be possible for them to have any possession in common. But the earth is spherical and hence of limited surface area. Men are thus compelled by the unity of habitat to be in relation—thus they form a whole and this whole is the natural owner of the total habitat which it occupies, that is, of the earth. “All men are originally in rightful possession of the soil. … This possession is a possession in common, because of the connexion with each other of all places on the surface of the earth as a globe.’ (ibid. para. xiii.) Thus, in the beginning, the sole rightful possessor was mankind. In what way can mankind logically exercise this right? There are two different ways of interpreting this, and two only. Either mankind may declare that, since all belongs to it of right nothing could belong to any one person. Which is absurd; for if individuals do not exercise the right of collective ownership, it might as well not exist. This would in practice amount to denying the right of collective ownership. Or, mankind may acknowledge the right of each one to appropriate all that he can, with the reservation of concurrent rights of others. On this basis, the right would become a reality and pass to the act. Thus, the originating community of the soil was able to come about only by way of the appropriation we are discussing, with the reservation just mentioned. Herein lies the basis of our right to ‘will to have’ an exterior object ‘as our own’.
One last condition remains to be settled. I cannot, by virtue of the right I derive from mankind, appropriate any thing except on condition of not trespassing on the similar right possessed by others. How can this condition be carried into effect? It suffices and it must be that my appropriation shall be antecedent to that of others; that it should have the advantage of priority in time. “The act of taking possession … can accord with the law of the antecedent freedom of any one only on condition of having the advantage of priority in time … that is, of being the first act of taking possession.” (ibid. para. xiv). Once my will is declared, no other may declare himself in a contrary sense; but on the other hand, if no other will has been declared, mine may assert itself in complete freedom. Since my will to appropriate is asserted by occupancy, the condition on which the legitimacy of my appropriation depends, is to be the first occupier. With this reservation, no limit is set to my right. I may extend my possession as far as my powers allow. “The question arises of knowing how far the right goes, of taking possession of the land; I would reply: as far as the ability of having it in his power, that is, as far as the one who wills to appropriate it can defend it. It is as if the land were to say: ‘if you cannot protect me, neither can you command me’.” (Ibid. para. xv.)
Let us sum up. The human race is the ideal power of the soil. This right of ownership can only become reality through individuals. On the one hand, individuals have the right to will to appropriate all that they can of the common demesne, with the reservation that none shall trespass on the rights of others, a condition fulfilled by the single fact that the land appropriated is so far unoccupied. On the other hand, because the act by which this appropriation is made is an act of will, it is free of any relation to space. Thus it has the same moral value, whatever the place in which object and subject respectively may be situated. In this way, the possession of some thing which I do not actually hold becomes justified. At the same time, we must add that this justification holds good not only de jure and in concept, but de facto. What lends support to this argument is that mankind ought logically to have the will for individuals to appropriate things in this way; but this entirely logical and ideal right only involves corresponding obligations in turn. It authorises the individual to repel any unlawful trespass, but it does not place at his service any ready means to enforce this right, for mankind is a group only in concept, just as it is proprietary only in concept. The alternative is that there must be true groups, or groups de facto, established, to protect the rights of each one. In other words, there are, to use Kant’s expression, no decisive acquisitions except within the Civil State of society (ibid. para. xv.) But this does not mean that it is only in the Civil State that there is a basis for the right of ownership: it only recognizes and guarantees it. These rights are founded in the nature of things, that is: (1) in the nature of the will, and (2) in the nature of mankind and man’s relationship with the earth he inhabits.
What gives weight to this theory is that it carries justification for the right of the first occupier—the most precise ever attempted: this is done in the name of the principles of morals that are in the main spiritualistic. “Labour forms no more than an external sign of possession.” (ibid. para. xv.) In short, if we strip away its dialectic, the theory can be reduced to quite simple terms. It is unreasonable and contrary to the character of mankind that things should not be taken possession of; any appropriation is lawful which is carried out on land that has already itself been thus appropriated; and the will that governs this action has the right to be respected once it has declared itself, even when the individual (or subject) and the thing are not in contact. We find here (as in Kantian morals as a whole), two principles associated and combined, although seemingly contradictory. One is the principle of the immunity of the individual will and the other, one that makes the individual will subordinate to a law superior to it. It is this superior law, in the end, that welds together the two heterogeneous entities that have to be united to form the notion of property. In that respect, this seems to us to have advantages over the theory concerning labour. It gives a better indication of the difficulty of the problem; it lays down clearly the dual nature of the two terms and states precisely where we get the third that acts as a link, that is to say, the collective will to which the separate wills are subject. The weakness of the theory lies in assuming that the priority of the occupancy is enough to give this occupancy a juridical and moral basis; that the wills do not mutually cancel each other out and do not mutually trespass on one another because they do not run against one another on the physical plane in respect of the same object. It is contrary to the principle of the theory to be satisfied with this exterior and physical compatibility. The wills are all that they are able to be, being independent of manifestations in space. If, then, I appropriate to myself an object which is not yet appropriated in fact, but which is already willed by others—and this will has been declared—I am denying the force of this will morally just as certainly as if material trespass had taken place.